United States District Court, S.D. Illinois
RICHARD DISHER, ERIC KLINE, JOHN O'MALLEY and DIMITRI MISHUROV, on behalf of themselves and all others similarly situated, Plaintiffs,
TAMKO BUILDING PRODUCTS, INC., Defendant.
MEMORANDUM AND ORDER
M. YANDLE, UNITED STATES DISTRICT JUDGE.
before the Court is Defendant Tamko Building Products,
Inc.'s (“Tamko”) Motion for Summary Judgment
with Respect to the Claims of Plaintiff Richard Disher (Doc.
133). Plaintiff filed a response in opposition (Doc. 160).
For the following reasons, the motion is GRANTED in
Richard Disher purchased Tamko Heritage 30 Shingles in April
2005 from Fischer Lumber (Doc. 133-3, p. 86). At the time,
Fischer Lumber sold both Tamko and GAF shingles (Doc. 133-2,
p. 17). Disher purchased the shingles from Fischer Lumber at
the recommendation of Chris Nolan, the contractor he hired to
install the shingles on his roof (Doc. 133-3, pp. 116-117).
He purchased the shingles based on their color and because
they were architectural, which according to Disher, “is
supposed to be good.” Id., pp. 126-129. Prior
to purchasing the shingles, Disher observed “a big
sign, a sign with a symbol that says 30 year warranty.”
(Doc. 133-3, p. 88). He does not recall whether the sign
contained the word “limited” (Doc. 133-3, pp.
expected the shingles would be covered for 30 years.
Id. He did not inquire about the warranty at the
time he purchased the shingles (Doc. 133-3, p. 129). Rather,
he assumed that the warranty was a full replacement warranty
(including replacement shingles and the labor necessary to
install them) for 30 years (Doc. 133-3, pp. 104-105). Disher
does not believe that he was provided a copy of the Limited
Warranty before he purchased the shingles or at the time of
sale (Doc. 159-1, p. 38). At the relevant time, Fischer
Lumber did not routinely provide its customers with
warranties at the point of sale; it only provided customers
with warranties upon request (Doc. 159-1, pp. 65-66).
shingles came with a Limited Warranty that provided a remedy
for damages caused by manufacturing defects (Doc. 133-4). The
warranty provided, in relevant part:
Tamko Full Start Period: If, during the Full Start Period,
Shingles are determined to have manufacturing defects which
have directly caused leaks, Tamko will provide the Owner with
a Material Certificate for replacement shingles (or, at
Tamko's option, the Dollar Limit Per Square identified in
Table 1) and a Labor Payment Certificate that may be used to
pay the reasonable cost of installing replacement shingles,
according to the terms of this limited warranty. This is
Tamko's Maximum Liability during the Full Start Period.
After the Full Start Period: If, after the end of the Full
Start Period, Shingles are determined to have manufacturing
defects which have directly caused leaks, Tamko's
obligation is limited to providing the Owner with a Material
Certificate for replacement shingles or, at Tamko's
option, the Dollar Limit Per Square identified in Table 1.
The Dollar Limit Per Square and the quantity of replacement
shingles will be prorated over the life of this limited
warranty. This is Tamko's Maximum Liability after the
Full Start Period. Tamko is not responsible for the costs of
labor for installing replacement shingles after the Full
Start Period. Proration shall be determined by dividing the
number of months remaining in the Term by the total number of
months of the Term…
Full Start Period is defined that the initial period of the
Term during which Tamko's obligation is not prorated. The
length of the Full Start Period is listed in Table 1.
to Table 1 of the warranty, Disher's shingles were
subject to a “full start” period of five years
and a warranty term of 360 months (Doc. 133-4).
2013, after cleaning Disher's gutters, James Gold told
Disher there was a problem with his shingles and that he
should contact Tamko (Doc. 133-3, pp. 57-58). In March 2014,
Disher filed a warranty claim with Tamko for “massive
granular loss of shingles throughout the roof (Doc. 133-3, p.
68, Doc. 133-6). He indicated that the problem began on
October 15, 2013, and that his roof was not leaking.
reviewing Disher's warranty claim, and in accordance with
the terms of the Limited Warranty, Tamko provided him with a
Materials Certificate covering 15 squares (or 70%) of
replacement shingles (Doc. 133-3, p. 99). Tamko also offered
Disher $100 compensation to cover the costs for the samples
he submitted with his warranty claim. Id. at p. 70.
Disher rejected the offer (Doc. 159-1, p. 40).
January 2015, inspector Arthur Neumann inspected Disher's
home (Doc. 133-7). In his report, Neumann indicated that the
damage to the shingles was not consistent over the entire
roof, and that no apparent water damage could be attributed
to the roof or ...