In Howard v. IKO Manufacturing, Inc., 2011 WL 2975813 (Mass.App.Div. July 20, 2011), plaintiff purchased, in late 1990, roof shingles which he claimed came with a “forty- or fifty-year warranty” but began to disintegrate in less than twenty years. Plaintiff complained to the manufacturer on December 2, 2008 and, exactly one year later, brought suit in Massachusetts District Court claiming, among other things, breach of express warranty and the implied warranty of merchantability. The manufacturer moved to dismiss, or in the alternative for summary judgment, on the basis, among others, that plaintiff’s warranty claims were barred by the statute of limitations. In support, the manufacturer attached an unsigned “specimen” warranty which ran for thirty years, required claims for repair or replacement to be made within thirty days of discovery of the defect and limited the time for bringing an action to one year after the cause of action accrued. After hearing, at which the trial judge stated he was treating defendant’s motion as one to dismiss rather than for summary judgment, the motion was allowed. Plaintiff appealed.

The Massachusetts District Court Appellate Division first decided to treat the trial court’s order as an entry of summary judgment because, despite the judge’s statement at the hearing, the order itself did not clearly state that the judge had excluded matters outside the pleadings from consideration. The court then determined that the trial judge should not have considered the specimen warranty attached to the manufacturer’s motion because it was not supported by any affidavit. Moreover, plaintiff’s affidavit stated that the specimen warranty had not applied to his purchase and that he had received a forty- or fifty-year warranty. Without the specimen warranty, and in the face of plaintiff’s affidavit, the manufacturer could not meet its burden of establishing that there was no genuine issue of material fact as to the applicable time for plaintiff to file his complaint.

Beyond this, the court noted that even if the trial judge had considered, and could consider, the specimen warranty, the critical issue was whether there was a genuine issue of material fact as to whether the consumer’s cause of action accrued before December 2, 2008, the cutoff date under the specimen warranty. The manufacturer submitted no evidence on this issue, simply arguing that if plaintiff complained to the manufacturer on December 2, 2008, he must have known of the alleged defect prior to that time. Noting that it was at least possible that plaintiff learned of the alleged breach on the same day he complained, the court found that defendant failed to show there was no genuine issue of material fact as to whether plaintiff had timely filed his express warranty claim.

Turning to plaintiff’s claim for breach of the implied warranty of merchantability, the court noted that such a warranty is contract-based and does not extend to future performance. Accordingly, any cause of action accrued when delivery was tendered, here 1990, regardless of whether the buyer had knowledge of a defect. Consequently, the court affirmed the dismissal of plaintiff’s implied warranty claim, holding it was barred by the statute of limitations, which required the action to be brought within four years of when the cause of action had accrued.