United States District Court, D. New Hampshire
McCafferty, United States District Judge
Brian Begley brings this action against defendants Windsor
Surry Company d/b/a WindsorONE and Windsor Willits Company
d/b/a Windsor Mill. Begley raises a No. of claims relating to
allegedly defective wood products that defendants manufacture
and sell. Begley brings this action individually and on
behalf of a putative class of New Hampshire consumers.
Defendants move to dismiss the amended complaint and to
strike the class allegations. Begley objects to both motions.
For the following reasons, the motion to dismiss is granted
in part and denied in part, and the motion to strike is
following facts are taken from Begley's amended
complaint, unless otherwise noted. This action relates to
certain wood products that defendants manufacture and sell:
the “WindsorONE line of pre-primed trim board
products.” Doc. no. 17 at 14. Since 1996, defendants
have manufactured and sold these trim boards for exterior
construction-as fascia, soffit, rake board, corner board, and
window trim-as well as for interior applications.
trim board is made from Radiata Pine wood. Begley alleges
that “nearly all” of the Radiata Pine that
defendants use is sapwood, which is the outer portion of the
tree stem. Id. at 15. Radiata Pine sapwood has no
inherent rot resistance.
manufacture a board, defendants first cut wood from juvenile
Radiata Pine trees. They cut a No. of smaller boards in a
manner so as to remove knots and other imperfections from the
wood, and then glue these boards together with an adhesive to
make a single, “finger-jointed” board.
Id. at 14. “[E]xterior-grade primer” is
applied on the trim board before it is delivered to
distributors. Id. at 15.
Defendants marketed and advertised the boards as suitable for
exterior application on buildings and other wood structures.
Defendants stated that, as a result of its manufacturing
process, WindsorONE trim board could be thought of as
“turbo wood, ” because it “benefits from
structural stability, decreased cupping, warping or
twisting” and because it is “defect free.”
Id. at 19. Defendants advertised the board as
providing consumers with “the durability and long term
performance [they] require in a finger joint Trim Board-free
of defects.” Id. Defendants also stated that
the joints connecting the smaller pieces of the board
together “are stronger than the wood itself, and
waterproof.” Id. Defendants advertised
WindsorONE as superior to wood products made from other trees
like cedar, redwood, pine, and fir. Defendants represented
that they “use the highest quality materials to produce
the highest quality products.” Id. at 21
provide a ten-year warranty for their end and edge gluing,
and a five-year warranty for their primer. On their website,
defendants state that they “will replace, without
charge, any WindsorONE product that installed [sic] according
to directions and fails to meet” the warranties.
Id. at 28. Further, “[s]uch replacement is the
exclusive remedy for breach of warranty, ” and
“[t]here are no warranties, expressed or implied,
including merchantability, ” beyond the glue and primer
alleges that, contrary to defendants' marketing, neither
the adhesive glue nor the wood itself can withstand normal
outdoor weather conditions. The adhesive glue, while water
resistant, is not actually waterproof and therefore breaks
down through exposure to rain, snow, and other conditions.
This allows water to penetrate the pieces of the board,
which-because it has no resistance to rot-decays, rots,
warps, and splits prematurely. The deterioration of the board
can then cause deleterious effects on the underlying
structure. Begley notes that treating the boards with a wood
preservative could ameliorate this issue, but WindsorONE
boards are not treated with any preservatives. Begley claims
that WindsorONE board is thus of lower quality than boards
made with cedar, redwood, Douglas fir, or eastern white pine
wood, which are naturally rot resistant. Begley also alleges
that defendants have known about these problems “for
decades” but have nonetheless continued to market
WindsorONE board as suitable for exterior applications.
Id. at 3.
experience with defendants and WindsorONE trim board began in
2004. In that year, Begley started construction on his new
home in New Hampshire. He hired Paul Vandenberg to build the
home. In August 2004, Vandenberg purchased WindsorONE trim
boards through a local distributor and installed them
throughout the exterior of the home. In total, 9, 712 linear
feet of WindsorONE trim board were used on the home.
Vandenberg purchased the trim board, the local distributor
told him that WindsorONE “was great for exterior
use” and “was the best trim board product on the
market for exterior use.” Id. at 27. In
addition, the distributor provided Vandenberg with WindsorONE
marketing materials, product brochures, and information
regarding the product warranties. Vandenberg relayed the
information he learned from these sources to Begley. They
decided to purchase WindsorONE trim boards “based on
the information Vandenberg received . . . and thereafter
communicated to [Begley].” Id.
completed construction in February 2005, after which Begley
and his wife moved into the home. In spring 2007, Begley
noticed that some pieces of the trim board were rotting,
deteriorating, or crippling at the ends. He also saw that
there were splits, warping, and fungi growing out of some of
next year, in spring 2008, Begley noticed that the damage he
had observed previously was spreading to other areas of his
home-in total, 384 linear feet were affected. He contacted
Vandenberg, who conducted an inspection. Vandenberg confirmed
that it was WindsorONE trim board that was deteriorating,
and, on Begley's behalf, he filed a warranty claim with
defendants for the 384 linear feet of deteriorated trim
board. Vandenberg also requested that defendants send a
representative to inspect Begley's home.
sent an agent from Norcon Forestry Ltd.
(“Norcon”) to inspect the property. After
inspecting the property, the agent sent Vandenberg a report
dated July 12, 2008. In the report, the agent concluded,
“[A]lmost all of the damage to the trim boards may be
attributed to poor design or construction practices over
which Windsor had no control. As the observed damage is
design or installation related, Windsor does not have
practical responsibility.” Id. at 29.
August, Norcon sent a letter to Vandenberg, which was
addressed to Vandenberg, Begley, and Mrs. Begley. At the top
of the letter is the following disclaimer: “OFFER OF
SETTLEMENT MADE ON A WITHOUT PREJUDICE BASIS.” Doc. no.
17-1 at 2. Enclosed with the letter is a release (“2008
Release”). The letter informs Vandenberg and the
Begleys that Windsor Mill would supply 400 linear feet of new
WindsorONE trim board in exchange for the execution of the
release. The letter states, “This commitment is not an
admission of liability by Windsor Mill, is made without
prejudice to any of Windsor Mill's legal rights and is
done solely in the interests of achieving an amicable
settlement.” Id. The attached release provides
In consideration of Windsor Mill providing the following
WindsoOne [sic] Protected Trim Boards . . . Mr. and Mrs.
Begley (“Homeowners”), and Mr. Vandenberg
(“Builder”), as “Releasors” herein, .
. . hereby releases and forever discharges Windsor Mill . . .
and its affiliates, agents, successors and assigns from
all claims, debts, causes of action, agreements and
liabilities of whatever kind or nature, which they now have,
may have or ever had, whether presently known or unknown to
them, including any claims arising from any purchase or
installation of materials made or supplied by Windsor Mill
for house construction at [Begley's property].
Doc. 17-2 at 2 (emphasis added). Vandenberg told the Begleys
that they could receive credit with the local distributor for
the 400 feet of trim board, but only if they signed the
release. The Begleys and Vandenberg then executed the
release, and Begley used the credit to purchase a different
trim board product.
alleges that, in fact, defendants' warranty-claim process
is an artifice, as defendants have “no intention of
providing the services set forth in their warranties.”
Doc. no. 17 at 2. Defendants allegedly deny warranty claims
based on improper installation despite the fact that
“no method of installation would avoid or cure the
inherently defective nature of [d]efendants'
design.” Id. at 45.
seven years later, in 2015, Mrs. Begley noticed additional
deterioration of other WindsorONE trim boards on the home.
She filed a second warranty claim with defendants. Norcon,
again acting as defendants' agent, communicated with Mrs.
Begley in spring 2016 to resolve her claim. As in 2008,
Norcon sent another release for the Begleys to sign. In
exchange for the second release, the Begleys would receive
another 400 linear feet of WindsorONE trim board. Because
the offered trim board would only cover a small portion of
the deteriorating wood they had discovered, the Begleys
declined to sign the second release.
2017, Begley filed the present action, both on his own behalf
and as a class action. In his amended complaint, Begley
raises the following claims: (1) breach of express warranty;
(2) breach of the implied warranty of merchantability; (3)
negligence; and (4) declaratory and injunctive
relief.Begley defines the putative class as
“[a]ll persons and entities in . . . New Hampshire who
own or owned homes, apartments, office buildings, or other
structures in which WindsorONE trim board is or was
installed, from 2001 to the present.” Id. at
have filed a motion to dismiss and a motion to strike the
class allegations from Begley's complaint. The court
addresses each motion below.
Motion to Dismiss
support of their motion to dismiss, defendants argue: (A) the
2008 Release bars all of Begley's claims; (B) the statute
of limitations bars all of Begley's claims; (C) the claim
for breach of express warranty fails because the complaint
does not sufficiently allege any representation that became
the basis of the bargain; (D) the claims for declaratory and
injunctive relief are inappropriate because Begley has
adequate remedies at law, and Begley had no standing to seek
injunctive relief; and (E) Begley is not entitled to seek
punitive damages under New Hampshire law. After summarizing
the standard of review, the court examines each argument in
Rule 12(b)(6), the court must accept the factual allegations
in the complaint as true, construe reasonable inferences in
the plaintiff's favor, and “determine whether the
factual allegations in the plaintiff's complaint set
forth a plausible claim upon which relief may be
granted.” Foley v. Wells Fargo Bank, N.A., 772
F.3d 63, 71 (1st Cir. 2014) (internal quotation marks
omitted). A claim is facially plausible “when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). In addition,
“[e]xhibits attached to the complaint are properly
considered part of the pleading for all purposes, including
Rule 12(b)(6).” Trans-Spec Truck Serv., Inc. v.
Caterpillar Inc., 524 F.3d 315, 321 (1st Cir. 2008)
(internal quotation marks omitted).
release may bar a subsequent action if it applies to the
defendant, encompasses the claims asserted in the subsequent
action, and is legally enforceable. See Bourne v. Town of
Madison, 494 F.Supp.2d 80, 96 (D.N.H. 2007). Defendants
argue that the 2008 Release is enforceable and unambiguously
covers the claims that Begley raises in this action.
Defendants broadly interpret the 2008 Release to cover
“all claims (present and future, known and unknown)
against [defendants] regarding any materials made or supplied
by Windsor Mill.” Doc. no. 23-1 at 12.
responds that the 2008 Release is ambiguous and that,
considering the circumstances surrounding its execution and
the parties' subsequent conduct, the 2008 Release should
be interpreted to cover only claims “relating to the
384 linear feet of trim that failed as of the date of the
Release.” Doc. no. 27-1 at 8. In the alternative,
Begley contends the 2008 Release is unconscionable and
court concludes that the 2008 Release unambiguously covers
Begley's present claims, but that Begley has plausibly
alleged that the 2008 Release is unconscionable.
Interpretation of the 2008 Release
parties rely on New Hampshire law in interpreting and
assessing the enforceability of the 2008 Release. When
interpreting a contract under New Hampshire law, the court
must “give the language used by the parties its
reasonable meaning, considering the circumstances and the
context in which the agreement was negotiated, and reading
the document as a whole.” Camden Nat'l Bank v.
Greystone Select Holdings, LLC, No. 17-cv-272-JL, 2017
WL 5146166, at *2 (D.N.H. Nov. 3, 2017) (quoting In re
Liquidation of Home Ins. Co., 166 N.H. 84, 88 (2014)).
“The language of a contract is ambiguous if the parties
to the contract could reasonably disagree as to the meaning
of that language.” Id. (quoting Found. for
Seacoast Health v. Hosp. Corp. of Am., 165 N.H. 168, 172
(2013)). “Absent ambiguity, the parties' intent
will be determined from the plain meaning of the language
used in the contract.” Id. (internal quotation
marks omitted). “The interpretation of a contract,
including whether a contract term is ambiguous, is ultimately
a question of law for [the] court to decide.” Birch
Broad., Inc. v. Capitol Broad. Corp., Inc., 161 N.H.
192, 196 (2010).
case, Begley does not argue that any particular term of the
2008 Release is ambiguous. Rather, Begley contends that the
scope of the 2008 Release becomes ambiguous in light of the
surrounding circumstances, the parties' subsequent
conduct, and the parties' subjective intent. For example,
Begley contends that the 2008 Release must be understood with
reference to the warranty claim which Begley had filed with
defendants. In Begley's view, the warranty allowed him to
make a claim only on “failed portion[s] of the trim,
” and he believed that the 2008 Release merely resolved
his warranty claim to that extent. Doc. no. 27-1 at 7. For
that reason, he “interpreted the language [in the 2008
Release] as applying only to future claims relating to the
384 linear feet of trim that failed as of the date of the
Release.” Id. at 8. Begley asserts that his