Armand Bessette v. IKO Industries, Inc.

Boston, Massachusetts consumer law lawyer represented Plaintiff who sued Defendant on a breach of warranty theory.



Bessette purchased the roofing shingles in question for

his home in April and May of 1999 from Howe Lumber ("Howe") in

East Brookfield, Massachusetts. He installed them in June of that

year. Invoices from Howe, which Bessette received when he took

delivery of the shingles, list the shingles as "WEATHERWOOD CHATEAU

30YR."



Years later, on September 21, 2016, Bessette completed

IKO'S "Homeowner's Inquiry Survey" form. In a field marked,

"Describe Concern with Product," Bessette wrote: "shingles are

falling apart . . . pictures tell all!" The form indicates that

IKO's warranty services department received the completed form on

September 27, 2016.

IKO responded with an offer to pay Bessette $473.55. He

replied on February 16, 2017, with a demand letter for $29,000,

the "estimated expense to replace the roof," that he sent "pursuant

to" Massachusetts consumer protection law Mass. Gen. Laws ch. 93A

("Chapter 93A"). IKO replied a little less than two weeks later

by restating its offer to pay $473.55. IKO asserted in the reply

that "the sole and exclusive contract between the parties" was

IKO's "Limited Warranty."



IKO's Limited Warranty from June 1999 states in part

that "IKO Industries Inc. . . . warrants to the original consumer purchaser

that the shingles listed . . . are free from manufacturing defects

that result in leaks." It lists the

"CHATEAU" model of shingles as having a "Warranty Period" of "30"

years, and it provides that "[a]fter the first five (5) years from

completion of installation, IKO's maximum liability toward repairs

or replacement shall be a prorated amount of the current value of

the shingles only," computed according to a set proration formula.1

In addition, the Limited Warranty states, "NO ACTION FOR BREACH OF

THIS LIMITED WARRANTY SHALL BE BROUGHT LATER THAN ONE (1) YEAR

AFTER ANY CAUSE OF ACTION HAS ACCRUED."

In November 2018, after having replaced the shingles on

the roof of his home at a cost of $20,000, Bessette filed suit

against IKO in Massachusetts state court. The complaint alleged

claims under Massachusetts law in connection with the alleged

premature deterioration of the shingles for (1) breach of the

implied warranty of fitness for a particular purpose; (2) breach

of the implied warranty of merchantability on the grounds that

"[t]he shingles were unfit for their ordinary purpose of use, that

is, a roof on a residence functioning without the product being

defective and protecting against leakage for thirty years"; (3)

breach of an express warranty "that the shingles would last and

provide a weatherproof barrier for a minimum period of thirty years

from the date of installation"; and (4) violation of Chapter 93A,

the Massachusetts consumer protection law. The complaint sought

compensation for Bessette's actual damages, which had previously

been estimated at $29,000, as well as treble damages and attorney's

fees under Chapter 93A.



IKO removed the case on January 17, 2019 to the United

States District Court for the District of Massachusetts based on

diversity jurisdiction. Bessette v. IKO Indus., Inc., No. 4:19-

cv-40017, 2020 WL 6110943, at *1 (D. Mass. Aug. 18, 2020). The

District Court referred the case in late March to a magistrate

judge for a report and recommendations and, on March 27, 2020, IKO

moved for summary judgment.



A little less than a month later, the District Court

referred IKO's motion for summary judgment to the Magistrate Judge

to whom the case had been referred. In a report filed on August

18, 2020, the Magistrate Judge recommended granting IKO's motion

for summary judgment in full. Id. at *1. The District Court

adopted the Magistrate Judge's report and recommendations on

September 14, 2020. Bessette then filed this timely appeal, in

which he challenges the grant of summary judgment on his express

warranty, implied warranty of merchantability, and Chapter 93A

claims. He does not appeal the grant of summary judgment to IKO

on his implied warranty of fitness for a particular purpose claim.



See: Bassette v. IKO

Affirmed