United States District Court, N.D. Illinois, Eastern Division
DUNCAN PLACE OWNERS ASSOCIATION, on its own behalf and as Assignee of Association members, ., Plaintiffs,
DANZE, INC., f/k/a GLOBE UNION AMERICAN CORP., GLOBE UNION GROUP, INC., AND GLOBE UNION INDUSTRIAL CORP., Defendants.
MEMORANDUM OPINION AND ORDER
E. Chang United States District Judge
Place Owners Association (for convenience's sake, call it
Duncan Place) is a condominium association in the State of
Washington. The association and its individual condo owners
contend that faucets sold by Danze, Inc. have failed, causing
property damage throughout Duncan Place condos. R. 60, Second Am.
Compl. ¶ 46; R. 90, Pl.'s Resp. Br. at
According to Duncan Place, Danze has failed to repair or
replace the faucets as promised in its written warranty.
Second Am. Compl. ¶ 47. Danze previously moved to
dismiss Plaintiffs' second amended complaint, R. 61,
Def.'s Mot. Dismiss, which was granted in part and denied
in part. R. 74, 6/30/2016 Opinion and Order at 54. Only one
claim remains: Duncan Place's claim for breach of express
warranty against Danze. Now, Danze moves for summary judgment
on the breach of express warranty claim, claiming that Duncan
Place cannot show it is in privity with Danze or is a
third-party beneficiary to the faucet's express warranty.
R. 89, Def.'s Mot. Summ. J. ¶ 3. The Court agrees
and grants summary judgment.
deciding Danze's motion for summary judgment, the Court
views the evidence in the light most favorable to the
non-moving party. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). In April 2015,
Duncan Place and then-Plaintiff Phyllis Zisser filed a Class
Action complaint regarding the Danze faucets. R. 21, First
Am. Compl.; R. 89-2, Def.'s Statement of Facts (DSOF)
¶ 1; R. 90-1, Pl.'s Resp. to DSOF ¶ 1.
Danze's first motion to dismiss followed, and this Court
dismissed Duncan Place's breach of implied warranty
claims as untimely. R. 56, 9/15/2015 Opinion and Order at
Second Amended Complaint came in September 2015, which still
named Duncan Place and Zisser as plaintiffs, but also
included 41 individually identified condominium owners, as
well as an additional singular plaintiff, Daniel Donnelly.
Second Am. Compl. ¶¶ 6-9; DSOF ¶ 4; Pl.'s
Resp. to DSOF ¶ 4. Along with class-action allegations,
the Second Amended Complaint alleged six different claims for
relief, including breach of express warranty, breach of
warranty of merchantability, negligence, strict products
liability, unjust enrichment, and a violation of the Illinois
Consumer Fraud and Deceptive Business Practices Act. DSOF
¶ 5; Pl.'s Resp. to DSOF ¶ 5; Second Am.
Compl. ¶¶ 54, 71, 80, 91, 97-99, 106, 114.
Zisser was dismissed with prejudice, having accepted an Offer
of Judgment under Fed.R.Civ.P. 68. R. 70, Stip. of Dismissal;
R. 71, 3/29/16 Minute Entry; DSOF ¶ 8; Pl.'s Resp.
to DSOF ¶ 8. Then, Danze again moved to dismiss the
complaint on various grounds. Def.'s Mot. Dismiss; DSOF
¶ 6; Pl.'s Resp. to DSOF ¶ 6. This Court
dismissed the negligence, unjust enrichment, and strict
liability products claims as to all Plaintiffs, as well as
Donnelly's implied warranty of merchantability claim.
6/30/2016 Opinion and Order; DSOF ¶ 6; Pl.'s Resp.
to DSOF ¶ 6. The only surviving claims were for breach
of express warranty and Donnelly's Illinois consumer
fraud claim, each of which was subject to position statements
filed by the Plaintiffs to ensure that each party actually
relied on Danze's warranty representations. 6/30/2016
Opinion and Order at 54. After Plaintiffs were unable to
allege reliance on Danze's warranty for the individual
condo owners, those claims were dismissed. R. 84, 10/11/16
Minute Entry; DSOF ¶ 9; Pl.'s Resp. to DSOF ¶
9. Plaintiffs also voluntarily dismissed Donnelly. R. 85,
11/16/16 Minute Entry; DSOF ¶ 10; Pl.'s Resp. to
DSOF ¶ 10. Thus, in November 2016, only Duncan
Place's claim for breach of express warranty remained in
the prior opinion and orders describe the allegations in
detail, only those still relevant are set forth here. Danze
advertises and sells its faucets in the United States through
retailers, wholesalers, and the internet. Second Am. Compl.
¶¶ 12, 21. Danze equips each faucet it sells with a
written warranty, which says that “[a]ll parts of the
Danze faucet” will be “free from defects
in material and workmanship” for as long as the
consumer owns it. R. 89-1, Def.'s Br., Exh. B
¶¶ B, C.
Duncan Place was formed among condo owners in the Duncan
Place Condominium, another corporation, Duncan Place, LLC,
acted as the developer of the building. Pl.'s Resp. Br.
at 2. Duncan Place, LLC hired Kimat Duncan Place, LLC to
install the building's plumbing, including the
now-infamous Danze faucets. Def.'s Br., Exh. F; DSOF
¶ 26; Pl.'s Resp. to DSOF ¶ 26. In July 2008,
Kimat Duncan Place, LLC-acting as a subcontractor-bought 78
Danze faucets from a retailer, Keller Supply. R. 90-1,
Pl.'s Statement of Facts (PSOF) ¶ 31; R. 91-2,
Def.'s Resp. to PSOF ¶ 31; Def.'s Br., Exh. D,
Keller Invoices. Keller Supply had previously purchased those
same faucets directly from Danze. PSOF ¶ 32; Def.'s
Resp. to PSOF ¶ 31; Def.'s Br., Exh. B ¶ A.
Kimat Duncan Place then installed the Danze faucets in each
unit in Duncan Place. See Def.'s Br., Exh. F;
id. Exh. D. Construction Agreement at 1.
individual condominium units were sold, Duncan Place, LLC
ceded control of the condominium association and common areas
to Duncan Place. Def.'s Br., Exh. H at 16-20. Duncan
Place was incorporated in April 2009 as a Washington state
non-profit corporation. DSOF ¶ 27; Pl.'s Resp. to
DSOF ¶ 27; Def.'s Br., Exh. G. Duncan Place, LLC
contemplated the creation of an association made up of the
condo unit owners, and solidified Duncan Place Owners
Association's role in the Condominium Declarations signed
by each individual purchaser. Def.'s Br., Exh. H. §
13.1. The declaration sets out the powers of Duncan Place,
which include adopting regulations, contracting with other
entities, and regulating the repair and replacement of common
elements of the condominium building. Id. §
13.4. Initially, Duncan Place, LLC controlled which members
would comprise Duncan Place's leadership, and provided
for a transition period over which Duncan Place LLC would
relinquish its control as more time went by and units were
sold, until eventually Duncan Place's leadership and
members would be wholly controlled by the condo owners.
Id. §§ 14.1-14.2.
that background in mind, in this lawsuit Duncan Place's
breach of express warranty claim arises from purported
defects in the Danze faucets. Despite representing that the
faucets would be free from defects, Danze faucets potentially
suffer from a defective, steel-braided water supply hose made
with an “inferior low nickel stainless steel alloy,
” making each hose “susceptible to stress
corrosion cracking.” Second Am. Compl. ¶¶ 29,
31. As is wont to occur when defective hoses cannot withstand
plumbing needs, some of the Danze faucets installed in Duncan
Place condos corroded and failed, damaging the building,
increasing insurance premiums, requiring the payment of
deductible payouts, and causing the need for replacement
faucets. Id. ¶ 47. Now, on its own behalf as
the owners association for Duncan Place Condominiums, Duncan
Place seeks relief for Danze's failure to live up to its
warranty. After the dismissal of the other claims and
additional discovery, Danze now moves for summary judgment,
arguing that Duncan Place cannot show that it was in privity
with Danze or that it was an intended third-party beneficiary
of Danze's warranty. Def.'s Mot. Summ. J.
judgment must be granted “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A genuine issue of material fact exists
if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In
evaluating summary judgment motions, courts must view the
facts and draw reasonable inferences in the light most
favorable to the non-moving party. Scott v. Harris,
550 U.S. 372, 378 (2007). The Court may not weigh conflicting
evidence or make credibility determinations, Omnicare,
Inc. v. UnitedHealth Grp., Inc., 629 F.3d 697, 704 (7th
Cir. 2011), and must consider only evidence that can
“be presented in a form that would be admissible in
evidence.” Fed.R.Civ.P. 56(c)(2). The party seeking
summary judgment has the initial burden of showing that there
is no genuine dispute and that they are entitled to judgment
as a matter of law. Carmichael v. Village of
Palatine, 605 F.3d 451, 460 (7th Cir. 2010); see
also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);
Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir.
2008). If this burden is met, the adverse party must then
“set forth specific facts showing that there is a
genuine issue for trial.” Anderson, 477 U.S.
The Text of the Warranty
Washington law,  to establish an express warranty, a seller
must make an “affirmation of fact or promise”
that relates to or describes the product at issue, and that
representation must form “the basis of the
bargain.” Wash. Rev. Code Ann. § 62A.2-313 (West
2003); see also Cox v. Lewiston Grain Growers, Inc.,
936 P.2d 1191, 1198 (Wash. App. Ct. 1997). At its core, the
claim that Duncan Place asserts-and its own role in
litigating it-depends on the terms of the warranty itself.
Although no particular magic words are necessary to create an
express warranty, Hartman v. Barnes Grain & Feed
Co.,284 P. 754, 755-56 (Wash. 1930), the words used by
the seller are determinative as to how it applies. See
Fed. Signal Corp. v. Safety Factors, Inc.,886 P.2d ...