Gavron v. Weather Shield Mfg., Inc et al

Filing 81

ORDER denying 55 Motion to Dismiss Count II of the Fourth Amended Complaint. Signed by Judge Paul C. Huck on 5/10/2011. (aay)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 10-22088-CIV-HUCK/O’SULLIVAN
MELVIN E. GAVRON,
Plaintiff,
vs.
WEATHER SHIELD MFG., INC.,
Defendant.
_____________________________/

ORDER DENYING MOTION TO DISMISS
Melvin E. Gavron alleges that Defendant Weather Shield Manufacturing, Inc. made
misrepresentations regarding windows and doors that it sold, thereby breaching its express warranty
and violating the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”). Weather Shield
filed a Motion to Dismiss Count II of the Fourth Amended Complaint, Gavron’s FDUTPA claim,
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons discussed below,
the Court denies Weather Shield’s Motion to Dismiss.
I.

RELEVANT FACTUAL BACKGROUND
Weather Shield designs, manufactures, and sells a Legacy Series of windows and doors.

Individually and on behalf of a class of similarly-situated individuals, Gavron accuses Weather
Shield of designing, manufacturing, marketing, selling, and distributing windows and doors that were
materially defective. Specifically, the putative class alleges that Weather Shield breached its express
warranty (Count I) and violated FDUTPA (Count II). Gavron defines the putative class as “[a]ll
persons and/or entities in Florida who own real property in which Weather Shield Legacy windows
and/or doors are installed.”

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As to his individual claims, Gavron alleges that he, through his contractor, purchased from
S&S Craftsmen, Inc. through Architectural Product Sales—a sales agent for S&S Craftsmen—more
than $300,000 of Weather Shield LifeGuard Legacy Series products. Those windows and doors were
installed by a licensed contractor in a home that Gavron was building. Gavron alleges that, within
weeks of installation, some of the doors and windows began to leak when it rained. Gavron’s
contractor informed him that the pitch of the foundation contributed to the leaking doors, but the
leaking continued after that problem was rectified.
Gavron then contacted Weather Shield, which gave him the name of a certified Weather
Shield installer—American Advantage Window Replacement—that he hired to address the leakage
problem. American Advantage removed and reinstalled the doors, which it said were previously
incorrectly installed. American Advantage also caulked the windows with silicone. Despite these
corrections, the windows and doors continued to leak. Additionally, the doors began to delaminate,
swell, and rot, and the glass of the windows distorted due to excess moisture. When Gavron and his
contractor called Weather Shield for assistance, they were informed that Weather Shield believed
the problem was faulty installation. When Gavron and his contractor removed one of the leaky doors
and deconstructed it, they found that the door had not been manufactured in compliance with testing
documentation and product approvals filed with the Miami-Dade Building Code Compliance
Office’s (“BCCO”) Product Control Division. Gavron and his contractor documented this process
with photographs.
Gavron’s contractor contacted a Weather Shield representative, who agreed that the doors
were not manufactured in accordance with the BCCO’s notice of acceptance, which included
specifications for the Legacy Series doors. Despite this, a Weather Shield representative notified
Gavron’s contractor that Weather Shield would not honor the warranty on the products. A BCCO
representative then visited Gavron’s property. On July 8, 2010, after this visit, the BCCO issued a
report finding “several non-conformities” in the Weather Shield doors and windows that Gavron
purchased, as compared to the specifications that the BCCO approved. Furthermore, in August 2010,
after conducting an audit of Weather Shield’s manufacturing facilities, the BCCO issued another

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report finding that Weather Shield exercised “inadequate Quality Control over miscellaneous aspects
of the fabrication process.”
Gavron alleges that Weather Shield advertised and represented that the Legacy Series
windows and doors were properly sealed and reinforced, such that they would resist air and water
infiltration.1 However, Gavron alleges that the Weather Shield Legacy Series windows and doors
are materially defective because they are not properly sealed with structural silicon, are improperly
finished, contain defective weather-stripping, and are misaligned.2 The result of these defects is that

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Gavron alleges that Weather Shield made the following advertising statements
regarding its Legacy Series windows and doors: (a) “Every Legacy Series door handle is
designed to open and close fluidly while multi-point locking mechanisms secure them tightly to
provide you with around-the-clock protection from the elements”; (b) “Legacy Series doors have
a thicker, heavy-duty 1-1/8" frame featuring a structural corner key with injected silicone
reinforces the frame for improved durability and resistance to air and water infiltration”; (c)
“Legacy Series windows have a thicker, heavy-duty 1-1/8" frame featuring a structural corner key
with injected silicone that reinforces the frame for improved durability and resistance to air and
water infiltration”; (d) “Their corner key construction adds durability and an indomitable
resistance to the elements”; and (e) “Three-point combination weather stripping on LifeGuard IG
hinged French doors ensures a leak-resistant seal that meets the water infiltration ratings of
coastal building codes.” (4th Am. Compl. ¶¶ 28–30, 63.)
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Specifically, Gavron alleges the following defects in the Legacy Series windows

and doors:
•

•

•

The joints between the door jams and the door thresholds
are not factory sealed with a structural silicone. This defect
permits air and water to enter the structure
The doors and windows contain a frame with “channels”
into which glass slabs are inserted. During the
manufacturing process, when glass slabs are inserted into
the channels, the channels are not filled with the structural
silicone sealant (an appropriate caulking material). The
uncaulked empty space between the glass and the channels
serve as a path for water to enter into the doors and
windows. This causes the doors and windows to develop
wood rot and the interior wood surfaces of the doors and
windows to delaminate.
The doors and windows contain either no exterior caulking
where glass meets other materials, such as wood or
aluminum, or spotty caulking. The uncaulked empty space
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the windows and doors permit air and water intrusion, causing the windows and doors to rot and
delaminate. Gavron alleges that these defects render the windows and doors worthless.
Gavron alleges that Weather Shield knew that these defects would be unknown and not easily
discoverable by consumers and, therefore, would defeat the consumers’ ordinary, foreseeable, and
reasonable expectations concerning the performance of Weather Shield Legacy Series doors and
windows. Gavron further alleges that these representations are misleading to consumers in the
absence of a disclosure that such defects exist.

between the glass and the other materials causes moisture
to build up between the layers of glazed/laminated glass,
causing distortion and delamination of the glass, while
concomitantly allowing water to pass into the doors and
windows and contribute to wood rot.
•
The doors and windows are manufactured using rusted
finish nails that are not properly spaced, resulting in
deficient structural integrity and permitting separation of
wood components. This further causes the development of
crevices, which enables water to pass into the interior
structure of the doors and windows.
•
Weather Shield weather-stripping is manufactured with a
non-uniform adhesive backing. Therefore, the product does
not properly adhere in many locations. This non-adhesive
weather-stripping allows air and water intrusion into the
Window Products, causing the Window Products to rot and
delaminate.
•
The windows evidence factory misalignment of
male/female dovetails. This misalignment renders the
windows virtually useless because they cannot be opened
and/or closed properly, which results in air and water
intrusion into the structure.
•
The rotting and swelling of the doors -- caused by air and
water intrusion -- undermines their structural integrity
which, in turn, causes the locking mechanism to fail.
(4th Am. Compl. ¶¶ 24, 54.)
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II.

PROCEDURAL HISTORY
Weather Shield filed its Motion to Dismiss Count II on January 18, 2011. After Gavron

responded, Weather Shield filed its Reply on February 7, 2011. On February 23, 2011, the Court
held a hearing on the Motion. At the hearing, the Court decided, and the parties agreed, that the
Court should stay the case pending the Eleventh Circuit’s decision in Fitzpatrick v. General Mills,
Inc., an appeal from this Court’s decision to certify a FDUTPA class action, which addressed the
issue of whether a plaintiff pleading a FDUTPA claim must plead reliance on alleged
misrepresentations by a defendant. The Eleventh Circuit entered its decision in that case on March
25, 2011. See Fitzpatrick v. General Mills, Inc. (Fitzpatrick II), 635 F.3d 1279 (11th Cir. 2011).
In response, the Court requested that the parties submit additional briefs analyzing the implications
of the Eleventh Circuit’s Fitzpatrick II decision for this case. The parties have done so, and the
Motion is now ripe for adjudication.
III.

ANALYSIS
A consumer’s claim for damages made pursuant to FDUTPA “has three elements: (1) a

deceptive act or unfair practice; (2) causation; and (3) actual damages.” Rollins, Inc. v. Butland, 951
So.2d 860, 869 (Fla. 2d Dist. Ct. App. 2006). Defendant Weather Shield contends that Plaintiff
Gavron has not sufficiently pled causation. Weather Shield also argues that Gavron fails to
sufficiently allege that Weather Shield was aware that the Legacy Series doors and windows
contained material defects. The Court considers these arguments, in turn, below.
A.

Reliance

In its supplemental briefing to the Court, Weather Shield explains that its causation argument
is that Gavron has failed to allege reliance on Weather Shield’s alleged misrepresentations.3 The

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In its Motion to Dismiss, Weather Shield also argued that Gavron failed to plead
causation because Gavron failed to indicate that he was exposed to Weather Shield’s alleged
misrepresentations. Weather Shield does not assert that this argument survived the Eleventh
Circuit’s decision in Fitzpatrick II.
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Court finds that Gavron was not required to plead reliance on Weather Shield’s alleged
misrepresentations in order to state a claim pursuant to FDUTPA.
As both parties are aware, the Court is familiar with the discordant decisions in the Florida
appellate courts regarding a plaintiff’s obligation pursuant to FDUTPA to plead his reliance on an
alleged misrepresentation. See Fitzpatrick v. General Mills, Inc. (Fitzpatrick I), 263 F.R.D. 687,
694–95 (S.D. Fla. 2010); In re Court Reporting Firms, 715 F. Supp. 2d 1265, 1281–82 (S.D. Fla.
2010). In fact, the Court has noted its concern regarding the conflicting decisions in the Florida
appellate courts. 263 F.R.D. at 694. While disagreements persist in the Florida appellate courts, the
Eleventh Circuit has simplified the issue for this Court. In Fitzpatrick II, the Eleventh Circuit
affirmed this Court’s reasoning in Fitzpatrick I that a plaintiff need not allege reliance on an
allegedly false statement in order to state a claim pursuant to FDUTPA. Fitzpatrick II, 635 F.3d at
1283 (“In its analysis, the district court repeatedly stated that a plaintiff need not prove reliance on
the allegedly false statement to recover damages under FDUTPA, but rather a plaintiff must simply
prove that an objective reasonable person would have been deceived. And, this is correct.”).
In light of the Eleventh Circuit’s decision in Fitzpatrick II, the Court finds that Gavron need
not allege his reliance on Weather Shield’s alleged misrepresentations in order to state a FDUTPA
claim. Without citing to case law indicating that the Court has discretion to do so, Weather Shield
argues strenuously that the Court may disregard the Eleventh Circuit’s pronouncements of law
regarding whether a plaintiff asserting a FDUTPA cause of action must allege reliance. The Court
declines Weather Shield’s invitation to “reverse” the Eleventh Circuit on this issue. Gavron alleges
facts indicating that Weather Shield made misleading representations that would deceive an
objectively reasonable person. Thus, in accordance with the Eleventh Circuit’s interpretation of
FDUTPA, the Court finds that Gavron adequately has alleged causation.
B.

Weather Shield’s Knowledge of Alleged Defects

Weather Shield also argues that Gavron’s FDUTPA cause of action fails to state a claim
because Gavron does not allege that Weather Shield had knowledge of the defects that Gavron
alleges. Weather Shield’s argument assumes that a defendant must have knowledge of an alleged
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defect in order to state a FDUTPA claim. Weather Shield relies solely on Ashcroft v. Iqbal, 129 S.
Ct. 1937 (2009) and its progeny in arguing that Gavron has not pled knowledge sufficiently, pursuant
to Rule 9(b) of the Federal Rules of Civil Procedure. In turn, Gavron argues that a plaintiff asserting
a FDUTPA claim is not required to plead a defendant’s knowledge of an alleged defect. The Court
finds that FDUTPA does not require Weather Shield to have subjective knowledge of alleged defects
in order for Gavron to state a viable FDUTPA claim.
It is perhaps telling that Weather Shield, in support of its argument, does not cite to any case
specifically discussing FDUTPA’s requirements. As discussed previously, a consumer’s claim for
damages made pursuant to FDUTPA “has three elements: (1) a deceptive act or unfair practice; (2)
causation; and (3) actual damages.” Rollins, Inc. v. Butland, 951 So.2d 860, 869 (Fla. 2d Dist. Ct.
App. 2006). FDUTPA proscribes “[u]nfair methods of competition, unconscionable acts or
practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce . . . .”
Fla. Stat. § 501.204(1). The Court’s research reveals that the Florida Supreme Court teaches that
a deceptive act occurs when “there is a representation, omission, or practice that is likely to mislead
the consumer acting reasonably in the circumstances, to the consumer’s detriment.” PNR, Inc. v.
Beacon Prop. Mgmt., Inc., 842 So.2d 773, 777 (Fla. 2003) (citing Millenium Commc’ns &
Fulfillment, Inc. v. Office of the Attorney Gen., 761 So.2d 1256, 1263 (Fla. 3d Dist. Ct. App. 2000)).
Thus, the Act focuses on whether an act is deceptive, not whether a defendant knew that the
allegedly violative conduct was occurring. See Orkin Exterminating Co. v. Federal Trade Comm’n,
849 F.2d 1354, 1368 (11th Cir. 1988) (stating, in the context of a Federal Trade Commission Act
violation case, “[g]iven that a practice may be deceptive without a showing of intent to deceive, it
is apparent that a practice may be found unfair to consumers without a showing that the offending
party intended to cause consumer injury”).4 Weather Shield does not cite any case holding that a

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FDUTPA provides that “in construing subsection (1), due consideration and great
weight shall be given to the interpretations of the Federal Trade Commission and the federal
courts relating to s. 5(a)(1) of the Federal Trade Commission Act . . . .” Fla. Stat. § 501.204(2).
Because FDUTPA is the state counterpart to the Federal Trade Commission Act, a state court
“deciding whether an act or practice may be deemed deceptive . . . must give due consideration
and great weight to the interpretations made by the Federal Trade Commission and the federal
courts.” Millenium Commc’ns & Fulfillment, Inc. v. Office of the Attorney Gen., 761 So.2d
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defendant’s subjective knowledge of a deceptive practice is relevant to an analysis regarding whether
a plaintiff states a claim pursuant to FDUTPA. Weather Shield also does not argue that Gavron has
failed to allege that Weather Shield made representations and omissions that were likely to mislead
a consumer acting reasonably in the circumstances. Thus, the Court finds that Weather Shield does
not succeed in its argument that Gavron’s FDUTPA claim fails merely because Gavron does not
allege that Weather Shield had knowledge of the alleged defects.
IV.

CONCLUSION
For the foregoing reasons, the Court finds that Gavron states a FDUTPA claim in Count II

of the Fourth Amended Complaint. Therefore, Weather Shield’s Motion to Dismiss COUNT II is
DENIED.
DONE AND ORDERED in Chambers, Miami, Florida, on May 10, 2011.

__________________________
Paul C. Huck
United States District Judge
Copies furnished to:
All Counsel of Record

1256, 1263 (Fla. 3d Dist. Ct. App. 2000).
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