Mosaic at Vinings Condominium Association, Inc. v. Atlas Roofing Corporation

Filing 34

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART Defendant's (13) Motion to Dismiss for Failure to State a Claim in case 1:17-cv-04928-TWT. Plaintiff's express warranty claims under the Limited Warranty for design defects are dismis sed. Plaintiff's claims for fraudulent concealment (Count III), strict liability (Count IV), and negligence and negligent design (Count V) are dismissed as barred by the statute of limitations. Plaintiff's other claims remain. Signed by Judge Thomas W. Thrash, Jr. on 7/19/18. Associated Cases: 1:13-md-02495-TWT, 1:17-cv-04928-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

MOSAIC AT VININGS
CONDOMINIUM ASSOCIATION,
INC.,
Plaintiff,
v.

CIVIL ACTION FILE
NO. 1:17-CV-4928-TWT

ATLAS ROOFING CORPORATION,
Defendant.
OPINION AND ORDER
This is a multi-district action arising out of the marketing and sale of
allegedly defective roofing shingles. It is before the Court on the Defendant’s
Partial Motion to Dismiss [Doc. 13]. For the reasons set forth below, the
Defendant’s Partial Motion to Dismiss [Doc. 13] is GRANTED in part and
DENIED in part.
I. Background
The Plaintiff Mosaic at Vinings Condominium Association, Inc. is a
condominium association for the Mosaic at Vinings Condominiums.1 The

1

Am. Compl. ¶ 110.

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condominium units and pool house at Mosaic contain Atlas Shingles (the
“Shingles”).2 The Defendant Atlas Roofing Corporation designed, manufactured,
and sold the Shingles.3 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.4 The Defendant also provided
a limited thirty-year warranty against manufacturing defects (the “Limited
Warranty”).5 In 2010, the Defendant discontinued sales of the Shingles.6 The
Defendant represented, and continues to represent, that the Shingles have
enhanced aesthetic and cosmetic qualities, that they are durable, reliable, and
free from defects, and that they meet applicable building codes and industry
standards.7 The Plaintiff alleges that the Shingles are defective and fail to live
up to these representations.

2

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.
3

Am. Compl. ¶ 20.

4

Id. ¶ 79.

5

Id. ¶ 118.

6

Id. ¶ 9.

7

Id. ¶ 2.

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Mosaic is a condominium complex with fifteen buildings and 106
individual residential units.8 Mosaic also has a pool house for its members.9
Each of these buildings and the pool house have the Shingles installed on the
roofs.10 The Plaintiff and its members selected the Shingles for Mosaic’s roofs
because of the Limited Warranty and because of their builder’s representations
as to the Shingles’ quality and compliance with building codes and industry
standards.11 The Plaintiff controls and maintains certain common elements of
Mosaic, including the roofs and Shingles.12
The Plaintiff claims that the Shingles contain design defects and
manufacturing defects. According to the Plaintiff, the manufacturing process
“permitted moisture to intrude into the Shingles, which created gas bubbles
internal to the Shingles that expand upon exposure to the sun, resulting in
cracking, blistering and premature deterioration of the Shingles.”13 Due to these
manufacturing and design defects, the Shingles do not conform to the
Defendant’s representations and warranties.14 These defects can also cause the

8

Id. ¶ 111.

9

Id.

10

Id. ¶ 112.

11

Id. ¶¶ 116, 119.

12

Id. ¶ 113.

13

Id. ¶ 60.

14

Id. ¶ 62.

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Shingles to leak.15 The Plaintiff alleges that the Shingles on Mosaic’s roofs are
experiencing granule loss, blistering, and cracking.16 The Shingles have also
allegedly caused leaks at Mosaic, which have damaged roofing underlayment,
decking, framing components, drywall, and other components of the members’
homes.17 In September 2017, the Plaintiff placed the Defendant on notice of the
defects in the Shingles, and in October 2017, it filed a warranty claim with the
Defendant.18
On November 6, 2017, the Plaintiff filed this action in the Superior Court
of Cobb County.19 Then, on December 5, 2017, the Defendant removed to this
Court.20 In its Amended Complaint, the Plaintiff asserts claims for Breach of
Express Warranty (Count I), Violation of the Georgia Fair Business Practices
Act (Count II), Fraudulent Omission/Concealment (Count III), Strict Products
Liability (Count IV), Negligence/Negligent Design (Count V), and Litigation
Expenses (Count VI). The Defendant now moves for partial dismissal of the
Amended Complaint.

15

Id. ¶ 61.

16

Id. ¶ 124.

17

Id.

18

Id. ¶¶ 125-26.

19

See [Doc. 1-1].

20

See Notice of Removal [Doc. 1].

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II. Legal Standard
A complaint should be dismissed under Rule 12(b)(6) only where it
appears that the facts alleged fail to state a “plausible” claim for relief.21 A
complaint may survive a motion to dismiss for failure to state a claim, however,
even if it is “improbable” that a plaintiff would be able to prove those facts; even
if the possibility of recovery is extremely “remote and unlikely.”22 In ruling on
a motion to dismiss, the court must accept the facts pleaded in the complaint as
true and construe them in the light most favorable to the plaintiff.23 Generally,
notice pleading is all that is required for a valid complaint.24 Under notice
pleading, the plaintiff need only give the defendant fair notice of the plaintiff’s
claim and the grounds upon which it rests.
III. Discussion
A. Design Defects Under the Limited Warranty
The Defendant first moves to dismiss the Plaintiff’s express warranty
claims under the Limited Warranty for design defects. According to the
21

12(b)(6).
22

Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009); FED. R. CIV. P.
Bell Atlantic v. Twombly, 550 U.S. 544, 556 (2007).

See Quality Foods de Centro America, S.A. v. Latin American
Agribusiness Dev. Corp., S.A., 711 F.2d 989, 994-95 (11th Cir. 1983); see also
Sanjuan v. American Bd. of Psychiatry and Neurology, Inc., 40 F.3d 247, 251
23

(7th Cir. 1994) (noting that at the pleading stage, the plaintiff “receives the
benefit of imagination”).
24

See Lombard’s, Inc. v. Prince Mfg., Inc., 753 F.2d 974, 975 (11th

Cir. 1985), cert. denied, 474 U.S. 1082 (1986).
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Defendant, the Limited Warranty, which warrants that the Shingles will be free
from certain manufacturing defects, does not provide coverage for design
defects.25 Thus, to the extent that the Plaintiff asserts claims for breach of
express warranty due to design defects in the Shingles, the Defendant argues
that those claims must be dismissed. The Court agrees.
The Limited Warranty provides that “ATLAS ROOFING CORPORATION
(“Atlas”) warrants to you . . . that the roofing products listed in the chart below
are free from manufacturing defects, which result in leaks.”26 Thus, the Limited
Warranty explicitly covers manufacturing defects that result in leaks. In
contrast, the Limited Warranty does not warrant against design defects. Design
defects and manufacturing defects are distinct concepts under Georgia law.27
Unlike a manufacturing defect, which occurs when a product departs from its
intended design or condition, a design defect “exists when the product is built

25

Def.’s Partial Mot. to Dismiss, at 2-3.

26

Def.’s Partial Mot. to Dismiss, Ex. A [Doc. 13-1], at 2. “[T]he
analysis of a 12(b)(6) motion is limited primarily to the face of the complaint and
attachments thereto.” Brooks v. Blue Cross & Blue Shield, 116 F.3d 1364, 1368
(11th Cir. 1997). However, “where the plaintiff refers to certain documents in
the complaint and those documents are central to the plaintiff's claim, then the
Court may consider the documents part of the pleadings for purposes of Rule
12(b)(6) dismissal, and the defendant's attaching such documents to the motion
to dismiss will not require conversion of the motion into a motion for summary
judgment.” Id. at 1369.
27

Banks v. ICI Americas, Inc., 264 Ga. 732, 733 (1994) (“There are

three general categories of product defects: manufacturing defects, design
defects, and marketing/packaging defects.”).
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in accordance with its intended specifications, but the design itself is inherently
defective.”28 Courts in similar circumstances have not allowed recovery for
design defects under a breach of express warranty theory when the
manufacturer’s warranty covered only manufacturing defects.29 Therefore, to the
extent that the Plaintiff alleges breach of the Limited Warranty due to design
defects in the Shingles, those claims are dismissed.30
The Plaintiff argues that it is unsure whether the alleged defects are
manufacturing or design defects, and consequently dismissal is not warranted
at this time. Specifically, the Plaintiff contends that it is “premature” to argue
now that claims for design defects cannot be asserted, and that it is “entitled to
determine if Atlas will claim that these [defects] are manufacturing or design
defects which must be determined through discovery and cannot be dismissed

McCabe v. Am. Honda Motor Co., 100 Cal. App. 4th 1111, 1120
(Cal. Ct. App. 2002); see also Banks, 264 Ga. at 733-34 (“Unlike a
28

manufacturing defect case, wherein it is assumed that the design of the product
is safe and had the product been manufactured in accordance with the design
it would have been safe for consumer use, in a design defect case the entire
product line may be called into question and there is typically no readily
ascertainable external measure of defectiveness.”).
29

See, e.g., Garcia v. Chrysler Grp. LLC, 127 F. Supp. 3d 212, 227

(S.D.N.Y. 2015) (“[B]ecause plaintiffs only adequately allege design defects and
the Basic Limited Warranty does not cover design defects, to the extent that the
breach of express warranty claims . . . are based on the Basic Limited Warranty,
those claims are dismissed.”).
30

This does not mean that all of the Plaintiff’s arguments concerning
design defects must be dismissed for this reason. Instead, this holding focuses
on the narrow issue of whether the Limited Warranty covers design defects as
well as manufacturing defects.
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at this stage.”31 However, this argument misses the point. The Plaintiff cannot
recover for design defects under the plain terms of the Limited Warranty,
whether or not discovery ultimately reveals that design defects do in fact exist
in the Shingles. Even if design defects do exist, the Plaintiff would still not be
able to recover under the Limited Warranty. Therefore, it is not premature to
dismiss these claims at this time.
The Plaintiff also argues that these claims should survive because the
Defendant “failed to produce a product (shingles) that conformed to its express
warranties . . . regarding all applicable building codes and industry standards.”32
However, this misunderstands the Defendant’s argument. The Defendant
contends that it never made a warranty as to design defects in the Limited
Warranty. Therefore, even if design defects in the Shingles do exist, they cannot
constitute a breach of the Limited Warranty. No matter how defective the design
of the Shingles may be, the Defendant did not make a warranty or
representation as to design defects in the Limited Warranty. Therefore, this
argument is unpersuasive.
Finally, the Plaintiff argues that there was no “meeting of the minds”
with regard to the Limited Warranty, and the Defendant therefore cannot limit

31

Pl.’s Br. in Opp’n to Def.’s Partial Mot. to Dismiss, at 7.

32

Id., at 6-7.

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the Plaintiff’s recovery to solely manufacturing defects.33 Essentially, the
Plaintiff contends that it was never able to negotiate the terms of the Limited
Warranty, and consequently its limitation to manufacturing defects is
unenforceable. However, the Plaintiff cannot have it both ways. It cannot, on the
one hand, argue that the Defendant breached an express warranty created by
the Limited Warranty, while on the other hand argue that the limitation to
manufacturing defects does not apply because there was no meeting of the
minds as to the warranty. It cannot assert a claim under the Limited Warranty
while also disavowing the parts of the warranty that it does not find favorable.
Therefore, since the Limited Warranty limited recovery to manufacturing
defects, the Plaintiff’s express warranty claims based upon design defects must
be dismissed.
B. Economic Loss Doctrine
Next, the Defendant argues that the economic loss rule bars the Plaintiff’s
strict liability and negligence claims.34 “The economic loss rule provides that
absent personal injury or damage to property other than to the allegedly
defective product itself an action in negligence does not lie and any such cause
of action may be brought only as a contract warranty action.”35 This rule applies

33

Pl.’s Br. in Opp’n to Def.’s Partial Mot. to Dismiss, at 7-8.

34

Def.’s Partial Mot. to Dismiss, at 4.

35

Holloman v. D.R. Horton, Inc., 241 Ga. App. 141, 147 (1999).

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to strict liability claims as well.36 The Defendant contends that the Amended
Complaint fails to adequately allege damage to other property, and that the
Plaintiff’s tort claims consequently should be barred by the economic loss rule.
However, the Plaintiff has sufficiently alleged damage to other property
to avoid dismissal under the economic loss rule. In the Amended Complaint, the
Plaintiff alleges that the defective Shingles “are also causing leakage into
Plaintiff’s members’ homes, and damaging roofing underlayment, decking,
framing components, drywall, and other components of the home.”37 These
allegations, which allege damage to other, specific pieces of property, are
sufficient to sustain a claim for damage to other property that survives the
economic loss rule. The Defendant argues that this case is analogous to Buske

v. Owens Corning (Corp.) and Seaberg v. Atlas Roofing Corp., where this Court
concluded that the plaintiffs’ allegations of damage to other property were too
vague and insufficient to avoid dismissal under the economic loss rule.38
However, in Buske and Seaberg, the plaintiffs’ allegations were far more vague
and speculative than the allegations here. In Buske, the plaintiff’s complaint

See Home Depot U.S.A., Inc. v. Wabash Nat. Corp., 314 Ga. App.
360, 366 (2012) (“[T]he economic loss rule bars the plaintiff from seeking
recovery under strict liability or negligence theories.”).
36

37

Am. Compl. ¶ 124; see also id. ¶¶ 240, 255.

Buske v. Owens Corning (Corp.), No. 1:16-CV-709-TWT, 2017 WL
1062371, at *2 (N.D. Ga. Mar. 21, 2017); Seaberg v. Atlas Roofing Corp., No.
38

1:14-CV-3179-TWT, 2015 WL 3796456, at *3 (N.D. Ga. June 18, 2015).
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only contained “vague allegations that other property was damaged.”39 The
plaintiff in Seaberg asserted similarly vague allegations.40 In contrast, the
Plaintiff here has made specific allegations of damage to property other than the
Shingles. The Plaintiff has alleged that leaks resulting from defects in the
Shingles have damaged roofing underlayment, decking, framing components,
and drywall in members’ homes. These allegations, which are much more
specific than the vague allegations in Seaberg and Buske, are sufficient to avoid
dismissal.
C. Statute of Limitations
Finally, the Defendant argues that the Plaintiff’s tort claims are time
barred.41 O.C.G.A. § 9-3-30 provides that “[a]ll actions for trespass upon or
damage to realty shall be brought within four years after the right of action
accrues.”42 Thus, under this provision, “[t]ort actions for damage to realty must

39

Buske, 2017 WL 1062371, at *2; see also [Doc. 1] under No. 1:16-

CV-709-TWT, ¶ 85 (“The Shingles blister, prematurely lose their protective
mineral granules, and deteriorate prematurely, and otherwise do not perform
as warranted by Owens Corning, leading to and/or causing leaks and related
damage to the underlying roof elements, structures or interiors of Plaintiffs and
Class members’ residences and other buildings.”).

Seaberg, 2015 WL 3796456, at *3; see also [Doc. 1] under No.
1:14-CV-3179-TWT, ¶ 120 (“On information and belief, the defect has caused
damage to Plaintiff’s and Class members’ existing homes, residences, buildings,
and other structures, in addition to damage to the Shingles themselves, by
allowing moisture to enter through the Shingles.”).
40

41

Def.’s Partial Mot. to Dismiss, at 6.

42

O.C.G.A. § 9-3-30.

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be brought within four years of substantial completion of the property.”43 This
rule applies even if the Plaintiff (or its members) did not know of any alleged
defects until after the substantial completion of the condominium complex.44
Likewise, the statute of limitation for fraud claims in Georgia is four years.45
Since the Plaintiff has only alleged damage to real property in its tort claims,
its action must have been filed within four years of substantial completion of the
complex.46 The Amended Complaint alleges that the Shingles were installed at
Mosaic between 2005 and 2007.47 Therefore, under this formulation, the statute
of limitations ran between 2009 and 2011, years before the Plaintiff filed this
action in 2017. The Plaintiff does not dispute this. Instead, it argues that
equitable estoppel and equitable tolling apply.
First, the Plaintiff does not provide any analysis supporting its argument
that the Defendant is equitably estopped from asserting a statute of limitations
argument. Instead, it focuses on its equitable tolling argument. However, even
if it did provide a more detailed argument, it would be unavailing. Under the

Dryvit Sys., Inc. v. Stein, 256 Ga. App 327, 329 (2002); see also
Mitchell v. Contractors Specialty Supply, Inc., 247 Ga. App. 628, 629 (2001) (“It
43

is well settled that a cause of action for damage to a building accrues at the time
of construction.”).
44

Id.

45

Hamburger v. PFM Capital Mgmt., Inc., 286 Ga. App. 382, 387

(2007) (citing O.C.G.A. § 9-3-31).
46

Mitchell, 247 Ga. App. at 629.

47

Am. Compl. ¶ 14.

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doctrine of equitable estoppel, “the defendant is estopped from asserting the
statute of limitations because the defendant's conduct induced the plaintiff to
forebear from bringing suit within the statute of limitations period.”48 “This
doctrine arises from the equitable principle that a wrongdoer cannot take
advantage of his wrongdoing.”49 “To prove equitable estoppel and avoid the
statute of limitations, the plaintiff must show that he was misled by the
defendants or their agents so that he delayed bringing this suit because of 1) an
affirmative statement that the statutory period was longer than it actually was,
or 2) promises to make a better settlement if the plaintiff did not bring suit, or
3) comparable representations or conduct.”50 The Plaintiff does not allege that
the Defendant made any statements that would fit within any of those
categories. Therefore, the Defendant is not estopped from asserting a statute of
limitations defense.
The Plaintiff then argues that the statute of limitations for its tort claims
should be equitably tolled. Georgia’s tolling statute provides: “If the defendant
or those under whom he claims are guilty of a fraud by which the plaintiff has
been debarred or deterred from bringing an action, the period of limitation shall
run only from the time of the plaintiff's discovery of the fraud.”51 In order to toll
48

Barton v. Peterson, 733 F. Supp. 1482, 1490 (N.D. Ga. 1990).

49

Id.

50

Id. at 1491.

51

O.C.G.A. § 9-3-96.

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the statute of limitations, “a plaintiff must prove that (1) the defendant
committed actual fraud involving moral turpitude, (2) the fraud concealed the
cause of action from the plaintiff, and (3) the plaintiff exercised reasonable
diligence to discover his cause of action.”52 To meet this standard, the Plaintiff
must demonstrate more than mere concealment – it “must show that the
defendants concealed the defects through ‘[s]ome trick or artifice . . . to prevent
inquiry or elude investigation or to mislead and hinder the party who has the
cause of action from obtaining the information, and the acts relied on must be
of an affirmative character and fraudulent.’”53 Silence or mere failure to disclose
does not meet the standard to toll the statute of limitations unless the parties
are in a confidential relationship.54 O.C.G.A. § 9-3-96, as an exception to the
statute of limitations, “should be strictly construed.”55
Furthermore, because tolling the statute of limitations requires proof of
fraud, the allegations must be pleaded with particularity.56 The Eleventh Circuit
has held that “under Rule 9(b), the Plaintiffs must allege (1) the precise
statements, documents, or misrepresentations made; (2) the time, place, and
person responsible for the statement; (3) the content and manner in which these
52

Smith v. Suntrust Bank, 325 Ga. App. 531, 538 (2014).

53

Gropper v. STO Corp., 250 Ga. App. 820, 824 (2001).

54

Smith, 325 Ga. App. at 538.

55

Curlee v. Mock Enters., Inc., 173 Ga. App. 594, 597 (1985).

56

FED. R. CIV. P. 9(b).

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statements misled the Plaintiffs; and (4) what the defendants gained by the
alleged fraud.”57 The Plaintiff has failed to meet this standard. The Plaintiff has
not pleaded the precise statements that misled it, how and when those
statements were made, and how those statements misled it. Instead, the
Plaintiff has only pleaded the general types of misrepresentations or statements
that the Defendant made concerning the Shingles.58 To satisfy its burden for
equitable tolling, the Plaintiff would need to plead the alleged fraud with a
much higher level of specificity. The Plaintiff has also failed to plead that it used
reasonable diligence to discover any cause of action. Overall, the Plaintiff’s
allegations fall far short of pleading the alleged fraud with the required
particularity, and thus are insufficient to toll the statute of limitations. This is

57

Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364,

1380–81 (11th Cir.1997).

See, e.g., Am. Compl. ¶ 65 (“Atlas represented to Plaintiff, its
members, and their builder/contractor, in documents generally available to the
public, that its Shingles would be free from defects and have a useful life of
25-30 years . . . .”); id. ¶ 104 (“Instead, completely contrary to its internal
documents, Atlas has misrepresented to customers that the blistering and
cracking are ‘not a performance defect but are cosmetic only’ and ‘the overlays
only function is to create the look of dimension.’”); id. ¶ 194 (noting that the
Defendant had “extensive knowledge of the defective nature of the Shingles and
fail[ed] to disclose to Plaintiff,” represented “that the Shingles were suitable
exterior building products, when they were not,” represented “that the Shingles
complied with building code and industry standards, when they did not,” and
“represented that the Shingles would last at least 25-30 years, when they would
not.”); id. ¶¶ 216-217 (alleging that the Defendant made misrepresentations
concerning the Shingles quality, longevity, and compliance with building and
industry standards). It is also questionable whether these alleged
misrepresentations rise to the level of “actual fraud involving moral turpitude,”
which is required to toll the limitations period.
58

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especially true given the fact that this exception to statute of limitations is
narrowly construed.
Additionally, as to the Plaintiff’s allegations that the Defendant concealed
these defects, it has failed to allege that the Defendant’s actions amounted to
anything more than mere silence. To toll the statute of limitations because of
fraud, the Plaintiff must show that the Defendant concealed the defects with
some type of trick or artifice that prevented the Plaintiff from investigating the
cause of action. The Plaintiff’s allegations do not establish that the Defendant
employed an affirmative act or trick to hide the defects.59 Instead, it only alleges
that the Defendant hid its knowledge of the defects in the Shingles from
consumers. These allegations merely show silence or omission on the
Defendant’s part, which is not enough to toll the statute of limitations under
Georgia law. Accordingly, the Plaintiff’s claims for fraudulent concealment
(Count III), strict liability (Count IV), and negligence and negligent design
(Count V) should be dismissed as barred by the statute of limitations.

59

Am. Compl. ¶ 140 (“Atlas had a duty to disclose to Plaintiff, its
members, and their builder/contractor that its Shingles were and are defective
. . . .”); id. ¶ 143 (“Despite being aware of the defects as stated herein, Atlas
concealed from consumers, homeowners, contractors and roofers that its
Shingles failed to comply with ASTM 3462 and IRC, would prematurely fail, and
cannot be expected to fulfill their service life.”); id. ¶ 148 (“In addition,
Defendant is estopped from relying on any statutes of limitation or repose by
virtue of its acts of fraudulent concealment, which include Defendant’s
intentional concealment from Plaintiff, its members, and the general public that
their Shingles were defective, while continuing to market and sell the Shingles
as having premium aesthetic qualities, as well as being a durable and suitable
product to unsuspecting consumers.”).
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IV. Conclusion
For the reasons stated above, the Defendant’s Partial Motion to Dismiss
[Doc. 13] is GRANTED in part and DENIED in part.
SO ORDERED, this 19 day of July, 2018.

/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge

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