Seltzer v. Atlas Roofing Corporation

Filing 66

OPINION AND ORDER granting (50)/(382) Motion for Summary Judgment as to Plaintiff Brian David Seltzer. Signed by Judge Thomas W. Thrash, Jr. on 6/8/18. Associated Cases: 1:13-md-02495-TWT, 1:13-cv-04217-TWT(jkl)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
IN RE ATLAS ROOFING
CORPORATION CHALET SHINGLE
PRODUCTS LIABILITY LITIGATION

MDL DOCKET NO. 2495
1:13-md-2495-TWT

BRIAN DAVID SELTZER
on behalf of himself and all others
similarly situated,
Plaintiff,
v.

CIVIL ACTION FILE
NO. 1:13-CV-4217-TWT

ATLAS ROOFING CORPORATION,
Defendant.
OPINION AND ORDER
This action arises out of the marketing and sale of allegedly defective
roofing shingles. It is before the Court on the Defendant’s Motion for Summary
Judgment [Doc. 58]. For the reasons set forth below, the Defendant’s Motion for
Summary Judgment [Doc. 58] is GRANTED.
I. Background
The Plaintiff Brian David Seltzer is the owner of a home containing Atlas
Shingles (the “Shingles”).1 The Defendant Atlas Roofing Corporation designed,

1

It should be noted that – for purposes of this lawsuit –
Chalet/Stratford Shingles are indistinguishable. See Primary Mot. for Class
Cert. [Doc. 57], Ex. Tab 14, Thomas Dep., at 35 under No. 13-cv-02195-TWT.
The differences between the two Shingles relate to aesthetics, not design. Id.
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manufactured, and sold the Shingles.2 The Defendant developed the Shingles in
the 1990s as a line of “overlay” products intended to provide an affordable
shingle with the look of the more expensive architectural shingles.3 In 2010, the
Defendant discontinued sales of the Shingles.4 The Plaintiff alleges that the
Shingles are defective in design, and filed this action seeking to represent a
class of homeowners who own homes with the Shingles.
In 2003, the Plaintiff purchased his home in Cleves, Ohio from a builder.5
Prior to the completed construction of the home, the Plaintiff decided to upgrade
his roof.6 The Plaintiff claims that he and his wife chose the Shingles after
viewing a booklet of sample shingles with the builder.7 The Plaintiff purchased
the newly-constructed home with the Shingles already purchased and installed
by a contractor.8 In 2005, the Plaintiff noticed granule loss from his roof that
prompted him to contact his builder.9 In 2012, the Plaintiff filed a claim with his

2

Pl.’s Statement of Additional Material Facts ¶¶ 1-2.

3

Id. ¶ 2.

4

Id. ¶ 33.

5

Def.’s Statement of Material Facts ¶ 1.

6

Pl.’s Statement of Additional Material Facts ¶ 13.

7

Id. ¶ 14.

8

Def.’s Statement of Material Facts ¶¶ 2-3.

9

Pl.’s Statement of Additional Material Facts ¶ 37.

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insurance company for damage to his roof.10 In May 2013, the insurance
company paid to replace the Shingles on the Plaintiff’s roof.11 The Shingles were
removed and replaced with a different brand of shingles.12 The Plaintiff did not
keep any of the Shingles that were removed from his roof.13 According to the
Plaintiff, prior to this replacement, an inspector observed a leak in the Plaintiff’s
garage.14 After the insurance company replaced the Plaintiff’s roof, the Plaintiff
filed a warranty claim with the Defendant.15 The Defendant informed the
Plaintiff that he needed to submit a sample of the Shingles on his roof, which he
was unable to do.16
On July 9, 2013, the Plaintiff filed this action in the U.S. District Court
for the Eastern District of Kentucky. On December 20, 2013, the Judicial Panel
on Multidistrict Litigation transferred this action to be consolidated with the
multidistrict litigation pending before this Court.17 The Plaintiff’s remaining
claims are for product defect in design or formulation under the Ohio Products

10

Def.’s Statement of Material Facts ¶ 5.

11

Id. ¶ 7.

12

Id. ¶ 10.

13

Id. ¶ 11.

14

Pl.’s Statement of Additional Material Facts ¶ 38.

15

Def.’s Statement of Material Facts ¶ 12.

16

Id. ¶¶ 12, 14.

17

See Transfer Order [Doc. 16] under No. 1:13-cv-004217-TWT.

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Liability Act (the “OPLA”) (Count I), negligence (Count II), unjust enrichment
(Count III), declaratory relief (Count IV), breach of express warranty (Count V),
and breach of implied warranties of merchantability (Count VI). The Defendant
now moves for summary judgment as to each of these claims.
II. Legal Standard
Summary judgment is appropriate only when the pleadings, depositions,
and affidavits submitted by the parties show no genuine issue of material fact
exists and that the movant is entitled to judgment as a matter of law.18 The
court should view the evidence and any inferences that may be drawn in the
light most favorable to the nonmovant.19 The party seeking summary judgment
must first identify grounds to show the absence of a genuine issue of material
fact.20 The burden then shifts to the non-movant, who must go beyond the
pleadings and present affirmative evidence to show that a genuine issue of
material fact exists.21 “A mere ‘scintilla’ of evidence supporting the opposing
party’s position will not suffice; there must be a sufficient showing that the jury
could reasonably find for that party.”22

18

FED. R. CIV. P. 56(a).

19

Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970).

20

Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).

21

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).

22

Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990).

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III. Discussion
A. Causation and Damages
First, the Defendant argues that the Plaintiff’s claims fail because he has
failed to produce evidence establishing causation and damages.23 Specifically,
the Defendant contends that the Plaintiff has provided no evidence showing that
his damages were caused by a defect in the Shingles.24 The Plaintiff responds
that the expert opinion of Dean Rutila creates a dispute of fact as to causation.25
However, the Court concludes that the Plaintiff has failed to produce sufficient
evidence as to causation to avoid summary judgment on this issue.
Causation is an essential element of claims for negligence and strict
products liability.26 As this Court previously noted, “the alleged defect in the
Shingles must have caused a class member’s injuries in order for that class
member to recover.”27 “If the roof fails due to hail or wind damage or improper

23

Def.’s Mot. for Summ. J., at 4.

24

Id.

25

Pl.’s Br. in Opp’n to Def.’s Mot. for Summ. J., at 6.

26

See In re Meridia Prods. Liability Litig., 328 F. Supp. 2d 791, 797

(N.D. Ohio 2004) (“If Defendants are correct, then Plaintiffs’ claims for strict
liability (all theories thereof), negligence, and negligence per se must fail. After
all, causation of an alleged injury is an element of each of these claims.”); see
also Macy & Co. v. Otis Elevator Co., 554 N.E.2d 1313, 1316 (Ohio 1990) (“In
order for a party to recover in an action for products liability based upon strict
liability in tort, several elements must be proven, including the one that the
damage or injury was directly and proximately caused by the product defect.”).
27

See [Doc. 57] at 22.

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installation, the homeowner-class member has not been damaged.”28 According
to the Defendant, the Plaintiff has failed to provide evidence that the alleged
defect in the Shingles, and not some other factor such as hail or wind damage,
caused his damages. The Plaintiff, in response, argues that Dean Rutila’s expert
opinion creates a factual dispute as to causation that allows his claims to
survive summary judgment.29 The Plaintiff highlights Rutila’s conclusion that
deterioration of the Shingles studied was so severe that future failures, such as
leaks, were inevitable, and that there were most likely other roofs out there that
have already leaked due to defects in the Shingles.30 According to the Plaintiff,
this conclusion, coupled with the Plaintiff’s personal observation of granule loss
from his roof, creates a triable issue of fact as to whether the defects in the
Shingles caused the damage to his roof.31
However, the Plaintiff has not satisfied his burden as to causation
because he has failed to provide sufficient evidence that a reasonable jury could
rely upon to conclude that the Shingles caused his alleged damages. Evidence
that the Shingles are defective in general, and could cause leaks in general, is
not enough to establish that the specific damage to the Plaintiff’s home resulted
from defects in the Shingles on his roof. To recover for these injuries, the
28

Id.

29

Pl.’s Br. in Opp’n to Def.’s Mot. for Summ. J., at 6.

30

Id.

31

Id.

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Plaintiff must prove that the alleged defect caused his Shingles to prematurely
fail, not just that the defect exists. Rutila’s expert opinion does not establish
that the leak in the Plaintiff’s roof resulted from a defect in the Shingles. Rutila
studied 351 roofs, not including the Plaintiff’s roof. Rutila admits that he was
unable to show that any of the alleged defects in the Shingles, including blisters,
cracks, and loss of granule surfacing, resulted in a leak in any of the roofs he
studied.32 In fact, he concedes that none of the roofs he studied had experienced
any leaks as a result of manufacturing defects in the Shingles.33 Instead, Rutila
stated that he believed that the Shingles studied “will leak” in the future.34 The
Plaintiff has provided no other evidence in support of this proposition. In fact,
the Plaintiff has not provided any evidence of causation specific to the Shingles
on his roof. Rutila’s findings, if taken as true, merely establish that the Shingles
generally have a defect, and that, in general, this defect could cause roofs to fail
in the future. This evidence is not sufficient to establish that a manufacturing
defect, as opposed of other causes, such as improper installation, inadequate
ventilation, or environmental factors, caused the specific damages that the
Plaintiff has alleged.

32

Rutila Dep. at 84-85, 124, 167.

33

Id.

34

Id. at 84-85.

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Thus, the Plaintiff cannot claim damages resulting from a failure of the
Shingles. Even if the Plaintiff proves a defect existed in the Shingles in general,
he cannot recover damages based on that fact alone. He also must prove that the
alleged defect, and not some other factor such as wind or hail damage, caused
his roof to prematurely fail.35 The evidence that the Plaintiff has produced fails
to do this. Since this evidence would not allow a reasonable jury to conclude that
a defect in the Shingles caused his roof to leak, the Plaintiff cannot recover for
damages resulting from that leak.
Therefore, the Plaintiff can only show that the Shingles exhibited granule
loss and blistering. However, this is a form of economic loss, which the Plaintiff
cannot recover for under his claims for negligence and violation of the OPLA.
“The economic-loss rule generally prevents recovery in tort of damages for

35

See [Doc. 57] at 23 (“[The Plaintiffs] also must prove that the

alleged defect caused their roof to prematurely fail. For the class members who
have already had their roofs replaced or repaired, this will be an especially factintensive inquiry.”); cf. Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 605 (3d
Cir. 2012) (“[I]t is undisputed that even if Marcus could prove that Bridgestone
RFTs suffer from common, class-wide defects, those defects did not cause the
damage he suffered for these two tires: the need to replace them. In this sense,
Marcus is no different than a class member who, seconds after buying his car,
pulls off the dealership lot and runs over a bed of nails, as neither can claim a
‘defect’ caused his tires to go flat and need replacement. Because Marcus’s
common law claims require an individualized inquiry into why any particular
consumer’s Bridgestone RFTs went flat and had to be replaced, the District
Court abused its discretion in finding that the claims satisfy the predominance
requirement.”).
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Purely economic loss.”36 “Under the economic loss rule, plaintiffs who have only
suffered an economic loss from a defective product—defined as losses
attributable to the decreased value of the defective product itself (direct
economic loss) and consequential losses by the purchaser of the defective product
(indirect economic loss)—cannot recover economic losses premised on tort
theories of recovery.”37 Furthermore, “[i]t is well-established that under the
OPLA, claimants cannot recover only economic damages.”38 Therefore, since the
Plaintiff cannot prove that a defect in the Shingles caused a roof leak or any
other type of external injury, and since the OPLA and Ohio tort law do not allow
recovery for purely economic loss, the Plaintiff’s negligence and OPLA claims
fail as a matter of law.
B. Express and Implied Warranty Claims
Next, the Defendant moves for summary judgment as to the Plaintiff’s
warranty claims. The Defendant argues that the Plaintiff’s warranty claims fail
because: (1) the Limited Warranty does not cover wind damage; (2)

36

Corporex Dev. & Constr. Mgmt., Inc. v. Shook, Inc., 835 N.E.2d

701, 704 (Ohio 2005).

Caterpillar Fin. Servs. Corp. v. Harold Tatman & Son’s Enters.,
Inc., 50 N.E.3d 955, 963-64 (Ohio Ct. App. 2015); see also Shook, Inc., 835
37

N.E.2d at 704 (“The well-established general rule is that a plaintiff who has
suffered only economic loss due to another’s negligence has not been injured in
a manner which is legally cognizable or compensable.”).

Huffman v. Electrolux N. Am., Inc., 961 F. Supp. 2d 875, 881 (N.D.
Ohio 2013) (citing State Farm Mut. Auto. Ins. Co. v. Kia Motors Am., Inc., 828
38

N.E.2d 701, 707 (Ohio Ct. App. 2005)).
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representations in marketing materials were not part of the basis of the bargain;
(3) the Plaintiff did not provide the Defendant with notice and the opportunity
to evaluate the warranty claims; and (4) the Plaintiff lacks privity with the
Defendant, which is necessary for a breach of implied warranty claim.39 The
Court concludes that the Plaintiff’s warranty claims fail because he failed to
provide adequate notice of his claims.
“To state a claim for breach of warranty under the UCC, plaintiff must
plead that: 1) a warranty existed; 2) the product failed to perform as warranted;
3) plaintiff provided defendant with reasonable notice of the defect; and 4)
plaintiff suffered injury as a result of the defect.”40 A buyer “must within a
reasonable time after he discovers or should have discovered any breach notify
the seller of breach or be barred from any remedy.”41 If a plaintiff fails to provide
this pre-litigation notice, then [his or her] breach of warranty claim must be
dismissed.42 “Notice of breach serves two distinct purposes. First, express notice
opens the way for settlement through negotiation between the parties. Second,
proper notice minimizes the possibility of prejudice to the seller by giving him
‘ample opportunity to cure the defect, inspect the goods, investigate the claim

39

Def.’s Mot. for Summ. J., at 6-10.

40

St. Clair v. Kroger Co., 581 F. Supp. 2d 896, 902 (N.D. Ohio 2008).

41

OHIO REV. CODE ANN. § 1302.65(C)(1).

42

St. Clair, 581 F. Supp. 2d at 902.

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or do whatever may be necessary to properly defend himself or minimize his
damages while the facts are fresh in the minds of the parties.’”43
The Plaintiff argues that he provided adequate notice by filing a warranty
claim with the Defendant before initiating this lawsuit. However, this notice,
which was provided after the Plaintiff had already removed and replaced the
Shingles, is insufficient under Ohio law.44 To satisfy this requirement, the
Plaintiff must provide notice before making any repairs or replacements.45 In

Litehouse Products, Inc. v. A.M.I. International, Ltd., the Court of Appeals of
Ohio dealt with a case where the “Plaintiff simply took it upon itself to repair
the alleged defects without notifying defendant of any problems.”46 The court
determined “that in such a case notice after the repairs were made and before
defendant had any opportunity to take action was not reasonable.”47 Thus, “[i]n

43

Standard Alliance Indus., Inc. v. Black Clawson Co., 587 F.2d 813,

826 (6th Cir. 1978) (internal citations omitted).
44

See Litehouse Prods., Inc. v. A.M.I. Int’l, Ltd., 1984 WL 4539, at *3

(Ohio Ct. App. Mar. 8, 1984) (concluding that “[t]he only notice to defendant
concerning alleged defects” in the defendant’s products did not satisfy the notice
requirement because it “was made more than a year after plaintiff had
effectuated repairs”).
45

Id. at *4.

46

Id.

47

Id.

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order to avail itself of the warranty protections plaintiff was required to notify
the defendant of the alleged defects before repair attempts were undertaken.”48
This conclusion comports with the policies underlying the notice
requirement. In Litehouse Products, the court explained that:
[P]laintiff has failed to consider the reason for requiring timely
notice to the seller. Under most circumstances reasonable notice
of defect should be made prior to any attempted repairs unless the
contract or warranty provides otherwise. This permits the seller
time to correct the problem. If, after notice is given, the seller
makes no response nor any attempt to rectify the situation, resort
to self-help would not necessarily preclude recovery under
warranty. Similarly, in an emergency situation a buyer may
reasonably resort to self-help before notifying the seller of the
problem.49
Thus, concluding that the Plaintiff’s post-replacement warranty claim satisfies
this requirement would not further the reasoning behind such a requirement.
Here, the Plaintiff never provided the Defendant with the opportunity to cure
any alleged defects in the Shingles. Since the Plaintiff did not provide proper
notice, his warranty claims must fail.50 The Plaintiff then argues that the
sufficiency of his notice is, at a minimum, an issue of fact for a jury to decide.51
However, the Plaintiff’s purported notice is insufficient as a matter of law to

48

Id.

49

Id.

50

St. Clair v. Kroger Co., 581 F. Supp. 2d 896, 902 (N.D. Ohio 2008)

(“St. Clair’s failure to notify Kroger of its alleged breach before bringing this
lawsuit precludes her from proceeding further with her claim.”).
51

Pl.’s Br. in Opp’n to Def.’s Mot. for Summ. J., at 11.

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satisfy this requirement, and does not present a question of fact for the jury to
decide.52 Therefore, the Defendant is entitled to summary judgment as to the
Plaintiff’s warranty claims.
C. Unjust Enrichment
Next, the Defendant moves for summary judgment as to the Plaintiff’s
unjust enrichment claim. “Unjust enrichment occurs when a person has and
retains money or benefits which in justice and equity belong to another.”53 To
prove an unjust enrichment claim under Ohio law, the plaintiff must
demonstrate “(1) a benefit conferred by a plaintiff upon a defendant; (2)
knowledge by the defendant of the benefit; and (3) retention of the benefit by the
defendant under circumstances where it would be unjust to do so without
payment.”54 However, “unjust enrichment is not an available remedy when a
plaintiff does not make her purchase directly from the manufacturer.”55 Since

52

Litehouse Prods., Inc., 1984 WL 4539, at *3 (“[P]laintiff contended

that whether their notice to defendant a year or more after the defects were
discovered was reasonable was a matter of fact for the jury to decide. We cannot
agree.”).
53

Johnson v. Microsoft Corp., 834 N.E.2d 791, 799 (Ohio 2005)

(internal quotations omitted).
54

Id.

Young v. Carrier Corp., No. 4:14CV0974, 2014 WL 6617650, at *7
(N.D. Ohio Nov. 21, 2014); see also Hoffer v. Cooper Wiring Devices, Inc., No.
55

1:06CV763, 2007 WL 1725317, at *4 (N.D. Ohio June 13, 2007) (noting that an
unjust enrichment claim failed because the “purchase of products within a ‘chain
of sale’” is insufficient to show that a plaintiff “has bestowed a benefit on a
defendant”).
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the Plaintiff did not purchase the Shingles directly from the Defendant, his
claim for unjust enrichment fails as a matter of law.
D. Declaratory Judgment
Finally, the Defendant moves for summary judgment as to the Plaintiff’s
request for declaratory relief. 28 U.S.C. § 2201 provides that “[i]n a case of

actual controversy within its jurisdiction,” a federal court may render a
declaratory judgment.56 This language, which echoes the “case or controversy”
requirement of Article III of the Constitution, requires that there “be a
substantial continuing controversy between parties having adverse legal
interests.”57 Since the Defendant is entitled to summary judgment as to all of the
Plaintiff’s underlying substantive claims for relief, no “actual controversy”
exists.58 Therefore, the Defendant is entitled to summary judgment as to the
Plaintiff’s request for declaratory relief.
IV. Conclusion
For the reasons stated above, the Defendant’s Motion for Summary
Judgment [Doc. 58] is GRANTED.

56

28 U.S.C. § 2201(a) (emphasis added).

57

Emory v. Peeler, 756 F.2d 1547, 1552 (11th Cir. 1985).

Furthermore, due to the doctrine of res judicata, the Plaintiff will
be barred from asserting any actions in the future relating to this set of facts.
A declaratory judgment in this case would not have the practical consequence
of a “significant increase in the likelihood that the [Plaintiff] would obtain relief
that directly redresses the injury suffered,” depriving the Plaintiff of standing.
See Utah v. Evans, 536 U.S. 452, 464 (2002).
58

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SO ORDERED, this 8 day of June, 2018.
/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge

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