Almer v. Peanut Corporation of America

Filing 393

Almer v. Peanut Corporation of America

APPENDIX B
STATES THAT REQUIRE VERTICAL PRIVITY FOR IMPLIED WARRANTY OF MERCHANTABILITY CLAIMS
ALABAMA It is well-settled in Alabama that there is no right of action on an implied warranty theory against a manufacturer for property damage or for direct economic loss without privity of contract. Rampey v. Novartis Consumer Health, Inc. 867 So. 2d 1079, 1087 (Ala. 2003); Johnson v. Anderson Ford, Inc., 686 So. 2d 224, 227-28 (Ala. 1996); Wellcraft Marine v. Zarzour, 577 So. 2d 414, 419 (Ala. 1990). Vertical privity is required in warranty actions in Arizona involving alleged economic loss. Flory v. Silvercrest Indus. Inc., 633 P.2d 383, 386-88 (Ariz. 1981) (explaining that plaintiff is unable to recover for damages for economic loss against manufacturer for breach of implied and express warranties in the absence of privity). "Vertical privity is a prerequisite in California for recovery on a theory of breach of the implied warranties of fitness and merchantability." U.S. Roofing, Inc. v. Credit Alliance Corp., 228 Cal. App. 3d 1431, 1441 (Cal. Ct. App. 1991); see also Burr v. Sherwin Williams Co., 268 P.2d 1041, 1048-49 (Cal. 1954) (concluding the trial court erred in instructing the jury that vertical privity was not required in an action for breach of implied warranty). Privity is required to state a claim for breach of implied warranty of merchantability in Florida. See Airport Rent-A-Car, Inc. v. Prevost Car, Inc., 788 F. Supp. 1203, 1206 (S.D. Fla. 1992) ("[p]rivity of contract between plaintiff and defendant is an essential element of the breach of implied warranty cause of action" in a claim for economic loss); Am. Universal Ins. Group v. Gen. Motors Corp., 578 So.2d 451, 454-55 (Fla. Dist. Ct. App. 1991); see also T.W.M. v. Am. Med. Sys. Inc., 886 F. Supp. 842, 844 (N.D. Fla. 1995) ("to recover for the breach of a warranty, either express or implied, the plaintiff must be in privity of contract with the defendant"). Under Georgia law, "a warranty that the goods are merchantable is implied in a contract for their sale . . . ." Ga. Code. Ann. § 11-2-314. Because this implied warranty arises out of a contract for the sale of the goods, "it can only run to a buyer who is in privity of contract with the seller." Thomaston v. Fort Wayne Pools, Inc., 352 S.E.2d 794, 796 (Ga. Ct. App. 1987) (citation omitted); see also Morgan v. Mar-Bel, Inc., 614 F. Supp. 438, 441 (N.D. Ga. 1985) (finding that "Georgia law requires a showing of privity between the injured person and the seller of a product before a claim based upon an implied warranty may be brought") (citation omitted). Under Illinois law, if a purchaser seeks only economic damages, that purchaser can bring a claim for breach of an implied warranty only against the immediate seller of the goods. See Mekertichian v. Mercedez-Benz U.S.A., L.L.C., 807 N.E.2d 1165, 1169 (Ill. App. Ct. 2004) (recognizing that Illinois requires privity of contract in breach of implied warranty claims); Tokar v. Crestwood Imports, Inc., 532 N.E.2d 382, 385 (Ill. App. Ct. 1998) (affirming dismissal of implied warranty claim because there was no vertical privity

ARIZONA

CALIFORNIA

FLORIDA

GEORGIA

ILLINOIS
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Doc. 393 Att. 1

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APPENDIX B
STATES THAT REQUIRE VERTICAL PRIVITY FOR IMPLIED WARRANTY OF MERCHANTABILITY CLAIMS
between automobile purchaser and manufacturer). KANSAS Under Kansas law, when a plaintiff brings an action for economic loss for a breach of the warranties of fitness or merchantability, privity is required. Koss Constr. v. Caterpillar, Inc., 960 P.2d 255, 259 (Kan. Ct. App. 1998); see also Professional Lens Plan, Inc. v. Polaris Leasing Corp., 675 P.2d 887, 898-99 (Kan. 1984) (explaining that under Kansas law, "implied warranties of fitness and merchantability are not extended to a remote seller or manufacturer of an allegedly defective product . . . for only economic loss suffered by a buyer who is not in contractual privity with the remote seller or manufacturer"). Kentucky courts require privity of contract in products liability actions based on a breach of warranty. Williams v. Fulmer, 695 S.W.2d 411, 413 (Ky. 1985); see also Munn v. Pfizer Hosp. Prods. Group, Inc., 750 F. Supp. 244, 248 (W.D. Ky. 1990) (recognizing that Kentucky does not extend breach of warranty standing beyond the buyer/seller setting). New York courts requires vertical privity for implied warranty claims seeking economic damages. See, e.g., Am. Dredging Co. v. Plaza Petroleum, Inc., 799 F. Supp. 1335, 1341 (E.D.N.Y. 1992), vacated in part on other grounds, 845 F. Supp. 91 (E.D.N.Y. 1993); Dragon v. Monahan Ford Corp. of Flushing, 538 N.Y.S.2d 142, 143 (N.Y. Civ. Ct. 1989) (dismissing a consumer's implied warranty claim against an automobile manufacturer on the grounds that the "implied warranties of merchantability and fitness for use. . .do not extend to a remote purchase, not in privity with the manufacturer"). Oregon courts recognize "the rule that privity of contract is essential before a purchaser can recover economic loss from a manufacturer for breach of implied warranty." Davis v. Homasote Co., 574 P.2d 1116, 1117 (Or. 1978); see also Colvin v. FMC Corp., 604 P.2d 157, 160 (Or. Ct. App. 1979) (confirming that Oregon law requires privity where the seller allegedly breaches a warranty and the damages sought are for personal injuries). Under Tennessee law, privity is required where only economic damages are sought. Americoach Tours, Inc. v. Detroit Diesel Corp., No. 04-2016, 2005 U.S. Dist. LEXIS 40182, at *24 (W.D. Tenn. Sept. 23, 2005) (explaining that because the plaintiff failed to establish non-economic damages resulting from alleged breach of implied warranty, "the requirement of privity is not excused regardless of whether the product was unreasonably dangerous"). Privity is a requirement under Wisconsin law for a breach of warranty claim. Northridge Co. v. W.R. Grace & Co., 471 N.W.2d 179, 187 n.15 (Wis. 1991); see also Twin Disc, Inc. v. Big Bud Tractor, Inc., 582 F. Supp. 208, 215 (E.D. Wis. 1984) (recognizing that Wisconsin law requires privity of contract for express or implied warranty claims).

KENTUCKY

NEW YORK

OREGON

TENNESSEE

WISCONSIN

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