Waters et al v. Electrolux Home Products, Inc.
Filing
49
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S MOTION TO STRIKE, GRANTING DEFENDANT'S MOTION TO DISMISS AND PERMITTING PLAINTIFFS TO FILE A SECOND AMENDED COMPLAINT: Granting 39 Motion to Dismiss for failure to State a Claim, but allowi ng Plaintiffs to file within 14 days a 2nd amended complaint to include only the damages claim; Denying as Premature 41 MOTION to Strike THE OHIO CLASS filed by Electrolux Home Products, Inc., , and Denying as Moot 9 MOTION to Dismiss ; Signed by Senior Judge Frederick P. Stamp, Jr on 12/22/15. (soa)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
GLORIA WATERS and WILLIAM HALL,
on behalf of themselves and
others similarly situated,
Plaintiffs,
v.
Civil Action No. 5:13CV151
(STAMP)
ELECTROLUX HOME PRODUCTS, INC.,
Defendant.
MEMORANDUM OPINION AND ORDER
DENYING DEFENDANT’S MOTION TO STRIKE,
GRANTING DEFENDANT’S MOTION TO DISMISS AND
PERMITTING PLAINTIFFS TO FILE A SECOND AMENDED COMPLAINT
This
case
is
about
a
liability suit it inspired.
washing
machine
and
the
products
After years of use, the plaintiffs
allege that they found their washer had developed a “biofilm” that
ruined their clothing and emitted noxious fumes.
They filed this
class action against the manufacturer, Electrolux Home Products,
Inc. (“Electrolux”), for various products liability claims under
Ohio and West Virginia law.
Electrolux filed a motion to dismiss
under Rule 12(b)(6) and a motion to strike a portion of the class
definition.
For the following reasons, Electrolux’s motion to
strike is denied as premature, its motion to dismiss is granted,
and the plaintiffs are permitted to file a second amended complaint
solely regarding their negligent design and failure to warn claims.
I.
Background
The plaintiffs live in Weirton, West Virginia. They purchased
an
Electrolux
“high
efficiency”
washing
machine
Department Store in Steubenville, Ohio in 2009.
at
a
Sears
After years of
use, the plaintiffs noticed a noxious odor coming from their
washing machine.
They contacted Electrolux in July 2013 and were
told that they should leave the door of the machine open and run
regular cycles with a product called “Affresh®.”
The plaintiffs
tried these suggestions but saw no positive results.
Upon further investigation, the plaintiffs discovered that
their washer had developed a coat of “biofilm,” consisting of
bacteria and mold, in the washer drum.
This biofilm caused the
odor and was transferred to clothing and other articles washed in
the machine.
The plaintiffs allege that Electrolux knew its
washers allowed biofilm to develop, but continued to market them
with a special “Deep Clean Sanitize” cycle that it claimed would
kill “99.9% of bacteria with no carryover of bacteria between
loads.”
ECF No. 46 at 19.
The plaintiffs filed this class action in West Virginia state
court alleging consumer fraud, breach of warranties, and unjust
enrichment on behalf of all persons in West Virginia who own a
washing machine manufactured by Electrolux. The defendants removed
the case to this Court under the Class Action Fairness Act, 28
U.S.C. §§ 1453, 1711–1715.
Electrolux then moved to dismiss the
2
complaint under Federal Rule of Civil Procedure 12(b)(6), and the
plaintiffs filed a motion to remand and alternatively for leave to
amend the complaint.
This Court denied the motion to remand and
granted leave to amend the complaint.
The plaintiffs filed their
amended complaint defining a new class of persons in Ohio who
purchased or own a washer manufactured by Electrolux.
The amended complaint alleges violations of the West Virginia
Consumer
Credit
and
Protection
Act
(“WVCCPA”),
W.
Va.
Code
§§ 46A-6-101 to 46A-6-110, violations of the Ohio Consumer Sales
Practices Act (“OCSPA”), Ohio Rev. Code Ann. §§ 1345.01-1345.13,
breach of express warranties, breach of the implied warranty of
merchantability, tortious breach of warranties, negligent design
and failure to warn, and unjust enrichment.
Electrolux then
renewed its motion to dismiss and moved to strike the Ohio Class.
II.
A.
Discussion
Motion to Strike
Under Federal Rule of Civil Procedure 12(f), a court “may
strike from a pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.”
12(f).
Fed. R. Civ. P.
“Rule 12(f) motions are generally viewed with disfavor
‘because striking a portion of a pleading is a drastic remedy and
because it is often sought by the movant simply as a dilatory
tactic.’” Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 347
(4th Cir. 2001).
3
Electrolux
asks
this
Court
to
strike
from
the
amended
complaint the Ohio class definition, arguing that the plaintiffs do
not represent the Ohio class because they are West Virginia
residents.
The plaintiffs define the following two classes in
their amended complaint:
West Virginia Class
All persons an entities in the State of West Virginia who
purchased or own a[n] [Electrolux washing machine]
primarily for personal, family or household purposes.
Ohio Class
All persons and entities in the State of Ohio who
purchased or own a[n] [Electrolux washing machine]
primarily for personal, family, or household purposes.
ECF No. 38 at 6.
Despite Electrolux’s characterization of these
definitions, they are ambiguous regarding class-members’ residency.
Moreover, Electrolux’s problem with these definitions comes down to
whether the named plaintiffs are representative of each class; a
question
to
be
decided
on
a
motion
to
certify
the
classes.
Therefore, this Court finds that Electrolux’s motion to strike the
Ohio class is premature.
B.
Electrolux’s Motion to Dismiss the Amended Complaint
To survive a motion to dismiss under Rule 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
This plausibility
standard requires a plaintiff to articulate facts that, when
4
accepted as true, demonstrate that the plaintiff has stated a claim
that makes it plausible he is entitled to relief.
Francis v.
Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (citing Iqbal, 556
U.S. at 678; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
To determine whether the plaintiffs have satisfied this pleading
standard, this Court must first determine which law applies to the
named plaintiffs’ claims.
Under Federal Rule of Civil Procedure 15(a)(2), a plaintiff
may amend the complaint with the court’s leave, and a “court should
freely give leave [to amend a complaint] when justice so requires.”
Fed. R. Civ. P. 15(a)(2).
A court has broad discretion concerning
amendments to pleadings, but leave should be granted unless “the
amendment would be prejudicial to the opposing party, there has
been bad faith on the part of the [amending] party, or the
amendment would have been futile.”
Laber v. Harvey, 438 F.3d 404,
426-27 (4th Cir. 2006) (internal quotation marks omitted).
1.
Choice of Law Analysis
While exercising diversity jurisdiction, this Court must apply
West Virginia’s choice of law principles.
Klaxon Co. v. Stentor
Elec. Mfg. Co., 313 U.S. 487, 496-97 (1941).
In doing so, this
Court must first characterize the plaintiffs’ claims.
The plaintiffs’ claims for breach of express and implied
warranties and for unjust enrichment clearly sound in contract, as
they are based on an alleged contractual, or quasi-contractual,
5
relationship between the parties.
The claims for negligent design
and failure to warn and for tortious breach of warranty clearly
sound in tort, as they seek compensation for allegedly wrongful
conduct.
The plaintiffs’ claims for violations of Ohio and West
Virginia’s consumer fraud statutes are not as easy to define.
Both the Ohio and West Virginia statutes create private causes
of action for consumers against sellers of goods who violate the
statutes’ prohibitions against unfair or deceptive trade practices.
Ohio Rev. Stat. § 1345.09; W. Va. Code § 46A-6-106.
A cause of
action under each statute requires a plaintiff to show he or she
relied on the unfair or deceptive practice in entering into the
transaction,
and
that
the
practice
proximately
caused
the
plaintiff’s damages. See Temple v. Fleetwood Enters., Inc., 133 F.
App’x 254, 265 (6th Cir. 2005) (“[A] plaintiff must show ‘a
material
misrepresentation,
deceptive
act
or
omission’
that
impacted his decision to purchase the item at issue.” (quoting
Mathias v. Am. Online, Inc., No. 79427, 2002 WL 377159, *5 (Ohio
Ct. App. Feb. 28, 2002))); W. Va. Code §§ 46A-6-106(a), (b).
Both
statutes allow plaintiffs to recover actual damages; economic and
non-economic.
Ohio
Rev.
Stat.
§
1345.09(A);
W.
Va.
Code
§ 46A-6-106(a).
While the OCSPA allows an individual plaintiff to
rescind the transaction or recover actual damages, rescission is
not permitted in a class action.
(B).
Ohio Rev. Stat. § 1345.09(A),
Moreover, the OCSPA is “a remedial law which is designed to
6
compensate for traditional consumer remedies.”
Motor Co., 548 N.E.2d 933, 935 (Ohio 1990).
Einhorn v. Ford
Although aspects of
each statutory claim involve contractual issues, these statutes are
intended to compensate consumers for damages caused by sellers’
unfair or deceptive practices.
Therefore, these claims sound in
tort.
a.
Contract Claims
Because the plaintiffs’ claims arise out of a purported
contract for the sale of goods, the choice of law provisions in the
Uniform Commercial Code as adopted by West Virginia apply.
West
Virginia Code § 46-1-301 provides that where the parties did not
agree on what law should apply to their contract, West Virginia law
applies so long as the contract “bears an appropriate relation to
[West Virginia].”
W. Va. Code § 46-1-301(b).
Although West
Virginia courts have not yet applied § 46-1-301 in that regard,
those courts likely would apply West Virginia’s common law choice
of laws analysis to determine whether the contract “bears an
appropriate relation” to West Virginia.
See In re Digitek Prods.
Liab. Litig., MDL No. 2:08-md-01968, 2010 WL 2102330, *12 (S.D. W.
Va. May 25, 2010) (concluding that the “appropriate relation” test
requires the application of the Restatement (Second) of Conflict of
Laws factors West Virginia Courts apply to contract claims); U.C.C.
§ 1-105 cmt. 3 (“Where a transaction has significant contacts with
a state which has enacted the Act and also with other jurisdiction,
7
the question what relation is ‘appropriate’ is left to judicial
decision.”).
West Virginia considers the place of contracting, the place of
performance, and which state has the most significant relationship
to the contract under the Restatement (Second) of Conflict of Laws.
See New v. Tac & C Energy, Inc., 355 S.E.2d 629, 631 (W. Va. 1987).
The
Restatement
requires
courts
to
consider
the
place
of
contracting, the place of negotiation, the place of performance,
the location of the subject matter, and the parties’ domiciles.
Restatement (Second) of Conflict of Laws § 188(2).
Here, the claims arise out of a consumer contract for the
purchase of a washer and any terms attached to it.
The place of
contracting was Ohio because the plaintiffs purchased their machine
there.
The subject matter of the contract moved between Ohio and
West Virginia, because the plaintiffs moved the machine from the
Sears store in Ohio to their home in West Virginia. The plaintiffs
reside in West Virginia, and Electrolux is incorporated in Delaware
and with its principal place of business in North Carolina.
Because the contract was formed in Ohio, that state has the most
significant relationship to the contract.
Therefore, Ohio law
applies to the plaintiffs’ breach of express and implied warranty
claims and unjust enrichment claim.
8
b.
Tort Claims
In West Virginia, the law of the place of harm applies in tort
actions.
Perkins v. Doe, 350 S.E.2d 711, 713 (W. Va. 1986).
The
plaintiffs claim actual damages to their personal property and
health and safety. Because the plaintiffs reside in West Virginia,
they sustained those damages there.
Although the plaintiffs were
economically injured when they purchased the defective machine in
Ohio, the most significant damages occurred in West Virginia after
biofilm developed in their machine, ruined their clothing, and
emitted noxious fumes. Therefore, West Virginia law applies to the
negligent design and failure to warn claims, the tortious breach of
warranty claim, and the consumer fraud claims.
2.
Breach of Express Warranty
The
plaintiffs
warranties
contained
allege
in
that
Electrolux
advertising
and
a
breached
repair-and-replace
warranty contained in the washer’s “Use and Care Guide.”
the
plaintiffs
fail
to
allege
sufficient
express
facts
However,
showing
Electrolux’s advertising created express warranties.
that
They also
fail to allege that Electrolux breached the repair-and-replace
warranty within its one-year limitation.
Under Ohio law, an ultimate consumer may maintain an action
directly against a manufacturer, without privity, for breach of an
express warranty where: (1) the manufacturer makes representations
regarding
the
quality
and
merit
9
of
its
product;
(2)
the
representations are aimed directly at the ultimate consumer; (3)
the
consumer
purchases
the
product
in
reliance
on
the
manufacturer’s representations; and (4) the consumer is harmed
because of that reliance.
DiCenzo v. A-Best Prods. Co., Inc., 897
N.E.2d 132, 158 (Ohio 2008); Rogers v. Toni Home Permanent Co., 147
N.E.2d 612, 613-14, 616 (Ohio 1958).
a.
The
Advertisements
plaintiffs
advertising
that
allege
its
that
machines
Electrolux
“exclusive
represented
technology
in
gets
[consumers’] clothes cleaner than any other washer,” and that its
sanitizing cycle “will kill 99.9% of bacteria with no carryover of
bacteria between loads.” ECF No. 46 at 19. Electrolux argues that
these statements did not create express warranties because they are
mere puffery.
Under
Ohio
law,
a
manufacturer’s
advertisements
for
its
products create an express warranty if the statement is either an
“affirmation of fact or promise made by the seller to the buyer
which relates to the goods and becomes part of the basis of the
bargain,” or the statement constitutes a “description of the goods
which is made part of the basis of the bargain.”
Ohio Rev. Code
§ 1302.26(A); see also Jones v. Kellner, 451 N.E.2d 548, 549 (Ohio
Ct. App. 1982).
But, “an affirmation merely of the value of the
goods or a statement purporting to be merely the seller’s opinion
or commendation of the goods does not create a warranty.”
10
Ohio
Rev. Code § 1302.26(B); see also Bobb Forest Products, Inc. v.
Morbark Indus., Inc., 783 N.E.2d 560, 574 (Ohio Ct. App. 2002)
(“[P]uffing” or merely stating the seller’s opinion does not amount
to an express warranty.”).
Electrolux’s statements that its washers “get[] [consumers’]
clothes cleaner than any other washer” or “will kill 99.9% of
bacteria
with
no
carryover
of
bacteria
unverifiable expressions of opinion.
between
loads”
are
This Court finds that no
reasonable consumer would take those statements as an “affirmation
of fact or promise,” or a description that would serve as the basis
of the bargain. Ohio Rev. Code § 1302.26(A). Those statements did
not create express warranties.
b.
Repair-and-Replace Warranty
The plaintiffs allege that Electrolux breached its express
warranty contained in the machine’s Use and Care Guide to repair or
replace defective parts.
Electrolux does not contest that the Use
and Care Guide contained a “one year limited warranty” obligating
Electrolux to “repair or replace any parts of [the machine] that
prove to be defective in materials or workmanship when such
[machine] is installed, used, and maintained in accordance with the
provided instructions.”
ECF No. 4 Ex. 1 at 32.
Nor does
Electrolux deny that it refused to repair or replace any part of
the machine when the plaintiffs called in 2013 to complain about
the biofilm buildup.
Rather, Electrolux argues that the claim is
11
barred because the plaintiffs made their complaints after the oneyear limitation period ran.
is
not
barred
by
the
The plaintiffs argue that their claim
one-year
limitation
because
it
is
unconscionable.
“Unconscionability includes both an absence of meaningful
choice on the part of one of the parties together with contract
terms which are unreasonably favorable to the other party.”
Hayes
v. Oakridge Home, 908 N.E.2d 408, 412 (Ohio 2009) (internal
quotation marks omitted).
“The party asserting unconscionability
of a contract bears the burden of proving that the agreement is
both procedurally and substantively unconscionable.”
(1)
In
assessing
Id.
Substantive Unconscionability
substantive
unconscionability,
courts
must
consider whether the terms of the contract are “commercially
reasonable.” Id. at 414. While there are “[n]o bright-line set of
factors for determining substantive unconscionability,” courts have
considered: (1) “the fairness of the terms”; (2) “the charge for
the service rendered”; (3) “the standard in the industry”; and (4)
“the ability to accurately predict the extent of future liability.”
Id.
As for limited warranties, “[a] warranty disclaimer that
leaves a party with a defective product and no avenue for recourse
against the manufacturer is unconscionable. However, a warranty in
which the party disclaiming warranties or remedies assumes some
form of responsibility for the performance or maintenance of the
12
product in issue is not unconscionable.”
Westfield Ins. Co. v.
Huls Am., Inc., 714 N.E.2d 934, 949 (Ohio Ct. App. 1998) (emphasis
added).
Electrolux’s
limited
warranty
obligated
it
to
repair
or
replace its washer’s defective parts within one year of purchase.
Thus, Electrolux “assume[d] some form of responsibility for the
performance or maintenance” of its machines.
if
Electrolux
knew
before
marketing
its
Id.
Moreover, even
machines
that
they
developed biofilm, there is no authority in Ohio to suggest that
prior
knowledge
unconscionable,
of
and
a
other
defect
courts
makes
have
a
limited
recognized
warranty
that
prior
knowledge alone does not make a limited warranty unconscionable.
See Abraham v. Volkswagen of Am., Inc., 795 F.2d 238, 250 (2d Cir.
1986) (“Manufacturers always have knowledge regarding the effective
life of particular parts and the likelihood of their failing within
a particular period of time . . . .
A rule that would make failure
of a part actionable based on such ‘knowledge’ would render
meaningless . . . limitations in warranty coverage.”).
Therefore,
the plaintiffs have failed to plead sufficient facts for this Court
to conclude that the one-year warranty limitation is substantively
unconscionable.
(2)
To
determine
Procedural Unconscionability
whether
a
contract
is
procedurally
unconscionable, courts must consider “the circumstances surrounding
13
the contracting parties’ bargaining,” including: (1) “the parties’
age, education, intelligence, business acumen, and experience”; (2)
“who drafted the contract”; (3) “whether alterations in the printed
terms were possible”; (4) “whether there were alternative sources
of supply for the goods in question”; (5) “belief by the stronger
party that there is no reasonable probability that the weaker party
will fully perform the contract”; (6) knowledge of the stronger
party that the weaker party will be unable to receive substantial
benefits from the contract”; and (7) knowledge of the stronger
party that the weaker party is unable reasonably to protect his
interests by reason of physical or mental infirmities, ignorance,
illiteracy[,] or inability to understand the language of the
agreement.”
omitted).
Hayes, 908 N.E.2d at 413 (internal quotation marks
“All of the factors must be examined and weighed in
their totality . . . [and] must be considered in tandem with the
analysis on substantive unconscionability.”
Id. at 414.
The plaintiffs argue that the warranty terms contained in the
Use and Care Guide constitute a contract of adhesion.
Ohio
law
suggests
that
contracts
of
adhesion
may
Although
be
per
se
procedurally unconscionable, see Williams v. Aetna Fin. Co., 700
N.E.2d
859,
872-73
(Ohio
1998)
(noting
that
a
“finding
of
procedural unconscionability, or that the contract is one of
adhesion, . . . requires more” than a disparity of bargaining
power), this Court need not decide this issue.
14
Even if the one-
year
limited
plaintiffs
warranty
have
unconscionable.
is
failed
to
procedurally
show
that
unconscionable,
it
is
the
substantively
Therefore, the plaintiffs’ breach of express
warranty claims are barred because the alleged breach occurred
outside the warranty period.
3.
Breach of Implied Warranty of Merchantability
Claims for breach of an implied warranty are governed by Ohio
Revised Code § 1302.27.
“Unless excluded or modified . . . , a
warranty that the goods shall be merchantable is implied in a
contract for their sale if the seller is a merchant with respect to
goods of that kind.”
Ohio Rev. Code § 1302.27(A).
So, to state a
breach of implied warranty claim, the plaintiff must show: (1) that
the defendant is a “merchant with respect to goods of that kind,”
id.; (2) that the parties are in privity of contract, Caterpillar
Fin. Servs. Corp. v. Harold Tatman & Son’s Enters., Inc.,
N.E.3d
, 2015-Ohio-4884, ¶ 21 (Nov. 20, 2015); and (3) that the goods
did
not
satisfy
the
criteria
set
out
in
Ohio
Rev.
Code
§ 1302.27(B).
The plaintiffs purchased their washer from a retailer, not
directly from Electrolux.
contract.
Thus, the parties are not in privity of
Nevertheless, the plaintiffs argue that an exception to
the privity requirement applies here because they were an intended
third-party beneficiary to a contract between Sears and Electrolux.
15
The privity requirement does not apply where either: (a) “the
manufacturer is so involved in the sales transaction that the
distributor merely becomes the agent of the manufacturer”; or (b)
the
consumer
contract.”
is
“an
intended
third-party
beneficiary
to
a
Bobb Forest Prods., Inc. v. Morbark Indus. Inc., 783
N.E.2d 560, 576 (Ohio Ct. App. 2002) (internal quotation marks
omitted).
To be an intended third-party beneficiary, the promisee
must intend for that third-party to benefit from the contract.
Hill v. Sonitrol of Sw. Ohio, 521 N.E.2d 780, 784-85 (Ohio 1988).
However, the “mere conferring of some benefit on the supposed
beneficiary
by
the
performance
of
a
particular
promise
[is]
insufficient; rather, the performance of that promise must also
satisfy a duty owed by the promisee to the beneficiary.”
Id. at
785 (alteration in original) (internal quotation marks omitted).
The plaintiffs argue that they were intended beneficiaries of
a warranty of merchantability conveyed from Electrolux to Sears
because Electrolux intended that its washers would be sold to
individual consumers.
But the plaintiffs have not plead any facts
regarding a contract between Electrolux and Sears, or whether that
contract
included
merchantability.
or
Even
excluded
if
the
Electrolux
implied
conveyed
warranty
a
warranty
of
of
merchantability to Sears, at most the plaintiffs only incidentally
benefitted from it.
The performance of Electrolux’s promise of
merchantability to Sears did not satisfy a duty owed by Electrolux
16
to
the
plaintiffs
plaintiffs.
because
Electrolux
owed
no
duty
to
the
Therefore, the plaintiffs were not intended third-
party beneficiaries of any assumed warranty of merchantability
between Electrolux and Sears.
Even if the plaintiffs were in privity with Electrolux, their
claim is barred because they were not brought within the one-year
period set out in the Use and Care Guide.
“CLAIMS
BASED
ON
IMPLIED
WARRANTIES,
The Guide provided that
INCLUDING
MERCHANTABILITY . . . ARE LIMITED TO ONE YEAR.”
at 32 (emphasis in original).
WARRANTIES
OF
ECF No. 40 Ex. 1
Thus, just like their breach of
express warranties claims, the plaintiffs’ claim for breach of the
implied warranty of merchantability are barred as outside the
warranty period.
4.
Unjust Enrichment
To state a claim for unjust enrichment under Ohio law, a
plaintiff must prove: (1) that the plaintiff conferred a benefit on
the defendant; (2) that the defendant had knowledge of the benefit;
(3) that the defendant retained the benefit; and (4) that it would
be unjust for the defendant to retain the benefit without paying
the plaintiff.
Hambleton v. R.G. Barry Corp., 465 N.E.2d 1298,
1302 (Ohio 1984).
“[A]n indirect purchaser cannot assert a common
law claim for . . . unjust enrichment against a defendant without
establishing that a benefit had been conferred upon that defendant
by the purchaser.” Johnson v. Microsoft Corp., 834 N.E.2d 791, 799
17
(Ohio 2005). Moreover, an indirect purchaser cannot establish that
the
manufacturer
retained
a
benefit
without
“economic transaction occurred between” them.
showing
that
an
Id.
The plaintiffs allege that Electrolux received a tangible
economic benefit in that the plaintiffs “paid a premium price for
the[ir washer] that Electrolux represented as being suitable for
ordinary use, and merchantable,” and that Electrolux was able to
“avoid[] costs associated with correcting the defects, making
repairs, and recalling the defective [w]ashing [m]achines.”
No. 38 at 26.
ECF
However, even if Electrolux tangentially benefitted
as the plaintiffs claim, this “benefit” does not constitute an
economic transaction between the parties as required under Ohio
law.
Therefore,
the
plaintiffs
cannot
establish
that
they
conferred a benefit on Electrolux that it unjustly retained.
5.
Negligent Design and Failure to Warn
In West Virginia, a manufacturer is strictly liable for
injuries caused by its products if “the involved product is
defective in the sense that it is not reasonably safe for its
intended use.
The standard of reasonable safeness is determined
. . . by what a reasonably prudent manufacturer’s standards should
have been at the time the product was made.”
Ilosky v. Michelin
Tire Corp., 307 S.E.2d 603, 609 (W. Va. 1983).
“[T]he initial
inquiry . . . focuses on the nature of the defect and whether the
defect was the proximate cause of the plaintiff’s injury.”
18
Id.
(internal quotation marks omitted).
“[A] defective product may
fall into three broad, and not mutually exclusive, categories:
design
defectiveness;
structural
defectiveness;
and
use
defectiveness arising out of the lack of, or the adequacy of,
warnings, instructions, and labels.
Id. (emphasis and internal
quotation marks omitted).
The
plaintiffs
plead
both
design
defectiveness
and
use
defectiveness. To show design defectiveness, a plaintiff must show
that “the physical condition of the product . . . renders it unsafe
when
the
product
is
used
in
a
reasonably
intended
manner.”
Morningstar v. Black & Decker Mfg. Co., 253 S.E.2d 666, 682 (W. Va.
1979). To show use defectiveness, the plaintiff must show that the
defendant breached its duty to warn.
“For a duty to warn to exist,
the use of the product must be foreseeable to the manufacturer or
seller.”
Ilosky, 307 S.E.2d at 609.
“The question of what is an
intended use of a product carries with it the concept of all those
uses a reasonably prudent person might make of the product having
in mind its characteristics, warnings and labels.”
and internal quotation marks omitted).
Id. (emphasis
“The determination of
whether a defendant’s efforts to warn of a product’s dangers are
adequate is a jury question.”
The
plaintiffs
allege
Id. at 611.
that
Electrolux’s
washers
develop
biofilm, made up of bacteria and mold, in the washer drum in the
course of ordinary use, and that Electrolux knew of this defect.
19
Electrolux did not provide warnings to consumers that the machines
“carried with them greater risks of bacteria, biofilm, and mold
growth and health hazards tha[t] an ordinary consumer would not
expect when using the [m]achines.”
ECF No. 38 at 25.
Electrolux
argues that the plaintiffs’ claims fail because they have not
sufficiently plead that the alleged defect and failure to warn
makes the washers “unsafe” or that the named plaintiffs incurred a
non-economic loss.
First, “[t]he term ‘unsafe’ imparts a standard that the
product is to be tested by what the reasonably prudent manufacturer
would accomplish in regard to the safety of the product, having in
mind the general state of the art of the manufacturing process,
including design, labels and warnings, as it relates to economic
costs, at the time the product was made.”
at 682-83.
Morningstar, 253 S.E.2d
The plaintiffs allege that Electrolux knew its washers
“carried with them greater risks of bacteria, biofilm, and mold
growth and health hazards that an ordinary consumer would not
expect when using the [m]achines.”
ECF No. 38 at 25.
They further
allege that “the development of biofilm . . . can lead to a host of
health problems, including allergies and complications due to
asthma.”
ECF No. 38 at 2.
These allegations are sufficient to
show that a reasonably prudent manufacturer would endeavor to
design a washing machine to prevent the development of biofilm or
to warn consumers about such risks. Therefore, the plaintiffs have
20
sufficiently plead that the alleged defects make the machines
“unsafe.”
Second, in a strict products liability suit, plaintiffs may
recover damages for personal injury and for “damage to property
other than the defective product.”
Star Furniture Co. v. Pulaski
Furniture Co., 297 S.E.2d 854, 857 (W. Va. 1982).
Plaintiffs may
not recover “the difference between the value of the product
received
and
its
purchase
calamitous event.”
Electrolux
price
in
the
absence
of
a
sudden
Id. at 859.
notes
that
the
plaintiffs
seek
damages
for
“spend[ing] money to repair and/or replace the defective” washer,
ECF No. 38 at 25, and argues that these constitute damages for
diminution in value, not for personal injury or property damage.
The plaintiffs generally plead that Electrolux’s washers transfer
biofilm to clothing and other articles washed in them, and that the
machines
“can
lead
to
a
host
of
health
allergies and complications due to asthma.”
problems,
including
ECF No. 38 at 2.
However, the present allegations are not specific to the named
plaintiffs.
plaintiffs
This Court is unable to ascertain whether the named
specifically
suffered
personal
damaged due to their defective washer.
fail
to
sufficiently
Electrolux’s conduct.
plead
damages
injury
or
property
Therefore, the plaintiffs
proximately
caused
by
Because the plaintiffs generally plead
damages to consumers caused by the alleged defects, the plaintiffs
21
likely can plead damages specifically sustained by the named
plaintiffs without prejudicing Electrolux.
Thus, this Court will
permit the plaintiffs to file a second amended complaint providing
allegations
of
damages
specifically
incurred
by
the
named
plaintiffs due to Electrolux’s alleged negligent design and failure
to warn.
6.
Tortious Breach of Warranty
The plaintiffs allege a claim for tortious breach of warranty
under Ohio law.
A claim for tortious breach of warranty in Ohio is
one for strict products liability.
See Temple v. Wean United,
Inc., 364 N.E.2d 267, 270 (1977) (providing that a plaintiff must
prove that the product was defective when it was manufactured and
sold by the defendant, that the defect existed when it left the
defendant’s control, and that the defect proximately caused the
plaintiff’s injury or loss).
Because West Virginia law applies to
the plaintiffs’ tort-based claims, the plaintiffs may not state a
second products liability claim under Ohio law.
7.
Consumer Fraud Claims
The WVCCPA provides a private right of action to consumers who
suffer economic loss due to unfair or deceptive trade practices.
W. Va. Code § 46A-6-106(a).
A plaintiff must show: (1) that the
defendant employed “[u]nfair methods of competition or deceptive
acts or practices,” id. § 46A-6-104; (2) that the plaintiffs
suffered an ascertainable loss; and (3) that the plaintiff’s loss
22
was
proximately
caused
by
the
defendant’s
conduct.
Id.
§ 46A-6-106(a), (b). The term “[u]nfair methods of competition and
unfair or deceptive acts or practices” includes the “use or
employment
.
.
.
of
any
.
.
.
misrepresentation,
or
the
concealment, suppression or omission of any material fact with
intent that others rely upon [it] in connection with the sale or
advertisement of any goods or services.”
Id. § 46A-6-102(7)(M).
If the plaintiff “alleges that an affirmative misrepresentation is
the basis for his or her claim then [the plaintiff] must prove that
the deceptive act or practice caused him or her to enter into the
transaction.”
Id. § 46A-6-106(b).
Further, “no action . . . may
be brought [under the WVCCPA] . . . until the [plaintiff] has
informed the [defendant] . . . in writing and by certified mail,
return receipt requested, of the alleged violation and provided the
seller or lessor twenty days from the receipt of the notice of
violation . . . to make a cure offer.”
Id. § 46A-6-106(c).
The plaintiffs argue that they “have generally pleaded notice”
by alleging that Electrolux had the opportunity to make a cure
offer “after learning of the [p]laintiffs’ case.”
ECF No. 46 at
24. However, the WVCCPA requires a plaintiff to provide notice “in
writing and by certified mail,” not by filing a complaint.
Code § 46A-6-106(c).
W. Va.
Because providing written notice is a
prerequisite to filing a complaint, the plaintiffs’ complaint
cannot have served as the required notice.
23
The plaintiffs failed
to plead that they notified Equitrans in writing of the alleged
violations prior to filing their complaint. Therefore, their claim
under the WVCCPA is barred.
The plaintiffs also claim unfair or deceptive trade practices
under
the
OCSPA.
Because
West
Virginia
law
applies
to
the
plaintiffs’ consumer fraud based claims, the plaintiffs may not
state a second consumer fraud claim under Ohio law.
III.
Conclusion
The plaintiffs failed to state a claim upon which relief can
be
granted.
However,
this
Court
grants
the
plaintiffs
the
opportunity to file a second amended complaint solely regarding
damages
the
named
plaintiffs
personally
suffered
due
to
the
defendant’s alleged negligence in designing their washer and its
failure
to
warn
about
the
potential
development
of
biofilm.
Accordingly, the defendant’s motion to strike the Ohio class (ECF
No. 41) is DENIED AS PREMATURE, the defendant’s motion to dismiss
(ECF No. 39) is GRANTED, but the plaintiffs may file within
fourteen days of the entry of this order a second amended complaint
to include damages specifically incurred by the named plaintiffs
due to Electrolux’s alleged negligent design and failure to warn.
The plaintiffs will not be permitted to amend their complaint
regarding any other claims at this time.
24
Further, the defendant’s
prior motion to dismiss the original complaint (ECF No. 9) is
DENIED AS MOOT.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this order to
counsel of record herein.
DATED:
December 22, 2015
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
25
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