Johnsen v. Honeywell International Inc.

Filing 40

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendant Honeywell International Inc. 's Motion to Dismiss Plaintiffs Class Action Complaint [ECF No.24] is GRANTED as to Counts 2 (Breach of Warranty for a Particular Purpose), 4, 5, and 6 of Plai ntiffs Amended Complaint and DENIED as to Counts 1, 2 (Breach oflmplied Warranty of Merchantability), 3, and 8. IT IS FURTHER ORDERED that Defendant's Motion to Dismiss Count 7, construed.as a Motion for More Definite Statement is GRANTED. IT IS FINALLY ORDERED that Plaintiff shall have twenty (20) days from the date of this Memorandum and Order to amend his Complaint in accordance with the foregoing. re: 24 MOTION to Dismiss Case filed by Defendant Honeywell International Inc. ( Response to Court due by 3/4/2015.) Signed by District Judge Ronnie L. White on 2/12/15. (JWJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

SCOTT JOHNSEN, individually and on behalf
of others similarly situated,
·
Plaintiffs,
V.

HONEYWELL INTERNATIONAL INC.,
a Delaware corporation,
Defendant.

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No. 4:14CV594 RLW

MEMORANDUM AND ORDER

This matter is before the Court on Defendant Honeywell International Inc.' s Motion to
Dismiss Plaintiffs Class Action Complaint (ECF No. 24). The motion is fully briefed and ready
for disposition. Upon consideration of the motion and related memoranda, the Court will grant
Defendant' s motion to dismiss, in part, and deny the motion, in part.

I. Background
Plaintiff Scott Johnsen brings this action on behalf of himself and the putative class of
individuals and entities who own or have owned Honeywell TrueSTEAM humidifiers, model
numbers HM506, HM509, and/or HM512. (Am. Compl. ii 1, ECF No. 21) These humidifiers
are installed in the home and cost anywhere from $792 to over $1 ,000, independent of
installation costs. (Id. at ilil 1, 15) Plaintiff alleges that the humidifiers had been available for
purchase since 2008 and that approximately 206,410 TrueSTEAM humidifiers were sold
nationwide between 2008 and 2013. (Id. at ilil 16-17)
In his Complaint, Plaintiff Johnsen contends that he installed two Honeywell
TrueSTEAM humidifiers, Model number HM506, in his home on December 2, 2008. (Id. at ii

61) He claims that both humidifiers failed and required replacement several times within the 5
year warranty timeframe. (Id. at ~~ 62-69) The warranty provided:
Honeywell warrants this product to be free from defects in the
workmanship or materials, under normal use and service, for a
period of five (5) years from the date of purchase by the consumer.
If at any time during the warranty period the product is determined
to be defective or malfunctions, Honeywell shall repair or replace
it (at Honeywell' s option).

(Id.

at~

30) Additionally, the warranty states:
HONEYWELL SHALL NOT BE LIABLE FOR ANY LOSS
OR DAMAGE OF ANY KIND, INCLUDING ANY INCIDENTAL
OR CONSEQUENTIAL DAMAGES RESULTING, DIRECTLY
OR INDIRECTLY, FROM ANY BREACH OF ANY WARRANTY,
EXPRESS OR IMPLIED, OR ANY OTHER FAILURE OF THIS
PRODUCT. Some states do not allow the exclusion of limitation
of incidental or consequ~ntial damages, so this limitation may not
apply to you.

(Id.

at~

38)

According to Johnsen, despite Honeywell' s representation that the TrueSTEAM
humidifiers are of superior quality, the humidifiers "are plagued by design flaws ." (Id.

at ~~

18-

22) Specifically, the inside of the units is disposed to developing mineral deposits after a short
period of time. (Id.

at~

23) This "scaling" can cause overheating, blockages, and component

cracks and can also prevent the units from properly draining, causing scalding hot water to
overflow. (Id. at 24) Plaintiff further alleges that the humidifier design results in steam being
blown into the HV AC duct system, resulting in condensation which could lead to mold and
fungus growth, as well as damage to surrounding appliances and property. (Id.

at~~

25, 28)

Plaintiff contends that Defendant's warranty is futile in that it does not provide the
services set forth in the warranty and maintains an overly burdensome warranty claims process.

(Id.

at~~

33-36) Further, he alleges that Defendant routinely denies the remedy ofrepair or

2

replacement and declines to reimburse customers for damage caused by the defective unit. (Id.
at~

37) Additionally, Plaintiff Johnsen maintains that the replacement remedy is futile because

Defendant installs the same defective Honeywell humidifiers. (Id.

at~

40)

Specific to Plaintiff Johnsen, he claims that despite repeated failures of his Honeywell
TrueSTEAM humidifiers, Defendant refused to refund Plaintiffs money or pay installation
charges for the replacement humidifiers. (Id. at ~ 68) He further asserts that the internet is
replete with postings by customers, describing their bad experiences with the humidifiers. (Id. at
~

73) In the Amended Class Action Complaint, Plaintiff alleges on behalf of all Classes a claim

for Breach of Express Warranty (Count 1), Negligence (Count 5), Negligent Misrepresentation
(Count 6), Unjust Enrichment (Count 8), and for Injunctive and Declaratory Relief (Count 9).
On behalf of the Missouri Class, Plaintiff claims Breach of Implied Warranties of
Merchantability and Fitness for a Particular Purpose (Count 2), Failure of Essential Purpose
(Count 3), Strict Products Liability (Count 4) and Violation of the Missouri Merchandising
Practices Act (Count 7). Plaintiff requests actual, compensatory, exemplary, and statutory
damages; restitution; injunctive and declaratory relief; punitive damages; and attorney's fees and
costs.
On May 19, 2014, Defendant filed a Motion to Dismiss Plaintiffs Class Action
Complaint, arguing that Defendant Honeywell fulfilled its· obligations under the warranty and
that the warranty expressly disclaims recovery of incidental or consequential damages.
Defendant also maintains that the Court should dismiss Plaintiffs negligence and strict products
liability claims because Plaintiff has failed to identify a defect in his humidifier. Finally,
Honeywell asserts that Plaintiff has failed to allege any misrepresentation or deception sufficient
to state a claim for either negligent misrepresentation or violation of the Missouri Merchandising

3

Practices Act. Plaintiff, on the other hand, argues that he has stated sufficient facts to set forth a
plausible claim under Fed. R. Civ. P. 12(b)(6) such that the Court should deny Defendant' s
motion.

II. Standard for Ruling on a Motion to Dismiss
A complaint must be dismissed under Federal Rule 12(b)(6) for failure to state a claim
upon which relief can be granted if the complaint fails to plead "enough facts to state a claim to
relief that is plausible on its face. " Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)
(abrogating the "no set of facts" standard set forth in Conley v. Gibson, 355 U.S. 41 , 45-46
(1957)). While the Court cautioned that the holding does not require a heightened fact pleading
of specifics, "a plaintiff s obligation to provide the ' grounds ' of his ' entitle[ment] to relief
requires more than labels and conclusions, and a formulaic recitation of the elements of a cause
of action will not do." Id. at 555. In other words, "[f]actual allegations must be enough to raise
a right to relief above the speculative level . . . ." Id. This standard simply calls for enough facts
to raise a reasonable expectati9n that discovery will reveal evidence of the claim. Id. at 556.
Courts must liberally construe the complaint in the light most favorable to the plaintiff
and accept the factual allegations as true. See Id. at 555 ; see also Schaaf v. Residential Funding

Corp. , 517 F.3d 544, 549 (8th Cir. 2008) (stating that in a motion to dismiss, courts accept as
true all factual allegations in the complaint); Eckert v. Titan Tire Corp., 514 F .3d 801 , 806 (8th
Cir. 2008) (explaining that courts should liberally construe the complaint in the light most
'

favorable to the plaintiff). Further a court should not dismiss the complaint simply because the
court is doubtful that the plaintiff will be able to prove all of the necessary factual allegations.

Twombly, 550 U.S. at 556. However, " [w]here the allegations show on the face of the complaint
there is some insuperable bar to relief, dismissal under Rule 12(b)(6) is appropriate." Benton v.

4

Merrill Lynch & Co., 524 F.3d 866, 870 (8th Cir. 2008) (citation omitted). Courts '"are not
bound to accept as true a legal conclusion couched as a factual allegation. "' Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). When considering a motion to
dismiss, a court can "begin by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth." Id. at 679. Legal conclusions must be
supported by factual allegations to survive a motion to dismiss. Id.

III. Discussion
A. Breach of Express Warranty
Defendant Honeywell first argues that this Court must dismiss Plaintiffs claim that
Defendant breached the express warranty. Under Missouri law:
The elements for a breach of express warranty claim are: (1) the defendant sold
goods to the plaintiff; (2) the seller made a statement of fact about the kind or
quality of those goods: (3) the statement was a fact that was a material factor
inducing the buyer to purchase the goods; (4) the goods did not conform to that
statement of fact; (5) the nonconformity injured the buyer; and (6) the buyer
notified the seller of the nonconformity in a timely manner.

Renaissance Leasing, LLC v. Vermeer Mfg. Co. , 322 S.W.3d 112, 122 (Mo. 2010) (citation
omitted). Defendant claims that Plaintiffs complaint fails to state a claim for breach of express
warranty because he does not allege that Honeywell breached its agreement of "repair or
replace" the humidifier. Plaintiff, on the other hand, asserts that he has properly stated a claim
for breach of express warranty. The Court finds that dismissal of Plaintiffs breach of express
warranty claim is not merited.
Plaintiff referenq:~s the warranty provided by Defendant Honeywell to argue that
Defendant breached an express warranty for future performance and a warranty to repair or
replace the unit. The Court may rely on the warranty language in addressing the motion to
dismiss. "Documents that are necessarily embraced by the pleadings are not ' matters outside the
5

pleadings' for purposes of Rule 12(d)." Reitz v. Nationstar Mortg. , LLC, 954 F. Supp. 2d 870,
876 (E.D. Mo. 2013). "A court need not convert a Rule 12(b)(6) motion to dismiss into on[e] for
summary judgment under Rule 12(d) ifthe matters presented are incorporated by reference, are
integral to the claim, or are exhibits whose authenticity is unquestioned." Id. (citations omitted).
In this case, the warranty is integral to Plaintiffs claims and is therefore necessarily embraced by
the pleadings. See Gorog v. Best Buy Co., Inc., 760 F.3d 787, 791 (8th Cir. 2014) (holding that
the Agreement upon which plaintiffs breach of contract claim rested was embraced by the
amended complaint, and the lower court's reliance on the Agreement did not convert the motion
to dismiss to a motion for summary judgment).
At the outset, the undersigned notes that "[n]amed plaintiffs who represent a class 'must
allege and show that they personally have been injured, not that injury has been suffered by
other, unidentified members of the class to which they belong and which they purport to
represent."' White v. Volkswagen Grp. ofAm., No. , 2013 WL 685298, at *2 (W.D. Ark. Feb.
25, 2013) (quoting Warth v. Seldin, 422 U.S. 490, 502 (1975)). Here, Plaintiff alleges that he
installed two Honeywell humidifiers in his home on December 2, 2008. He claims that he
purchased the units based on representations by Honeywell regarding the quality and on the
advertised warranty. (Am. Compl. ii 61, ECF No. 21) Plaintiff contends that one humidifier
failed in February 2009, requiring replacement on March 12, 2009 and again on January 15,
2010. (Id. at iiii 63-64) The other unit required replacement in March 2010 and again in March
2011. (Id. at iiii 65-66) When that unit failed a third time in December 2012, Plaintiff requested
a refund, but Defendant Honeywell sent a replacement humidifier and would not pay for
installation. (Id. at iiii 67-68) According to Plaintiff, the newly replaced unit failed in December
2013 . (Id. at ii 69) Although Plaintiff contacted Honeywell and requested a replacement part,

6

Defendant failed to provide further service. (Id. at ii 70) Plaintiff alleges that the express
warranty guaranteed that the humidifiers were free of defects for a period of five years from the
date of purchase and that the warranty was a material factor that specifically induced Plaintiff to
purchase Honeywell humidifiers. (Id. at iiii 89-90) Plaintiff avers that Defendant breached its
express warranty because the humidifiers were not free from defects, thus preventing the units
from performing as warranted. (Id. at ii 91) Further, Plaintiff claims that the warranties fail of
their essential purpose because they do not function properly for the applicable warranty period,
and repair or replacement cannot cure these defects. (Id. at ii 92)
Defendant Honeywell argues that Plaintiff fails to state a claim for breach of express
warranty because he fails to properly allege that the goods did not conform to the language
contained in the warranty and that he fails to allege that Defendant refused to repair or replace
the humidifiers. However, Plaintiffs Amended Complaint does allege that Defendant
Honeywell failed to replace or repair Plaintiff Johnsen' s newly replaced unit when it failed in
December of2013. (Am. Compl. ii 69) While Defendant questions whether this date was within
the 5 year warranty period, the Court finds Plaintiff's allegation is sufficient to raise a reasonable
expectation that discovery will reveal evidence of the claim. Twombly, 550 U.S . at 556.
Further, Plaintiff alleges that the humidifiers were defective and did not conform to the
guarantee that they would be free of defects for the 5 year warranty period. In a nearly identical
case filed against Defendant Honeywell, the U.S. District Court for the District of Massachusetts
in Leach v. Honeywell Int 'l Inc. interpreted the Limited Warranty as stating that "the Humidifier
would be free from defect for five years and that Honeywell will repair or replace the Humidifier
if defective within the five years." (Pl.'s Supp. Authority, Ex. A p. 7, Leach v. Honeywell Int 'l
Inc., Civ. Action No. 1:14-12245-LTS, ECF No. 39-1) The Leach court found the plaintiff

7

stated a claim for breach of express warranty under alternate theories of failure to abide by the
repair and replacement provision, as well as the alleged warranty language. (Id. at p. 8)
This Court similarly finds that Plaintiff has stated a claim for breach of express warranty
sufficient to withstand a motion to dismiss. In addition to claiming that Defendant Honeywell
did not abide by the repair/replace provision in the warranty, Plaintiff also alleges that, contrary
to the express warranty, the product was not free from defects under normal use for a period of
five years. While Defendant argues that the warranty is not as narrow as Plaintiff contends, the
Court finds the allegation sufficiently nudges Plaintiff ey breach of express warranty claim
"across the line from conceivable to plausible." Twombly, 550 U.S. at 570; see Humphrey v.

Electrolux Home Products Inc., No. 4:12-CV-157-DPM, 2012 WL 3257664, at *2 (E.D. Ark.
Aug. 9, 2012) (finding facts sufficient to survive a motion to dismiss where plaintiff plausibly
pleaded that the manufacturer guaranteed the item would be fee of material defects; the warranty
was part of the bargain; and the item had a material defect).
As for future performance, Plaintiff claims that the 5 year warranty period began each
time the units failed and required replacement with a new unit. "Under Missouri law, a warranty
that a product is free from defect in quality or workmanship is a warranty for future performance
of the product." Ouellette Mach. Sys., Inc. v. Clinton Lindberg Cadillac Co. , 60 S.W.3d 618,
621 (Mo. Ct. App. 2001). At this point in the proceedings, the Court finds that Plaintiff has
sufficiently stated a plausible claim for breach of express warranty, including warranty for future
performance, such that Honeywell's Motion to Dismiss Plaintiffs claim for Breach of Express
Warranty will be denied.

8

B. Implied Warranties of Merchantability and Fitness for a Particular Purpose
Defendant also argues that the express warranty bars Plaintiffs claims for breach of
implied warranty of merchantability and breach of implied warranty of fitness for a particular
purpose. To recover under the theory of implied warranties of merchantability under Missouri
law, "a plaintiff must prove (1) that a merchant sold goods, (2) which were not ' merchantable' at
the time of the sale, (3) injury and damages to the plaintiff or his property (4) which were caused
proximately or in fact by the defective nature of the goods, and (5) notice to the seller of the
injury." Ragland Mills, Inc. v. General Motors, Corp., 763 S.W.2d 357, 360 (Mo. Ct. App.
1989). Implied warranties can be excluded but, under Missouri statute, must mention
merchantability. Mo. Rev. Stat. § 400.2-316(2). The express warranty in this case states:
THIS WARRANTY IS THE ONLY EXPRESS WARRANTY HONEYWELL
MAKES ON THIS PRODUCT, THE DURATION OF ANY IMPLIED
WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE, IS HEREBY LIMITED TO
THE FIVE-YEAR DURATION OF THIS WAR.RANTY.
(De£'s Mot. to Dismiss, Ex. A, ECF No. 25-1)
Defendant argues that Plaintiffs allegation that the humidifier "failed" is too vague to
state a claim for relief under a breach of implied warranty of theory. Specifically, Defendant
asserts that the allegations that the humidifier is of a lower quality than expected are insufficient
to withstand the motion to dismiss.
An implied warranty of merchantability "warrants that goods must be at least ' fit for the

ordinary purposes for which such goods are used. "' Hope v. Nissan North Am., Inc., 353 S.W.3d
68, 89-90 (Mo. Ct. App. 2011) (quoting Mo. Rev. Stat. § 400.2-314(2)(c)). This warranty "does
not mean a promise by the merchant that the goods are exactly as the buyer expected, but rather
that the goods satisfa a minimum level of quality." Id. (citation omitted). Viewing the facts in

9

favor of the Plaintiff, he purchased humidifiers that continued to exhibit the same alleged
defects, requiring several replacements, and ultimately resulting in Defendant's refusal to replace
or repair the most recent unit. Unlike the putative class in Hope, the individual plaintiff here has
alleged an actual manifestation of the defect of scaling and mineral buildup in his original and
replaced units. Id. at 90. Further, Defendant's own express warranty acknowledges that implied
warranties exist for the 5 year duration of the warranty. Therefore, based on the allegations in
the Amended Complaint and the Missouri case law, the Court finds that Plaintiff has sufficiently
stated a plausible claim to survive Defendant's motion to dismiss. See Leach v. Honeywell Int '!
Inc., Civ. Action No. 1:14-12245-LTS, at p. 11, ECF No. 39-1 (finding plaintiff"alleged
sufficient facts supporting a claim that the Humidifier did not meet reasonable consumer
expectations because it is plausible a reasonable consumer would expect the Humidifier not to
leak, not to scale, and to function as promised.").
With regard to Plaintiffs claim of breach of warranty for a particular purpose, however,
the Court finds that Plaintiff fails to state a claim. Under Missouri law, a claim for breach of the
implied warranty of fitness for a particular purpose exists "[w]here the seller at the time of
contracting has reason to know any particular purpose for which the goods are required and that
the buyer is relying on the seller's skill or judgment to select or furnish suitable goods there is . .
. an implied warranty that the goods shall°be fit for such purpose." Mo. Rev. Stat. § 400.2-315.
"Comment 2 to section 400 .2-315 explains that a 'particular purpose differs from the ordinary
purpose for which the goods are used in that it envisages a specific use by the buyer which is
peculiar to the nature of his business.'" Howard Constr. Co. v. Bentley Trucking, Inc., 186
S.W.3d 837, 842 (Mo. Ct. App. 2006) (quoting Mo. Rev. Stat. § 400.2-315) (inter:nal quotations
omitted). Thus, a plaintiff must demonstrate that he intended to use the product for something

10

other than its ordinary purpose. Id. at 843; see also Doe v. Miles, Inc., No. ED75100, 2000 WL
667383 ,' at* 7 (Mo. Ct. App. May 23 , 2000) ("a breach of the implied warranty of fitness for a
particular purpose may not be established without substantial evidence that the article or product
was bought for a purpose that was special or 'particular' to the buyer and distinct from the
article' s or product' s ordinary purpose.").
Here, Plaintiff Johnsen fails to allege that he intended to use the humidifiers for a
particular purpose different from the humidifiers ' ordinary purpose. Indeed, in his response to
the motion to dismiss, Plaintiff does not address Defendant' s argument that the complaint fails to
allege facts demonstrating that Plaintiff purchased the humidifiers for any purpose other than to
humidify his home. Therefore, the Court will dismiss Plaintiff's claim for breach of implied
warranty of fitness for a particular purpose.

C. Failure of Essential Purpose
Plaintiff next claims that the limited remedies failed of their essential purpose pursuant to
Mo. Rev. Stat. § 400.2-719(2), which provides that " [w]here circumstances cause an exclusive or
limited remedy to fail of its essential purpose, remedy may be had as provided in this chapter."
Plaintiff maintains that the limitation on the duration of the warranties was unconscionable
because the humidifiers were defective at the time Plaintiff acquired them. Defendant argues
that the Court should dismiss this claim because Honeywell repaired or replaced the allegedly
defective units as provided in the warranty. The Court finds that Plaintiff has stated a plausible
claim such that dismissal is not warranted at this time.
Plaintiff claims that Defendant refused to replace or repair the new replacement unit
installed in December 2012. (Am. Compl.

iii! 67-70)

Plaintiff also contends that the limited

warranty fails of its essential purpose because Honeywell continued to replace the defective

11

humidifiers with other defective humidifiers. (Id.

at~~

40, 112) " [A] limited and exclusive

warranty to repair or replace ' fails of its purpose and is thus avoided under§ 400.2-719(2)
wherever the warranty fails to correct the defect within a reasonable period, .... "' R. W Murray
Co. v. Shatterproof Glass Corp., 758 F.2d 266, 272 (8th Cir. 1985) (quoting Givan v. Mack
Truck, Inc., 569 S.W.2d 243 , 247 (Mo. Ct. App. 1978)); see also Midwest Printing, Inc. v. AM
Int '!, Inc., 108 F.3d 168, 171-72 (8th Cir. 1997) ("If Mid-West had accepted AM' s offer to
replace the Eagle press, and the replacement press had the same deficiencies that Mid-West
complains of in the original press, this position [that the remedies in the sales agreement failed of
their essential purposes] would have some validity."). Thus, the Court will deny Defendant
Honeywell' s motion to dismiss Plaintiffs claim for failure of essential purpose.

D. Plaintiff's Tort Claims
With regard to Plaintiff's tort claims of strict products liability and negligence, Defendant
maintains that these claims are barred by the economic loss doctrine. The Court agrees. "It is
the law in Missouri ... that recovery in tort for purely economic damage is limited to those cases
where there is personal injury, damage to property, other than that sold, or destruction of the
property sold due to some violent occurrence." Wilbur Waggoner Equip. and Excavating Co. v.
Clark Equip. Co., 668 S.W.2d 601, 603 (Mo. Ct. App. 1984). The United States Supreme Court
has aptly stated, "[g]iven the availability of warranties, the courts should not ask tort law to
perform a job that contract law might perform better." Saratoga Fishing Co. v. JM Martinac &
Co., 520 U.S. 875, 880 (1997). While Plaintiff argues that the economic loss doctrine applies
solely to commercial contracting parties and not to consumers, Missouri courts have not
explicitly issued such a narrow holding. Indeed, the Missouri Supreme Court held that an
individual purchaser of a crane could not recover on a theory of strict liability where the only

12

damage was to the product sold. Sharp Bros. Contracting Co. v. American Hoist & Derrick Co.,
703 S.W.2d 901, 903 (Mo. 1986); see also Pollard v. Remington Arms Co., LLC, No. 13-0086CV-W-ODS, 2013 WL 3039797, at *3 (W.D. Mo. June 17, 2013) (holding that the economicloss doctrine barred plaintiff from recovering under the theories of strict liability and negligence
where plaintiff sought damages based on an alleged design defect in a rifle he purchased,
including the cost of repair or replacement). Here, the only damages Plaintiff alleges are his
humidifiers ' failures due to alleged defeCts and the costs he incurred as a result of those alleged
defects. Plaintiff alleges no personal injury or damages to any property other than the humidifier
units.
However, Plaintiff contends that his tort claims arise from common law and not from the
contract. This argument is of no avail where, as here, Plaintiff has not alleged personal injury or
damage to other property, and the only damage is to the product sold. Pollard, 2013 WL
3039797, at *2-3 ; see also OneBeacon Ins. Co. v. Deere & Co., 778 F. Supp. 2d 1005, 1007
(E.D. Mo. 2011 ) (noting that Missouri' s economic loss doctrine bars recovery under the theories
of strict liability or negligence where the only damage is to the product sold) (citation and
internal quotation omitted). In such cases, the available remedy "is limited to contract or
warranty claims." OneBeacon, 778 F. Supp. 2d at 1007. In fact, Plaintiffs negligence claim
relies upon Defendant' s alleged breach of warranty in selling a defective product. (Am. Compl.
~

125)
Further, Plaintiffs allegations of possible future darriages to the putative class are

insufficient to state a claim for strict liability or negligence. In Pollard, the plaintiff sought to
certify a class of individuals in Missouri that own(ed) the rifle at issue. However, in addressing
the motion to dismiss, the court looked only to the allegations of the named plaintiff, not the

13

putative class members. 2013 WL 3039797, at *2-3. Here, the damages Plaintiff alleges merely
stem from the failure of the humidifiers to properly function, requiring Plaintiff to expend money
to pay for the repair or installation of a new humidifier. (Am. Compl. iii! 63 -72, 120, 125) While
Plaintiff argues that the humidifiers are unreasonably dangerous and could pose a risk of future
damage to persons or other property, the Court notes that the cases Plaintiff relies upon are
inapposite, as they pertain solely to tort actions and do not involve breach of warranty or contract
claims brought by purchasers of a product. See, e.g. , Sappington v. Skyjack, Inc. , 512 F.3d 440
(8th Cir. 2008) (strict liability suit brought by survivors of a constructio~ worker who was killed
when a scissors lift tipped over); Adams v. Fuqua Indus. , Inc., 820 F.2d 271 (8 1h Cir. 1987)
(products liability action brought against lawn mower manufacturer for injuries sustained when
riding mower ran over plaintiffs foot); Sch. Dist. of City of Independence, Mo. , No. 30 v. US.
Gypsum Co., 750 S.W.2d 442 (Mo. Ct. App. 1988) (strict products liability claim to recover from
injury to property arising out of the use of an asbestos-containing material). Thus, the Court
finds that Plaintiff is unable to state a claim for strict liability or negligence, and dismissal of
those claims is warranted.
With regard to Plaintiffs negligent misrepresentation claim, the Court finds that this
claim is also barred by the economic-loss doctrine. Although the cases applying the economicloss doctrine to negligent misrepresentation claims pertain to commercial transactions, the
undersigned is satisfied that Missouri courts and the Eighth Circuit Court of Appeals would
apply the doctrine to consumer transactions. In Dannix Painting, LLC v. Sherwin-Williams Co.,
732 F.3d 902 (2013), the plaintiff, a commercial painting contractor, asserted a claim for
negligent misrepresentation based upon the defendant's recommendation of paint products, not
the defect in the product, thus attempting to avoid the parties' agreed allocation of risk. Id. at

14

906-07. The Eighth Circuit acknowledged that "Missouri state courts have not specifically
addressed whether a commercial buyer may recover for disappointed commercial expectations
based on a theory of negligent misrepresentation." Id. at 907. However, based upon Missouri
courts' persistent application of the economic loss doctrine, the Dannix court concluded that the
reasoning applied in tort cases applied to a negligent misrepresentation claim. Id. at 907-08.
The court noted that Dannix sought damages for losses sustained when the recommended
product proved unsuitable and found that that type of tort claim was precisely what the economic
loss doctrine prohibited. Id. at 908.
Recently, the Eighth Circuit reiterated the Dannix holding, noting that "the Dannix court
predicted that the Supreme Court of Missouri, if confronted with the issue, would hold that the
economic loss doctrine bars negligent misrepresentation claims." Bruce Martin Const. , Inc. v.
CTB, Inc., 735 F.3d 750, 752 (8th Cir. 2013). The Bruce Martin court found that ifthe plaintiff
wanted to recover for the defective silo sweeps, it must recover under the warranties set forth in
the contract. Id. Subsequent cases have followed this reasoning. See Graham Const. Servs., Inc.
v. Hammer & Steel Inc., 755 F.3d 611, 616-17 (8 1h Cir. 2014) (holding that the economic loss
doctrine barred recovery on contractor's negligent misrepresentation claim); Simply Thick, LLC
v. Thermo Pac, LLC, No. 4:13-CV-1036 CAS, 2014 WL 3543403, at *7 (E.D. Mo. July 17,
2014) (dismissing plaintiff manufacturer's negligent misrepresentation claim as barred by the
economic loss doctrine). While the undersigned acknowledges that both Dannix and Bruce
Martin pertained to disappointed commercial claimants alleging negligent misrepresentation, the
Court finds that the reasoning should apply here as well, where Plaintiff has a remedy under a
breach of warranty theory. See Pollard, 2013 WL 3039797, at *4 (dismissing plaintiffs claim
that defendants fraudulently misrepresented that the purchased rifle was fit for the purpose and

15

free from defects because that theory gave rise to a warranty, not fraudulent misrepresentation,
claim). Thus, the Court will grant Defendant's motion to dismiss Plaintiffs claims for strict
products liability, negligence, and negligent misrepresentation.

E. Missouri Merchandising Practices Act
Next, Defendant argues that Plaintiffs claim under the Missouri Merchandising Practices
Act ("MMP A") must be dismissed because Plaintiff fails to allege an actionable deceptive
practice. "The MMPA is a broad statute, prohibiting ' [t]he act, use or employment by any
person of any deception, fraud, false pretense, false promise, misrepresentation, unfair practice,
or the concealment, suppression, or omission of any material fact in connection with the sale or
advertisement of any merchandise in trade or commerce .... "' Blake v. Career Educ. Corp. , No.
4:08CV00821 ERW, 2009 WL 140742, at *2 (E.D. Mo. Jan. 20, 2009) (quoting Mo. Rev. Stat.§
407.020.1) In MMPA actions, courts apply the particularity requirements of Fed. R. Civ. P. 9(b)
pertaining to fraud. Id. (citations omitted). Under this heightened pleading requirement, "the
complaint must plead such facts as the time, place, and content of the defendant's false
representations, as well as the details of the defendant' s fraudulent acts, including when the acts
occurred, who engaged in them, and what was obtained as a result." Mattingly v. Medtronic, Inc.
466 F. Supp. 2d 1170, 1174 (E.D. Mo. 2006) (citations omitted).

·

With regard to the MMP A specifically, "a plaintiff must first show that he or she
purchased the merchandise in question; second, that he or she purchased the merchandise for
personal, family, or household use; third, that he or she suffered an ascertainable loss; and fourth,
the ascertainable loss was the result of an unfair practice." Polk v. KV Pharm. Co. , No. 4:09CV-00588 SNLJ, 2011 WL 6257466, at *4 (E.D. Mo. Dec. 15, 2011) (citing Mo. Rev. Stat. §
407.025(1)). Plaintiff argues that he purchased Honeywell humidifiers for household use,

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suffered a monetary loss when the units failed, and the loss was a result of Defendant' s unfair
practice of omitting the material fact that the humidifiers were defective and falsely claiming that
they were free from defect in the warranty. Plaintiff points to scaling and mineral buildup, as
well as the need to replace the units prior to the expiration of the 5 year warranty period. (Am.
Compl.

~~

23, 140-41)

The undersigned finds that Plaintiff may be able to maintain an action against Defendant
under the MMP A based upon the allegedly defective nature of the Humidifiers and the alleged
false claims and omissions in the warranty. See, e.g., Stephens v. Arctic Cat Inc., No.
4:09CV02131AGF, 2012 WL 628867, at *1-*3 (E.D. Mo. Feb. 27, 2012) (denying defendant's
motion to dismiss plaintiffs MMP A claim that alleged numerous malfunctions with a purchased
ATV that required repairs, as well as failure of the warranty); Schuchmann v. Air Servs. Heating
& Air Conditioning, 199 S.W.3d 228, 233 (Mo. Ct. App. 2006) (finding a plaintiff could

maintain an MMP A claim against an air conditioner seller where that seller refused to honor a
lifetime warranty, thus constituting an unfair practice). However, in the instant case, Plaintiff
has failed to state his MMP A claim consistent with the heightened pleading standard required by
Rule 9(b). Missing from Plaintiffs claim are allegations of where he purchased the Honeywell
humidifiers at issue, as well as from whom he made the purchase. The pleadings are also scant
on details surrounding Honeywell's alleged refusal to provide further service on the replacement
unit that failed in December 2013. While specific names of employees are not required, the
Plaintiff must identify the "who, what, where, when, and how" of the alleged fraud "to allow
Defendant to prepare a defense to the MMPA charges." Claston v. Kum & Go, L.C. No. 6:14cv-03385 , 2014 WL 6685816, at *7 (W.D. Mo. Nov. 26, 2014) (citations and internal quotations
omitted); see also Scanio v. Zale Delaware, Inc., No. 4:12CV37 CDP, 2012 WL 368741, at *3

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(E.D. Mo. Feb. 3, 2012) (finding that "[i]ncluding the time, place, contents, and amount, even
without the names of the specific individuals responsible for the fraud, can be sufficient to satisfy
the requirements of Rule 9(b)" where specific names of employees can be obtained through
discovery).
However, instead of dismissing the claim, the Court will construe Defendant' s motion to
dismiss the MMP A count as one for a motion for more definite statement and allow Plaintiff
time to amend Count 7 of the Amended Complaint. See Pfitzer v. Smith & Wesson Corp., No.
4:13-CV-676-JAR, 2014 WL 636381 , at *3-*4 (E.D. Mo. Feb. 18, 2014) (construing the motions
to dismiss claims under the MMP A as motions for more definite statement and granting plaintiff
time to file an amended complaint to bring MMP A claims into conformity with Rule 9(b)
heightened pleading requirements). As such, the undersigned denies Defendant's motion to
dismiss Count 7 and will give Plaintiff twenty (20) days to file an amended complaint with an
MMPA claim that conforms to Rule 9(b).

F. Unjust Enrichment
Defendant also argues that Plaintiffs unjust enrichment claim must be dismissed because
Plaintiff entered into an express contract for the same subject matter for which he seeks recovery.
The undersigned finds that dismissal of the claim for unjust enrichment is not warranted.
Missouri law does not allow recovery under both an express contract and
equitable theories of relief. Level 3 Commc 'ns, LLC v. Illinois Bell Tel. Co., No. 4: 14CV-1080 (CEJ), 2014 WL 414908, at *6 (E.D. Mo. Feb. 4, 2014) (citation omitted).
However, a plaintiff may plead alternative claims for relief in the complaint. Id. ; see also
Superior Edge, No. 12-2672 (JRT/FLN), 2014 WL 4414764, at *6 (D. Minn. Sept. 8,

2014) (citations omitted) ("In reliance upon the Rule 8, federal courts in Missouri have

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consistently denied motions to dismiss quasi-contract claims even where the pleading
also alleges the existence of an express contract."). Thus, the Court will allow Plaintiff$
alternate claim for unjust enrichment and deny Defendant' s motion to dismiss with
. respect to the unjust enrichment count.
Accordingly,

IT IS HEREBY ORDERED that Defendant Honeywell International Inc. ' s
Motion to Dismiss Plaintiffs Class Action Complaint [ECF No.24] is GRANTED as to
Counts 2 (Breach of Warranty for a Particular Purpose), 4, 5, and 6 of Plaintiffs
Amended Complaint and DENIED as to Counts 1, 2 (Breach oflmplied Warranty of
Merchantability), 3, and 8.

IT IS FURTHER ORDERED that Defendant' s Motion to Dismiss Count 7,
construed .as a Motion for More Definite Statement is GRANTED.

IT IS FINALLY ORDERED that Plaintiff shall have twenty (20) days from the
date of this Memorandum and Order to amend his Complaint in accordance with the
foregoing.
Dated this 12th day of February, 2015.

RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

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