Offer of 'permanent' protection is not warranty.

Byline: David Ziemer

A statement in a window catalog that, "all exterior wood is deep-treated to permanently protect against rot and decay" does not create a warranty for future performance that would toll the statute of limitations for an action based on the defectiveness of the windows, the Wisconsin Court of Appeals held on Aug. 29.

Impermanent Protection

Marvin Windows, Inc., is a manufacturer of windows. It treats the wood used in its windows with a preservative to prevent wood decaying fungi. In its advertisements, Marvin advertised that, "all exterior wood is deep-treated to permanently protect against rot and decay." Marvin sold its windows with a one-year warranty.

By 1990, Peter M. Selzer purchased a number of Marvin windows in constructing his home, and in 1997, he noticed wood rot in several of the frames. Over the course of time, the rot spread to the siding below a number of the windows.

Marvin inspected the windows, and offered Selzer a discount on new windows. Rejecting the offer, Selzer filed suit in January 2000, alleging a number of claims: breach of express and implied warranties, fraudulent misrepresentation under sec. 100.18, intentional misrepresentation, strict responsibility misrepresentation, and negligent misrepresentation.

Dane County Circuit Court Judge Patrick J. Fiedler granted summary judgment for Marvin on all the claims. Selzer appealed, and the court of appeals affirmed in a decision by Judge David G. Deininger.

Warranty

The court concluded that the representations by Marvin, and Selzer's reliance on them, were sufficient to support an express warranty claim. Nevertheless, the court concluded it was time-barred.

Under Sec. 402.102, a warranty action must be commenced within six years of accrual, but Selzer did not bring suit until almost 10 years after delivery. The court rejected Selzer's argument that the "future performance" exception of Sec. 402.725(2) applies.

Because no Wisconsin case has previously addressed the future performance exception, the court looked to other jurisdictions for guidance, and adopted the following "stringent standard" test:

"For such a warranty to exist, there must be specific reference to a future time in the warranty. The requirement of a specific reference to a future time is satisfied when a warranty guarantees a product for a particular number of years, or for a less precise, but still determinable period of time. (cites omitted)."

As examples of warranties that did...