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Disher v. Tamko Building Products, Inc.

United States District Court, S.D. Illinois

February 15, 2018

RICHARD DISHER, ERIC KLINE, JOHN O'MALLEY and DIMITRI MISHUROV, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
TAMKO BUILDING PRODUCTS, INC., Defendant.

          MEMORANDUM AND ORDER

          STACI M. YANDLE, UNITED STATES DISTRICT JUDGE.

         Pending 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 its entirety.

         Background

         Plaintiff 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. 129-130).

         Disher 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).

         The 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.

         Pursuant 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).

         In 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. Id.

         After 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).

         In 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 ...


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