IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF...

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

CHARLESTON DIVISION

IN RE: MI WINDOWS AND DOORS, INC. ) MDL NO: 2333

PRODUCTS LIABILITY LITIGATION ) C.A. No. 2:12-mn-00001-DCN

) ALL CASES

MASTER ADMINISTRATIVE CLASS ACTION COMPLAINT

Plaintiffs Nadine Johnson, Jennifer C. Zambriczki, David R. Van Such, Craig

Hildebrand, Joseph DeBlaker, Mike and Janeen Meifert, Manzoor and Sosi Wani, Timothy and

Johanna Nash, David Deem, John W. McCubbrey and Elizabeth D. McCubbrey, Daniel

Kennedy, Charles Bradley, Jennifer and Scott McGaffin, Stevenson T. Womack and any other

Homeowner Plaintiffs whose cases are subsequently transferred into MDL No. 2333

(collectively “Plaintiffs”), individually and on behalf themselves and all others similarly situated,

by their undersigned attorneys, upon personal knowledge as to themselves, upon information and

belief, and based upon the investigation of their Counsel as to the remaining allegations, allege

as follows:

INTRODUCTION

1. This is a class action asserting claims against MI Windows & Doors, Inc. (“MIWD”

or “Defendant”) for its liability in failing to adequately design, manufacture and distribute its

windows to homeowners across the Country.

2. At all times relevant hereto, MIWD was a designer, manufacturer, and supplier of

vinyl windows. In particular, MIWD designed, manufactured, and supplied vinyl windows which

relied upon adhesive-coated foam tape to prevent water intrusion through the glazing and other

sealant materials to prevent water intrusion through the sill joints.

2:12-mn-00001-DCN Date Filed 03/11/13 Entry Number 76 of 65

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3. MIWD marketed these vinyl windows under its 3500, 4300, and 8500 family lines,

including the 3350/9555 double hung vinyl window which is sold in conjunction with the

3500/8500 windows and which utilizes the 3500/8500 sash, and variations of model 3350/9555

(hereinafter collectively referred to as the “Windows”). Thus, the term “Windows” encompasses

the 3500 family lines, which includes models 3240, 3250, 3350, 3480/1480, 3500, 3540, 1280,

3580, 3280, but excludes the 3500 HP; the 4300 family lines, which includes models 4300, 4250,

and 4340; the 8500 family lines, which includes model numbers 8500, 8540, 1250, 8580, and

8880; and the 3500/8500 accessory product lines, which includes double hung window model

number 3350/9555 and related 9500 to 9900 models, including 9540 (direct set), 9555 (double

hung), 9600/9700 (stacked and/or mulled), 9660 (awning), 9770 (casement), and 9880/3480

(double slider), 9900 (basement), and 1451 (double hung).

4. The term “Windows” includes: new construction and replacement versions of all

Windows; single hung, double hung, fixed, slider, awning, casement, basement, specialty, and all

other styles of Windows; all frame versions, including fin, finless, flange, j-channel, brick mold,

non-brick mold, and all other frame variations of Windows; any renumbered model of the

foregoing models included in the definition of Windows, including state model numbers (e.g.

TX3250, the Texas version of the 3250); and stacked, mulled, continuous head, sill, continuous

jam, and all other variations of Windows. Specialty windows are hereby defined to include

picture, transom, eyebrow, geometric, custom, and any other shape.

5. For new construction, these windows are typically sold in a “glass package” for a

given house, which often include several of the foregoing models in a single residence. The

windows installed in Plaintiffs’ homes are all models included in the foregoing definition of


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Windows.

6. MIWD sold the Windows to the builders, contractors and suppliers who installed the

Windows in homes subsequently purchased by Plaintiffs and the Class members. In conjunction

with each sale, MIWD expressly extended a limited lifetime warranty to the original purchaser of

the home (and, for a limited period, to subsequent purchasers of the home) that the Windows

would be free from defects in materials or workmanship that substantially impair their operation

or performance.

7. MIWD also warranted, through labels affixed to each Window (“MIWD Label

Warranty”) that remained on the Window at the time of purchase of the home by Plaintiffs and

Class members, that the Windows were designed and constructed in conformance with industry

standards. However, as discussed herein, the Windows do not conform to MIWD’s express

representations and warranties.

8. At the time of sale, the Windows were not merchantable and not reasonably suited to

the use intended based on their defective design and manufacture by MIWD.

9. At the time of sale, the Windows contained defects that result in a loss of

seal allowing water to enter into the homes owned by Plaintiffs and the Class members, resulting

in the formation of mineral deposits and microbial growth at the location of the leaks, and

consequential damages to other property, including, without limitation, the adjoining finishes,

walls and floors of the homes. Furthermore, the Windows have accumulated mold and mildew

and have contaminated the airspace within the home. The defect substantially impairs the

effectiveness and performance of the Windows and renders the Windows unsuitable for the

purposes for which they were sold and warranted. The Windows also do not conform to the


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applicable building codes and standards.

10. As a result of the defects in the Windows, Plaintiffs and the Class

members have suffered damages by purchasing structures containing the Windows that they

would not otherwise have purchased had they known of the defects. Further, the value of their

homes has been diminished by the defective Windows, the defective Windows have caused

damage to other property in their homes; and, in some instances, Class members have been

forced to pay for installation of replacement windows by MIWD, which replacements are also

defective.

JURISDICTION AND VENUE

11. This Court has jurisdiction over the subject matter of this action pursuant

to 28 U.S.C. § 1332(d)(2) (diversity jurisdiction) and the Class Action Fairness Act, in that (i)

there is complete diversity (Plaintiffs are citizens of South Carolina, North Carolina, Wisconsin,

Illinois, Michigan, Ohio, New York, New Jersey and Kansas and MIWD is domiciled and

incorporated in California and otherwise maintains its principal place of business in

Pennsylvania), (ii) the amount in controversy exceeds $5,000,000.00 (Five Million Dollars)

exclusive of interests and costs, and (iii) there are 100 or more members of the proposed Classes.

12. Venue lies in this District, pursuant to 28 U.S.C. § 1391, because some of the

Plaintiffs reside in this Judicial District, and a substantial part of the events or omissions giving

rise to Plaintiffs’ claims occurred in this Judicial District. In addition, MIWD does business

and/or transacts business in this Judicial District, and therefore, is subject to personal jurisdiction

in this Judicial District and resides here for venue purposes.


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THE PARTIES

A. Named Plaintiffs

13. The term “Plaintiffs” includes the Named Plaintiffs in this litigation. The Named

Plaintiffs are purchasers and/or owners of the defective Windows. MIWD has failed or refused

to replace, properly repair, or provide Named Plaintiffs’ Windows with Windows that are not

defective or in accordance with MIWD’s express representations or warranties. Named Plaintiffs

have each suffered damages as a result of MIWD’s concealment, deceptive practices, breach of

warranties, and/or negligence. Among other things, Named Plaintiffs’ Windows are defective

because they allow water to intrude into Named Plaintiffs’ homes, permitting mold and mineral

growth. In addition, the water damages other property within Plaintiffs’ home such as personal

property, drywall, and interior finishes.

Named Plaintiff Nadine Johnson

14. In late 2005, Nadine Johnson (“Johnson”) purchased a new residence with a property

address of 329 Senneca River Drive, Summerville, South Carolina. Johnson’s home and the

homes throughout her subdivision contain Windows manufactured by MIWD. These Windows

have an inadequate weep system, have suffered a loss of seal, and have a lack of or loss of

sealant at joints, all of which have resulted in a manifestation of mineral deposits and mold, and

permitted moisture or water intrusion into Johnson’s home and have continuously and repeatedly

caused damage in and around the Windows. Specifically, in addition to the mold contaminating

her living space due to the defective Windows, Johnson has water damaged walls and damaged

window ledges, and damage to other property. Accordingly, Johnson must replace her Windows

as well as repair the other property damage at a significant cost to her. Upon discovery of


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problems with the Windows, Plaintiff Johnson attempted to notify the supplier by calling the

number provided by the builder, Lakes of Summerville, at the time the home was purchased.

The phone number was disconnected. All South Carolina Plaintiffs have put MIWD on notice of

their individual claims and the class claim by the service of this suit; additionally, MIWD was

already on notice of this class and type of claims by the other notices described further in this

Master Complaint.

Named Plaintiff Jennifer C. Zambriczki

15. In mid-2006, Jennifer C. Zambriczki (“Zambriczki”) purchased a new residence with

a property address of 4832 Cane Pole Lane, Summerville, South Carolina. Zambriczki’s home

contains Windows manufactured by MIWD. These Windows have an inadequate weep system,

have suffered a loss of seal, and have a lack of or loss of sealant at joints, all of which have

resulted in a manifestation of mineral deposits and mold, permitted moisture or water intrusion

into Johnson’s home, contaminated the living space, and is believed to have caused latent

damage to other property. Accordingly, Zambriczki must replace her Windows as well as repair

the other property damage at a significant cost to her. MIWD was put on notice of the

Zambriczki claim prior to her being joined as a Plaintiff.

Named Plaintiff David R. Van Such

16. In mid-2005, David R. Van Such (“Van Such”) purchased a new residence with a

property address of 214 Savannah River Drive, Summerville, South Carolina. Van Such’s home

and the homes throughout his subdivision contain Windows manufactured by MIWD. These

Windows have an inadequate weep system, have suffered a loss of seal, and have a lack of or

loss of sealant at joints, all of which have resulted in a manifestation of mineral deposits and


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mold, permitted moisture or water intrusion into Van Such’s home, contaminated the living

space, and is believed to have caused latent damage to other property. Accordingly, Van Such

must replace his Windows as well as repair the other property damage at a significant cost to

him. MIWD was put on notice of the Van Such claim prior to him being joined as a Plaintiff.

Named Plaintiff Joseph DeBlaker

17. Plaintiff Joseph DeBlaker (“DeBlaker”) is and, at all relevant times hereto, has been a

citizen and resident of Mecklenburg County, North Carolina. Specifically, DeBlaker resides at

13641 Coram Place, Charlotte, NC 28213. DeBlaker’s home contains Windows manufactured by

MIWD. These Windows suffered a loss of seal, began to exhibit mineral deposits and mold, and

began to leak into DeBlaker’s home causing damage to other personal property below the

Window as well as the interior finishes. Accordingly, DeBlaker must replace his Windows at

significant cost to him. DeBlaker is the third owner of his home. The terms of MIWD’s express

warranty provide coverage only to first and second homeowners. Accordingly, DeBlaker brings

his claims under negligence and North Carolina Unfair and Deceptive Trade Practices Act and

seeks declaratory relief.

Named Plaintiff Craig Hildebrand

18. Craig Hildebrand (“Hildebrand”) is and was, at all relevant times hereto, a resident

and citizen of the State of New York. Specifically, Hildebrand owns a home at 126 Churchill

Avenue, Staten Island, New York 10309. Hildebrand purchased the home in August 2009 and is

the second owner. After taking possession of the home, Hildebrand replaced the carpet with

wood flooring in three of the bedrooms, re-tiled the kitchen floor and backsplash and remodeled

other areas in the home. Hildebrand’s home contains Windows manufactured by MIWD. These


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Windows suffered a loss of seal, began to exhibit mineral deposits and mold, causing a

breakdown in the structural integrity of the Windows and seal which allowed water to leak into

Hildebrand’s home, causing damage to other property within the home, including but not limited

to damage to the tile in the kitchen and wood flooring in the bedrooms which was not originally

a part of the home which he purchased. Furthermore, the Windows have accumulated mold and

mildew and have contaminated the airspace within the home. Accordingly, Hildebrand must

replace his defective Windows at significant cost to him. Hildebrand contacted MIWD about the

damage from their defective Windows but was told he was not covered by the warranty because

he was not the original owner of the home. Adequate notice was given to MIWD regarding

Hildebrand’s claim.

Named Plaintiffs Mike and Janeen Meifert

19. Plaintiffs Mike Meifert and Janeen Meifert (“the Meiferts”) are and, at all relevant

times hereto, have been citizens and residents of Washington County, Wisconsin. Specifically,

the Meiferts reside at 2605 Upper Forest Lane, West Bend, Wisconsin 53090. The Meiferts’

home contains Windows manufactured by MIWD. These Windows have an inadequate weep

system, have suffered a loss of seal, and have a lack of or loss of sealant at joints, all of which

have resulted in a manifestation of mineral deposits and mold, and permitted moisture or water

intrusion into the Meiferts’ home and have continuously and repeatedly caused damage to other

property below and around the Windows. Further, the Windows also fog up. Accordingly, the

Meiferts must replace their Windows at a significant cost.

20. After reviewing MIWD’s warranty on its website stating that the windows were


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warranted for a period of ten years, the Meiferts filed warranty claims with MIWD about the

damage from the Windows, but were told that they were not covered by the warranty because

they were a subsequent owner of the home. However, the Meiferts purchased their home directly

from the builder of the home, and were the first owners to live in the home. Despite providing

this information to MIWD, MIWD refused to honor its warranty. Further, the Meiferts would not

have purchased their home if they were not provided with a warranty, and the warranty, at all

times was the basis of the bargain between the parties.

Named Plaintiff Daniel Kennedy

21. Plaintiff Daniel Kennedy (“Kennedy”) is and, at all relevant times hereto, has been a

citizen and resident of Will County, Illinois. Specifically, Kennedy resides at 2117 Stafford

Court, Plainfield, Illinois 60586. Kennedy’s home was built in 2003. Kennedy’s home contains

Windows manufactured by MIWD. These Windows have an inadequate weep system, have

suffered a loss of seal, and have a lack of or loss of sealant at joints, all of which have resulted in

a manifestation of mineral deposits and mold, and permitted moisture or water intrusion into the

habitable living space of his home and have continuously and repeatedly caused damage in and

around the Windows. Accordingly, Kennedy must replace his Windows as well as repair the

other property damage at a significant cost to him. Kennedy contacted MIWD about the damage

from his Windows, but was told he was not covered by the warranty because he was a

subsequent owner of his home.

Named Plaintiff Charles Bradley

22. Plaintiff Charles Bradley (“Bradley”) is and, at all relevant times hereto, a resident of


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Pope County, Illinois. Specifically, Plaintiff Bradley resides at 275 Henry Hicks Road in Herod,

Illinois 62947. Bradley’s home was manufactured in 2009. Plaintiff’s home contains Windows

manufactured by MIWD. These Windows have an inadequate weep system, have suffered a loss

of seal, and have a lack of or loss of sealant at joints, all of which have resulted in a

manifestation of mineral deposits and mold, and permitted moisture or water intrusion into the

habitable living space of his home and have continuously and repeatedly caused damage in and

around the Windows. Bradley timely submitted two warranty claims to MIWD. With respect to

the first warranty claim, MIWD replaced five windows “free of charge” to Bradley. With

respect to the second warranty claim, MIWD replaced three windows; but, Bradley was charged

for shipping the windows to him and Bradley also was required to pay for the cost of installing

these three windows. Thus, MIWD has not complied with its warranty.

Named Plaintiff Jennifer and Scott McGaffin

23. Plaintiffs Jennifer and Scott McGaffin (“the McGaffins”) were, at all relevant times

hereto, residents and citizens of the State of Kansas. Specifically, the McGaffins own a home at

25710 S. Haven Road, Mount Hope, Kansas 67108. The McGaffins’ home was built in 2008 and

contains Windows manufactured by MIWD. These Windows suffered premature failure, began

to exhibit mineral deposits and mold, and allowed water to leak into the McGaffins’ home,

causing damage to other property within the home. Accordingly, the McGaffins must replace

their defective Windows and repair related damage at significant cost to them. The McGaffins

contacted MIWD about the damage from their defective Windows pursuant to their warranty, but

were told that the Windows were not installed correctly. Accordingly, MIWD has not complied

with its warranty.


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Named Plaintiffs Manzoor and Sozi Wani

24. Plaintiffs Manzoor Ahmad Wani and Sozi Wani (“the Wanis”) are and, at all relevant

times hereto, have been citizens and residents of Franklin County, Ohio. Specifically, the Wanis

reside at 6301 Parkmeadow Lane, Hilliard, Ohio 43026. The Wanis’ home contains Windows

manufactured by MIWD. These Windows suffered a loss of seal, began to exhibit mineral

deposits and mold, and began to leak into the Wanis home causing damage to other property

below the Windows. Accordingly, the Wanis must replace their Windows at significant cost to

them. The Wanis contacted MIWD about the damage from their Windows but were told they

were not covered by the warranty because they were the second owners of their home.

Named Plaintiffs Timothy and Johanna Nash

25. Plaintiffs Timothy and Johanna Nash (“the Nashs”) are and were, at all relevant times

hereto, citizens and residents of Hamilton County, Ohio. Specifically, the Nashs reside at 353

Rawling Drive, Harrison, Ohio 45030. The Nashs home contains Windows manufactured by

MIWD. These Windows suffered a loss of seal, began to exhibit mineral deposits and mold,

causing a breakdown in the structural integrity of the Windows and seal which allowed water to

leak into the Nashs’ home, causing damage to other property within the home. The Nashs are

the original owners of their home that incorporated MIWD’s Windows. Adequate notice has

been given to MIWD regarding the defects in its Windows.

Named Plaintiff Stevenson T. Womack

26. Plaintiff Stevenson T. Womack (“Womack”) is and, at all relevant times hereto, has

been a citizen and resident of New Jersey. Specifically, Womack resides in the Saybrooke Place

Subdivision at 94 Hillside Lane, Mt. Laurel, New Jersey 08054. Womack’s home and the homes


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throughout his subdivision contain Windows manufactured by MIWD. These Windows have an

inadequate weep system, have suffered a loss of seal, and have a lack of or loss of sealant at

joints, all of which have resulted in a manifestation of mineral deposits and mold, and permitted

moisture or water intrusion into Womack’s home and have continuously and repeatedly caused

damage in and around the Windows. Specifically, in addition to the mold permeating his home

due to the defective Windows, Womack has water stained damaged walls and damaged window

ledges as well as water stains on his floors and other property. Accordingly, Womack must

replace his Windows as well as repair the other property damage at a significant cost to him.

Womack contacted MIWD and attempted to make a warranty claim due to the damage from his

Windows, but was told he was not covered by the warranty because he was a subsequent owner

of his home.

Named Plaintiff David Deem

27. Plaintiff David Deem (“Deem”) is and was, at all relevant times hereto, a resident and

citizen of the State of Michigan. Specifically, Deem owns a home at 1588 Dunston Road,

Canton, Michigan 48188. Deem’s home contains Windows manufactured by MIWD.. These

Windows suffered a loss of seal, began to exhibit mineral deposits and mold, causing a

breakdown in the structural integrity of the Windows and seal which allowed water to leak into

Deem’s home, causing damage to other personal property within the home. Accordingly, Deem

must replace his defective Windows at significant cost to him. Deem contacted MIWD about the

damage from their defective Windows but was told he was not covered by the warranty because

he was not the original owner of the home. Adequate notice was given to MIWD. Deem is not

the original purchaser of the house on Dunston Road.


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Named Plaintiffs John and Elizabeth McCubbrey

28. Plaintiffs John W. McCubbrey and Elizabeth D. McCubbrey (“the McCubbreys”) are

and were, at all relevant times hereto, a resident and citizen of the State of Michigan.

Specifically, The McCubbrey’s own a home at 6027 Swan Lake Drive Romulus, Michigan

48174. The McCubbrey’s home contains Windows manufactured by MIWD. These Windows

suffered a loss of seal, began to exhibit mineral deposits and mold, causing a breakdown in the

structural integrity of the Windows and seal which allowed water to leak into the McCubbrey’s

home, causing damage to other personal property within the home. Accordingly, the

McCubbrey’s must replace their defective Windows at significant cost to them. Adequate notice

was given to MIWD. Plaintiffs McCubbrey are the original purchasers of the house on Swan

Lake Drive.

B. Defendant MIWD

29. MIWD is a California corporation with its principal place of business located in

Pennsylvania. MIWD is one of the largest manufacturers of vinyl, aluminum and cellular

windows and doors in the country. MIWD designed, tested, manufactured, marketed, advertised,

warranted and sold the Windows throughout the United States.

FACTUAL ALLEGATIONS

a. Background and Defects

30. At all times relevant herein, MIWD was engaged in the marketing, sale, and delivery

of windows and window products throughout the United States.

31. At all times relevant herein, MIWD was a window designer, manufacturer, and

supplier of vinyl windows. In particular, MIWD designed, manufactured, and supplied Windows


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which relied upon adhesive-coated foam tape to prevent water intrusion through the glazing, and

other sealant materials to prevent water intrusion through the sill joints.

32. At the time of sale, MIWD warranted that each Window was fit for the ordinary

purpose for which such goods were used and was free from defects in materials and

workmanship.

33. In addition, MIWD represented and warranted that each Window conformed to the

applicable Building Codes for each state and industry standards.

34. These representations, described herein, became part of the basis of the bargain when

Named Plaintiffs, Plaintiffs’ Builders, Class Members and/or Class Members’ builders purchased

the Windows.

35. In addition, these representations became part of the basis of the bargain when

Named Plaintiffs and/or Class Members purchased the homes with MIWD’s express

representations concerning the quality of the Windows.

36. However, the Windows do not conform to these express representations and

warranties, and, as alleged herein, MIWD breached its express warranties and representations

concerning these Windows.

37. The Windows are defective and fail to perform both at Named Plaintiffs’ residences

and at Class members’ residences by permitting leakage resulting in the formation of mineral

deposits, algae, and microbial growth at the location of the leaks, and consequential damages to

property other than the Windows, including, without limitation, the adjoining finishes and walls

of the residences as well as other personal property within the homes. Further, the mold and

mildew contaminate the habitable living space of the home.


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38. The Windows are defective as designed and fail to perform both at the Named

Plaintiff’s residences and at Class members’ residences in that the Windows rely upon other

sealant materials in or over sill joints to prevent the intrusion of water. However, the resulting

joints are incapable of preventing water intrusion over the long term.

39. The Windows are defective and fail to perform both at the Plaintiffs’ residences and

at class members’ residences in that the weep system is unable to effectively discharge the water

which gets into the windows, resulting in water penetration to the interior of the residences

damaging adjoining finishes and walls.

40. The Windows are defective and fail to perform both at the Plaintiffs’ residences and

at class members’ residences in that the Windows rely upon foam tape between the glass and the

vinyl to prevent the intrusion of water. However, MIWD fails to install the foam tape in

sufficient compression as required or recommended by the sealant tape manufacturer, which

results in premature foam tape performance failure; and welded joints and other factors impede

the foam tape’s performance.

41. The Windows suffer from an additional product deficiency when put to their normal

use and application because the depth of the product is insufficient to fill the typical depth of the

wall openings into which the windows are placed. Therefore, many of the Windows are sold by

Defendant MI with “jamb extensions” attached to the windows and/or the installer is permitted to

attach his own jamb extensions to the windows. A jamb extension is the wood or composite

wood trim which covers up the remaining exposed rough opening into which the window is

placed. MIWD fastens the jamb extensions to the vinyl windows with screws which pierce the

sill frame, and other frame members. The screw holes provide an avenue for water penetration


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into the structure, either immediately or upon prolonged screw exposure to moisture, resulting in

corrosion. Further, the screws impede the operation of the sash, accelerating the failure of the

foam tape and joints.

42. MIWD does not test the long-term performance of the Windows and does not

adequately test or check the performance of the Window components. Or, if it does test the long-

term performance of the Windows, MIWD conceals this information from all purchasers and

homeowners especially Named Plaintiffs’ builders and Class Members’ builders.

43. MIWD has failed to warn purchasers, builders, installers, homeowners and/or users of

the aforedescribed risks of failure.

44. Because the Windows permit water intrusion, they violate building code and industry

standards.

45. Operation of the Windows during normal use accelerates the failure of the Windows.

46. The defects and deficiencies set forth herein exist at the time the Windows leave the

factory. Failure may occur immediately upon installation or may occur after repeated pressure is

applied to the product during storms, thermal cycles or usage.

47. The defects and deficiencies are due to fundamental design, engineering, and

manufacturing errors well within MIWD’s area of expertise.

48. The Windows have been shown to be defective as above described in a number of

residences throughout the United States in addition to the Plaintiffs’ residences.

49. MIWD has been put on notice of the widespread defects in its products throughout

the United States by a number of homeowners.

50. Despite knowing of the defects described herein, MIWD has not notified all


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purchasers, builders and/or homeowners with the Windows of the defect or provided uniform

relief.

51. Homeowners with the Windows across the United States have suffered consequential

damages similar to the Named Plaintiffs’.

52. Other members of the putative class have previously put MIWD on notice of the non-

performing condition of the Windows.

53. Homeowners across the country have also put MIWD on notice of the defective

nature of the Windows by virtue of thousands of warranty claims and consumer complaints.

54. Homeowners in other states across the country have put MIWD on notice of

the defective nature of the Windows by virtue of a number of class actions.

55. MIWD knew or should have known that the defects were present at the time

the products left its control, not only because of its expertise and testing, but also because of the

notices of defects that it was receiving from the field.

b. MIWD’s Warranty

56. The purchase of MIWD’s windows includes a written express warranty which

forms part of the basis of the bargain between MIWD and the purchaser at the time of the sale.

Further, MIWD expressly and implicitly represents to the public that the warranty is an integral

part of the product being sold. The written warranties expressly apply to the (original) owners of

the homes containing the Windows, yet MIWD attempts to disclaim its warranty by asserting

that it only has to comply with its warranty if it was a part of the “basis of the bargain” between

the parties.

57. MIWD ships a “Limited Manufacturers’ Warranty”, “Limited Lifetime Customer


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Assurance Warranty”, and/or “Limited Lifetime Warranty” (collectively the “Warranties”) with

its Windows. Attached as exhibits A, B, C, D and E.

58. MIWD represents on its website, www.miwd.com, that “MI Windows and

Doors, Inc. stands behind its products with a Limited Lifetime Customer Assurance Warranty. If

you have a problem with your windows or doors you can review your warranty below.” A copy

of Defendant MI’s written warranty, effective January 1, 2010, is found at the bottom of the page

and is attached hereto as Exhibit F.

59. In addition, as discussed herein, MIWD has made additional representations,

expressly and impliedly, through its website, brochures, marketing materials, and representatives

that the Windows are suitable and free from defects. These representations were intended to and

likely did affect the market by inducing builders, contractors, suppliers, and others to purchase

the windows which became, at all times, the basis of the bargain between the parties.

60. Upon information and belief, the warranty dated January 1, 2005 warranty is

applicable to Johnson, Zambriczki, and Van Such and has been acknowledged via letters from

MIWD’s counsel to Plaintiffs’ counsel on October 28, 2011 and January 7, 2013.

61. Plaintiffs’ purchase agreements for the sale of each of their homes contain provisions

transferring all manufacturers’ warranties to Plaintiffs as the purchaser of their respective homes.

The typical purchase agreement for the sale of class members’ homes likely contains the same or

similar provision transferring manufacturers’ warranties to them at the time of purchase. The

transfer of the manufacturers’ warranties, which would include the window warranty, forms part

of the basis of the bargain at the time Plaintiffs purchase the homes.

62. Even where a manufacturer warranty transfer provision is not present, the average


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homeowner expects at the time of purchase, his or her home comes with manufacturers’

warranties, including a window warranty against defects and would not purchase the home if

they did not receive all manufacturer’s warranties.

63. However, despite being assigned all manufacturers’ warranties with the purchase of

the home from the builder, the homeowners generally do not receive printed copies of the

Warranties and are not on notice of their limitations. Further, MIWD’s purported warranties

excludes homeowners who were not the initial purchasers of the homes.

64. Further, even when Class members submit warranty claims, MIWD fails to

adequately respond to the warranty requests or MIWD asserts that it does not have to comply

with the warranty because the Windows were installed incorrectly.

65. MIWD also does not provide or offer free skilled labor as stated in some of its

warranties and charges people for shipping the windows.

66. In addition, despite making specific representations regarding the applicable building

codes and standards to which the Windows comply once installed in a home, MIWD asserts that

its express representations do not extend to subsequent purchasers. However, MIWD’s position

is unconscionable because MIWD knows that most homeowners, despite not being the initial

purchaser of the home in which the Windows are installed, expect the Windows to conform to all

applicable building codes and industry standards. Further, the stickers, which are attached to the

Windows, provide express representations and warranties regarding the alleged quality of the

Windows as discussed herein.

67. In addition, MIWD’s warranties fail of their essential purpose because they only

agree to provide additional defective windows.


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68. MIWD’s shipping of the Windows with prior knowledge of the defects or with

negligent or reckless disregard of the presence of defects constituted a breach of its express

warranty, makes the limitations of the express warranty (described below) unconscionable in all

respects, and therefore void ab initio. Further, warranties do not adequately disclaim the implied

warranties of fitness for a particular purpose or merchantability.

69. In addition, Plaintiffs and Class Members, through Plaintiffs’ builders and through

Class Members’ builders, relied on MIWD’s published specifications and advertisements

regarding the quality of the Windows.

70. While MIWD only publishes one warranty on its website, MIWD asserts the various

different warranties applies depending upon the time that the Windows were purchased.

Therefore, Plaintiffs and Class Members often do not know which warranty applies.

71. The following are limitations which are contained on MIWD’s various written

warranties:

a) MIWD purports to limit its responsibility to providing a replacement

window and shipped at the homeowner’s expense;

b) the warranty excludes the labor and other costs associated with removing

the defective window from the structure and shipping it to MIWD;

c) the warranty requires the homeowner to remove and ship the window to

MIWD prior to MIWD’s making a determination as to whether it is a

warrantable defect;

d) the warranty excludes the labor and installation associated with installing

the replacement window;


21

e) the warranty typically only applies to the initial purchaser;

f) the warranty excludes non-resident owners;

g) the warranty may only be enforced by the “original consumer purchaser”

unless the home is transferred within the first five years;

h) the warranty purports to exclude consequential damages and loss of use;

and

i) while not adequately conspicuous, the warranty purports to disclaim

implied warranties.

72. The above-described limitations on the express warranties are unconscionable under

all circumstances and are therefore unenforceable.

73. The warranty is not a negotiated contract and is so one-sided that no reasonable

person would ever knowingly agree to its terms if properly disclosed.

74. As discussed herein, MIWD has engaged in a pattern and practice of failing to honor

or discouraging warranty claims.

75. One such method of thwarting warranty claims is a pattern and practice of

MIWD’s refusing to address the class member’s defects unless the class member first agrees to

pay a monetary fee if their claim is denied.

76. On the occasions that MIWD acts on the class members’ reports of non-performance,

the MIWD engages in a pattern and practice of applying a temporary fix to the product, denying

the defect, and billing the class member (or his or her builder or supplier) for the denied claim.

77. Moreover, during contact with the class members, MIWD conceals its knowledge of

repeated product defects in the Windows in the class members’ residences.


22

78. The above-described pattern and practice by Defendant MI has the effect of

discouraging defect claims by class members.

79. As MIWD has known of its window defects and has failed to timely honor its

warranty, the warranty has failed of its essential purpose and the limitations therein are null and

void.

80. Plaintiffs and class members have been proximately damaged by MIWD’s above-

described defects and conduct.

81. Plaintiffs and class members have otherwise not received the value for which their

builders or contractors bargained at the time the windows were purchased or transferred to the

homeowners.

82. Plaintiffs and Class Members have not received the value for which they or their

builder bargained when the Windows were purchased. There is a difference in value between the

Windows as warranted and the Windows containing the defect coupled with an ineffective

warranty.

CLASS ACTION ALLEGATIONS

83. Plaintiffs bring this action individually and as representative of all those similarly

situated pursuant to Rule 23, F.R.C.P. on behalf of the classes (“the Classes”). The Classes are

defined as follows:

South Carolina-only Class: All persons and entities that own structures located within the State of South Carolina in which MIWD’s Windows are installed. Wisconsin-only Class: All persons and entities that own a structure located within the State of Wisconsin in which MIWD’s Windows are installed.


23

North Carolina-only Class: All persons and entities that own a structure located within the State of North Carolina in which MIWD’s Windows are installed.

Ohio-only Class: All persons and entities that own a structure located within the State of Ohio in which MIWD’s in which MIWD’s Windows are installed.

New York-only Class: All individuals and entities that own a structure in the State of New York in which MIWD’s Windows are installed.

Illinois-only Class: All persons and entities that own a structure located within the State of Illinois in which MIWD’s Windows are installed.

Kansas-only Class: All persons and entities that own a structure located within the State of Kansas in which MIWD’s Windows are installed.

New Jersey-only Class: All individuals and entities that own a structure in the State of New Jersey in which MIWD’s Windows are installed.

Michigan-only Class: All persons and entities that own a structure located within the State of Michigan in which MIWD’s Windows are installed.

84. This class excludes:

a) employees of the MIWD; and b) those persons who have released the MIWD or are

currently in litigation with MIWD.

85. Plaintiffs propose that the class be divided into subclasses if and as

necessary to align class interests.

86. Plaintiffs are each members of the class they seek to represent. The interests of

Plaintiffs are coincident with and non-antagonistic to those other members of the class they seek

to represent.


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87. Plaintiffs’ claims are typical of the claims of the other class members and Plaintiffs

will fairly and adequately represent the interests of the members of the class.

88. Plaintiffs have retained counsel experienced and competent in construction litigation,

product liability litigation, complex litigation, and consumer class actions.

89. The class members are so numerous that joinder of all members is impractical. The

exact number of Class Members in each Class is not presently known, but it is believed to

comprise of potentially thousands or tens of thousands of members in each class, making joinder

impractical. The proposed Classes are easily ascertainable, through MIWD’s records, and/or

through identification of MIWD’s stickers on their Windows. The number of Class Members in

each Class can also be determined through discovery.

90. The claims of the Plaintiffs and the member of each class involve common questions

of law and fact, including but not limited to:

a) whether the Windows are defective; b) whether the MIWD was negligent in its design and manufacture of the Windows; c) whether MIWD knew or should have known about the defective condition of the Windows; d) whether MIWD concealed and/or failed to disclose the defective condition of the Windows to consumers; e) whether MIWD breached its express and implied warranties; f) whether the Plaintiffs are entitled to prejudgment interest, attorneys fees, and costs from the MIWD; and

g) whether MIWD’s conduct was grossly negligent, reckless, willful, wanton, intentional, fraudulent, or the like, entitling Plaintiffs to statutory or punitive damages from MIWD;


25

h) Whether the defective windows caused the damages to Plaintiffs and other members of the Classes;

i) Whether Plaintiffs and the Classes are entitled to replacement of their

defective Windows with non-defective Windows;

j) Whether Plaintiffs and the Classes are entitled to restitution and/or

disgorgement;

k) Whether Plaintiffs and the Classes are entitled to compensatory damages,

including, among other things: (1) compensation for all out-of-pocket

monies expended by members of the Classes for replacement of Windows

and/or installation costs as well as repair/replacement of other property

damage; (2) the failure of consideration in connection with and/or

difference in value arising out of the variance between the Windows as

warranted and the Windows containing the defects;

l) Whether MIWD knew or became aware that its Windows were defective,

yet continued to manufacture, distribute and sell the Windows without: (1)

informing consumers, purchasers, builders and/or homeowners of the

material defects; (2) recalling the defective Windows; or (3) otherwise

repairing the defective Windows that had already been purchased; and,

instead engaged in an unfair practice of concealment, suppression or

omission of the material defects; and

m) Whether MIWD should be declared financially responsible for notifying

all class members of the defective nature of the Windows and to pay the

full costs and expenses of repair and replacement windows.

91. Typicality: Plaintiffs’ claims are typical of the claims of the members of the Classes,

as all such claims arise out of MIWD’s conduct in designing, manufacturing, marketing,

advertising, warranting and selling the defective Windows, MIWD’s conduct in concealing the

defects in the Windows, and Plaintiffs and Class Members purchasing homes with the defective

Windows.

92. Adequate Representation: Plaintiffs will fairly and adequately protect the interests of

the members of the Classes and have no interests antagonistic to those of the Classes. Plaintiffs

have retained counsel experienced in the prosecution of complex class actions, including


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consumer class actions involving product liability and product design defects.

93. Predominance and Superiority: This class action is appropriate for certification

because questions of law and fact common to the members of the Classes predominate over

questions affecting only individual members, and a Class action is superior to other available

methods for the fair and efficient adjudication of this controversy, since individual joinder of all

members of the Classes is impracticable. Should individual Class Members be required to bring

separate actions, this Court and Courts throughout the various states would be confronted with a

multiplicity of lawsuits burdening the court system while also creating the risk of inconsistent

rulings and contradictory judgments. In contrast to proceeding on a case-by-case basis, in which

inconsistent results will magnify the delay and expense to all parties and the court system, this

class action presents far fewer management difficulties while providing unitary adjudication,

economies of scale and comprehensive supervision by a single Court.

94. MIWD has acted on grounds generally applicable to the Classes. Class certification

is appropriate under all applicable law because MIWD engaged in a uniform and common

practice. All class members have the same legal right to and interest in redress for damages

associated with the defective Windows.

95. Plaintiffs and the class envision no unusual difficulty in the management of this

action as a class action.

96. The amount of money at stake for each member is not sufficient for each member to

hire their own counsel and experts and to bring their own action.

97. The foregoing water intrusion constitutes “occurrences” resulting in “property


27

damage” to property other than Defendant MI’s “product” as those are terms commonly defined

and used in the typical commercial general liability insurance policy.

98. All conditions precedent for filing this Complaint have been satisfied. This

Complaint has been filed prior to the expiration of any applicable statues of limitations or

statutes of repose.

ESTOPPEL FROM PLEADING AND TOLLING OF

APPLICABLE STATUTES OF LIMITATIONS

99. MIWD is estopped from relying on any statutes of limitation or repose by virtue

of its acts of fraudulent concealment. Upon information and belief, MIWD has known of the

defects in the Windows for years and has concealed from owners of the Windows and/or failed

to alert the owners of the defective nature of the Windows.

100. MIWD had a duty to inform Plaintiffs and Class of the defects described herein,

which it knew or should have known. Notwithstanding its duty, MIWD never disclosed the

defects to Plaintiffs, Plaintiffs’ builder, Class Members and/or Class Member’s builders.

101. Despite exercising reasonable diligence, Plaintiffs and Class Members could not

have discovered the defects within the Windows.

102. Given MIWD’s failure to disclose this non-public information about the defective

nature of the Windows – information over which it had exclusive control – and because Plaintiffs

and Class Members therefore could not reasonably have known that the Windows were

defective, MIWD is estopped from relying on any statutes of limitations or repose that might

otherwise be applicable to the claims asserted herein.


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CAUSES OF ACTION

COUNT ONE

BREACH OF EXPRESS WARRANTY

(On Behalf of Class Members Represented by Plaintiffs Johnson, Zambriczki, Van Such,

Hildebrand, Deem, Wani, Nash, Meifert, McGaffin, Womack, McCubbreys, Bradley and

Kennedy)

103. Plaintiffs individually and on behalf of all others similarly situated, adopt and

incorporate by reference all allegations contained in all of the preceding paragraphs of this

Complaint as though fully set forth herein.

104. After putting their Windows into the stream of commerce, MIWD expressly

represented and warranted that the Windows were appropriate for their intended use and were

free from defects.

105. MIWD entered into contracts with retailers, Plaintiffs’ Builders, Class Members’

Builders, suppliers and/or contractors to sell its Windows that were to be installed at Plaintiffs’

and the Class members’ properties.

106. Plaintiffs and Class Members were intended third party beneficiaries of the

contracts between MIWD and their respective Builders.

107. MIWD’s express and written warranties, and representations are applicable to the

Windows installed in Plaintiffs’ homes.

108. MIWD expressly represented and warranted that the Windows were appropriate

for their intended use and were free from defects.

109. MIWD expressly represented that its warranties extended to the initial

homeowner whose home contains the Windows.

110. MIWD also expressly represented that the Windows conform to all


29

applicable building codes and industry standards through its representations and stickers affixed

to each Window.

111. MIWD has made other representations, as described above, through its

website, brochures, marketing materials, and representatives that the Windows are free from

defects.

112. The representations and warranties formed part of the basis of the bargain

between MIWD and the purchasers of the Windows, at the time of the sale.

113. These representations, described herein, became part of the basis of the bargain

when Plaintiffs, Plaintiffs’ builders, Class Members and/or Class Members’ builders purchased

the Windows and/or purchased the homes containing the Windows.

114. In addition, these representations became part of the basis of the bargain when

Plaintiffs and/or Class Members purchased the homes with MIWD’s express representations

concerning the standards to which the Windows conformed because the labels were on the

Windows at the time of purchase, and all manufacturers warranties were assigned to Plaintiffs.

115. The purchase agreements for the sale of Plaintiffs’ homes contained provisions

transferring the manufacturers’ warranties, including window warranties. Such provisions are

valid transfers, and the transferred warranties formed part of the basis of the bargain at the time

the homes were purchased by Plaintiffs.

116. Further, Plaintiffs would not have purchased their home if the express warranties

did not transfer to them upon purchase.

117. The January 1, 2005 warranty specifically contains the certification that “THE


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MANUFACTURERS products are fully warranted against defects in workmanship and

materials.” Likewise, the January 1, 2010 contains the “assurance” that the windows are

warranted against defects “in the frame, sash or other non-glass components, as manufactured.”

118. MIWD expressly warranted that the Windows are “fully warranted against defects

in workmanship and materials under normal use and service.” MIWD agreed “to repair or

replace AT THE FACTORY, FREE OF CHARGE, any returned product that is found to be

defective.” (emphasis in original).

119. Upon information and belief, all of MIWD written warranties applicable to

class members contain the same or similar provisions as evidenced by Exhibits A, B, C, D and

E.

120. The limitations of damages and the limitations to the original purchaser contained

in the express warranty provisions are harsh, oppressive and one-sided. The limitations related to

the amount of damages, the type of remedies available to Plaintiffs and Class Members are

unconscionable when MIWD knows or should have known that there are defects in the design

and manufacturing of the Windows.

121. However, despite MIWD’s assurances, as described in detail supra, the Windows

contain the aforementioned defects and do not conform to all applicable building codes and

industry standards and are not free from defects.

122. These aforementioned defects are present when the Windows leave MIWD’s

control.

123. MIWD has been repeatedly put on notice of the defects in the Windows by

various methods described above.


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124. As Plaintiffs and homeowners have defective windows in their homes, which

have not been and would not be sufficiently repaired or replaced by MIWD, they have not

received the value of what the window purchaser bargained for at the time the windows were

sold or at the time they were transferred through the sale of the home.

125. MIWD breached the express warranty by selling its Windows that were defective

and not reasonably fit for their ordinary and intended purpose. Further, the Windows did not

conform to the express representations contained within the Windows.

126. By its conduct and defective products, MIWD has breached its express warranty

with Plaintiffs and members of the class.

127. In addition, MIWD has breached its express written warranties by not providing

Plaintiffs with Windows which are free from defects and/or by discouraging warranty claims.

128. MIWD’s written warranty is also unconscionable and fails of its essential purpose

because, by merely providing a replacement Window, the replacement Window is also inherently

defective.

129. Plaintiffs, who did not directly purchase the Windows, did not negotiate or

bargain for the terms of the express warranty provisions and any purported limitations contained

therein. Upon information and belief, the distributors, contractors, and other customers of MIWD

did not and could not negotiate or bargain for the terms of the express warranty provisions and

any purported limitations contained therein. Instead, MIWD stood in a position of domination

and control over the terms.

130. Upon information and belief, MIWD knew that the Windows had a history of


32

failures, resulting in damage to other property and mold growth, yet MIWD failed and omitted to

inform its distributors, its customers, Plaintiff and Class Members on whose residence the

Windows were installed.

131. In light of the foregoing, MIWD’s limitations within its warranties are invalid and

fail of their essential purpose and/or is unconscionable.

132. Plaintiff Bradley filed warranty claims with MIWD. Although MIWD honored

the first warranty claim by replacing five Windows free of charge to Plaintiff, MIWD failed to

honor the second warranty claim, in that Plaintiff was required to bear the expenses of shipping

and installation of the three replacement Windows.

133. Plaintiff Kennedy has made a warranty claim with MIWD. Despite its express

representations regarding the standards the Windows conform to, MIWD has asserted that, since

he is not the first purchaser of her home, the express warranty does not extend to him.

Accordingly, MIWD’s warranty fails of its essential purpose and/or is unconscionable.

134. When Plaintiff Womack made a warranty claim and provided notice to MIWD of

the defects in his Windows, MIWD stated that Plaintiff was not covered by the warranty since it

states, in fine print, “Enforceability of this warranty is limited to the original consumer

purchaser.” This is unconscionable.

135. Plaintiff Deem contacted MIWD about the damage from their defective Windows

but was told he was not covered by the warranty because he was not the original owner of the

home.

136. The Meiferts reviewed MIWD’s warranty on its website stating that the windows


33

were warranted for a period of ten years, and filed warranty claims with MIWD about the

damage from the Windows. However, MIWD told the Meiferts that they were not covered by

the warranty because they were a subsequent owner of the home. However, contrary to MIWD’s

assertion, the Meiferts purchased their home directly from the builder of the home and were the

first owners to live in the home. Despite providing this information to MIWD, MIWD refused to

honor its warranty. Further, the Meiferts would not have purchased their home if they were not

provided with a warranty from their builder, and the warranty, at all times was the basis of the

bargain between the parties.

137. The McGaffins contacted MIWD about the damage from their defective Windows

pursuant to their Warranty. Without investigating the McGaffin’s claim, MIWD dismissed their

claim, without a basis, by asserting that the Windows were not installed correctly. Accordingly,

MIWD has not complied with its warranty.

138. When Plaintiff Hildebrand made a warranty claim and provided notice to MIWD

of the defects in his Windows, MIWD stated that Plaintiff was not covered by the warranty since

it states, in fine print, “Enforceability of this warranty is limited to the original consumer

purchaser.”

139. The Wanis contacted MIWD about the damage from their Windows but were told

they were not covered by the warranty because they were the second owners of their home.

140. The foregoing breaches of express warranty at issue were substantial factors in

causing damages to Plaintiffs and Class Members.

141. As a direct and proximate result of MIWD’s breach of the express warranty on

the Windows, the Plaintiffs and Class Members have suffered actual and consequential damages.


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COUNT TWO

BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY

(On Behalf of Class Members Represented by Plaintiffs Deem, McGaffin, McCubbreys)




143. MIWD entered into contracts with retailers, suppliers and/or contractors to sell its

Windows that were to be installed at Plaintiffs’ and the Class Members’ properties.

144. Plaintiffs and the Class members are intended third party beneficiaries of those

contracts because it was the clear and manifest intent of MIWD that the contracts were to

primarily and directly benefit Plaintiffs and the Class Members when the Windows passed to

homeowners through the sale of homes containing the Windows.

145. MIWD warranted that its Windows were merchantable and reasonably fit for their

ordinary purpose, and would not cause damage as set forth herein.

146. MIWD impliedly warranted that the Windows conformed to all applicable Kansas

and Michigan Building Codes, ASTM standards and/or AAMA standards.

147. MIWD breached the implied warranty of merchantability by selling its Windows

that were defective and not reasonably fit for their ordinary purpose and did not conform to the

standards represented above.

148. MIWD’s Windows are defective because they cause and continue to cause

damage as described more fully herein and permit leaks into Plaintiffs’ and Class Members’

homes.

149. As a result of MIWD’s breach of the implied warranty of merchantability,


35

Plaintiffs and the Class Members have suffered and continue to suffer damages.

COUNT THREE

BREACH OF IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE

(On Behalf of Class Members Represented by Plaintiffs Deem, McGaffin, McCubbrey)




151. MIWD entered into contracts with retailers, suppliers and/or contractors to sell its

Windows that was to be installed at Plaintiffs’ and the Class members’ properties.

152. Plaintiffs and the Class members are intended third party beneficiaries of those

contracts because it was the clear and manifest intent of MIWD that the contracts were to

primarily and directly benefit Plaintiffs and the Class members when the Windows passed to

homeowners through the sale of homes containing the Windows.

153. At the time MIWD entered into contracts with retailers, suppliers and/or

contractors, MIWD knew and had reason to know that its Windows were being purchased for the

particular purpose of being installed at Plaintiffs’ and the Class members’ properties.

154. Plaintiffs and the Class members, directly or indirectly, relied on MIWD’s

representations and warranties that its Windows were suitable for the particular purpose of being

installed at Plaintiffs’ and the Class members’ properties.

155. MIWD warranted that its Windows were fit for the particular purpose of being

installed at Plaintiffs’, the Class members’ properties.

156. MIWD breached the implied warranty of fitness for a particular purpose by

selling its Windows that were defective and not reasonably fit for their ordinary purpose.


36

157. MIWD’s Windows are defective because they cause and continue to cause

damage as described more fully herein.

158. As a result of MIWD’s breach of the implied warranty of fitness for a particular

purpose, Plaintiffs and the Class members have suffered and continue to suffer damages.

COUNT FOUR

BREACH OF IMPLIED WARRANTY

(On Behalf of Class Members Represented by Plaintiffs Johnson, Zambriczki, Van Such,

Wani, and the Nashs)




160. MIWD is a designer, manufacturer, and supplier of the Windows, and for a

number of years, marketed, warranted, distributed, and/or sold the Windows in throughout the

United States.

161. MIWD impliedly warranted that the Windows would be free from defects and fit

for their customary and normal use.

162. MIWD also impliedly warranted that the Windows would conform to all South

Carolina, Ohio Building Codes and applicable industry standards.

163. The Windows are not fit for the ordinary purposes for which the Windows were

sold, are not merchantable, and will not pass without objection in the trade and do not conform to

all applicable building codes and testing standards.

164. The Windows were defective at the time they left the factory.

165. MIWD failed to give Plaintiffs and members of the Class adequate warnings and


37

notices regarding the defect in the Windows despite the fact that MIWD knew or should have

known of this defect, with the intent that Plaintiffs and members of the Class would rely upon

MIWD’s failure to disclose the defect when purchasing the Windows. Plaintiffs, Class Members

and members of the public were deceived by and relied upon Defendant’s failures to disclose.

166. The Windows manufactured by Defendant were defective and unfit for their

intended use; these defects were unknown to Plaintiffs and members of the Class at the time they

purchased the Windows, or the houses containing the Windows; and Defendant knew or should

have known that the defective Windows were unfit for their intended purpose.

167. MIWD intended that Plaintiffs and members of the Class would rely on the

deception by purchasing its Windows, or houses containing the Windows, unaware of the

material facts described above. The conduct constitutes a breach of implied warranty.

168. The foregoing constituted a breach of MIWD’s implied warranties.

169. As MIWD’s express warranty (and warranty claims process thereunder) has

been breached and/or is unconscionable and/or fails of its essential purpose, as described above

and below, the limitations on implied warranties contained within the express warranty should be

deemed null and void and of no effect or limitation.

170. MIWD also failed to adequately disclaim any implied warranties.

171. As a direct and proximate result of the MIWD’s breach of the implied warranty

on the Windows, the Plaintiff class has suffered actual and consequential damages.

COUNT FIVE

NEGLIGENCE/NEGLIGENT DESIGN

(On Behalf of Class Members Represented by Johnson, Zambriczki, Van Such, DeBlaker,

Bradley, Kennedy, Wani, Nash, Hildebrand, Meifert, McGaffin, Deem, and McCubbrey)



38



173. At all times material hereto, MIWD designed and manufactured the Windows.

174. MIWD had a duty to Plaintiffs and to members of the class to design and

manufacture Windows that were free of latent defects that would cause the Windows to leak.

175. MIWD had a duty to Plaintiffs and to members of the class to test the

Windows to ensure adequate performance of the windows for a reasonable period of use.

176. MIWD had a duty to Plaintiffs and to class members to ensure that the window

components were suitable, either by testing or by verifying third-party test results.

177. MIWD had a duty to Plaintiffs and to members of the class to ensure that their

products complied with industry standards and all applicable building codes across the country.

178. MIWD had a duty to Plaintiffs and to members of the class to forewarn

purchasers, installers, and users regarding the known risk of product failures.

179. MIWD failed to exercise ordinary and reasonable care in the design and

manufacture of the Windows and in determining whether the Windows that it sold, and

continued to sell, contained a latent defect that would result in the failure of the Windows to

perform as reasonably expected.

180. MIWD failed to exercise ordinary and reasonable care in the design and

manufacture of the Windows and breached the foregoing duties.

181. MIWD breached its duty to the Plaintiffs and class members to test the Windows

to ensure adequate performance of the Windows for a reasonable period of use.

182. MIWD breached its duty to Plaintiffs and to class members to ensure that the


39

window components were suitable, either by testing or by verifying third-party test results.

183. MIWD breached its duty to Plaintiffs and to members of the class to

ensure that their products complied with industry standards and the applicable building codes.

184. MIWD breached its duty to Plaintiffs and to members of the class to forewarn

purchasers, installers, and users regarding the known risk of product failures.

185. The negligence of MIWD, its agents, servants, and/or employees, include the

foregoing, as well as the following acts and/or omissions:

a. designing, manufacturing, processing, distributing,

delivering, supplying, inspecting, marketing and/or selling

Windows without adequately and thoroughly testing them

to all applicable standards and building codes;

b. designing, manufacturing, processing, distributing,

delivering, supplying, inspecting, marketing and/or selling

Windows without adequately testing long term

performance;

c. negligently failing to ensure that the Windows conformed

to all applicable standards and building codes; and

d. concealing information concerning the defects inherent in

the Windows from Plaintiffs and the Class members, while

knowing that MIWD’s Windows were defective and non-

conforming with accepted industry standards and building

codes.

186. Plaintiffs have been damaged because the defective Windows have permitted

mold and mineral growth in Plaintiffs’ and Class Members’ homes, have damaged adjoining

finishes and walls, have contaminated the living space, and damaged other personal property

within the homes.

187. The Plaintiffs and Class Members have also been damaged as a direct and

proximate result of the negligence, carelessness, recklessness, willfulness, and wantonness of


40

Defendant MI as aforesaid.

188. As MIWD conduct was grossly negligent, reckless, willful, wanton, intentional,

fraudulent, or the like, Plaintiff class is entitled to an award of punitive damages against MIWD.

COUNT SIX

STRICT LIABILITY

(On Behalf of Class Members Represented by Plaintiffs Johnson, Zambriczki, Van Such)




190. MIWD is in the business of designing, manufacturing, marketing, distributing

and/or selling windows and doors.

191. The Windows are defectively designed and manufactured and are unreasonably

dangerous in that they allow water to intrude into the interior of the residence, resulting in mold

and algae growth at the location of the leak and consequential damage to the structure into which

the windows were installed.

192. The Windows reached the Plaintiffs and Class Members, and were intended to

reach the Plaintiff class, without substantial change in the condition in which they were sold.

193. MIWD is in violation of South Carolina Code §15-73-10, for having designed,

manufactured, marketed, distributed, and sold the Windows, which were defective, to the

Plaintiff class.

194. As a direct, foreseeable, and proximate result of the sale of the defective windows

to Plaintiffs and Class Members, the Plaintiffs and Class Members have suffered significant

physical damage to their homes and other personal property which includes contamination to the


41

living space and deterioration within the home.

COUNT SEVEN

STRICT PRODUCTS LIABILITY – DESIGN DEFECT, MANUFACTURING DEFECT

AND FAILURE TO WARN (N.J.S.A. 2A:58C-1 et seq.)

(On Behalf of Class Members Represented by Plaintiff Womack)




196. At all relevant times, MIWD was engaged in the business of manufacturing

Windows, which is the subject of this action.

197. The Windows were expected to and did reach Plaintiff and the Class without

substantial change to the condition in which it was designed, manufactured and sold by MIWD.

198. The Windows installed on Plaintiff’s and the Class Members’ properties was and

is defective and unfit for its intended use. The use of Windows has caused and will continue to

cause other property damage to Plaintiff and the Class.

199. The Windows were so defective in design or formulation or manufacture that

when it left the hands of Defendants, the foreseeable risks exceeded the benefits associated with

the design, formulation or manufacture of MIWD’s Windows.

200. At all times herein mentioned, MIWD’s Windows were in a defective condition

and unsafe, and Defendants knew, or had reason to know, or should have known that their

Windows were defective and unsafe, especially when used in the form and manner as provided

by MIWD.

201. Plaintiff and the Class Members utilized the Windows for the purposes and

manner normally intended.


42

202. MIWD had a duty to create a product that was not unreasonably dangerous for its

normal, intended use and would not result in damage to Plaintiff’s and Class Member’s other

property.

203. Plaintiff and the Class, acting a reasonably prudent people, could not have

discovered that Defendants’ Windows was defective as herein mentioned or perceive its danger.

204. The Windows designed, manufactured, warranted, advertised and sold by MIWD

was defective due to inadequate warnings or instructions and/or inadequate testing.

205. By reason of the foregoing, MIWD is strictly liable to Plaintiff and the Class for

designing, manufacturing, and selling MIWD’s Windows.

206. Plaintiff, on behalf of itself and all others similarly situated, demands judgment

against MIWD for compensatory damages for themselves and each member of the Class, for the

establishment of the common fund, plus attorney’s fees, interest and costs.

COUNT EIGHT

STRICT PRODUCTS LIABILITY

DESIGN DEFECT, MANUFACTURING DEFECT AND FAILURE TO WARN

(On Behalf of Class Members Represented by Plaintiff Hildebrand)




208. At all relevant times, MIWD was engaged in the business of manufacturing

Windows, which is the subject of this action.

209. The Windows were expected to and did reach Plaintiff and the Class without

substantial change to the condition in which it was designed, manufactured and sold by MIWD.

210. The Windows attached to Plaintiff’s and the Class Members’ properties were and


43

are defective and unfit for their intended use. The use of Windows has caused and will continue

to cause other property damage to Plaintiff and the Class.

211. The Windows were so defective in design or formulation or manufacture that

when it left the hands of Defendant, the foreseeable risks exceeded the benefits associated with

the design, formulation or manufacture of MIWD’s Windows.

212. At all times herein mentioned, MIWD’s Windows were in a defective condition

and unsafe, and Defendant knew, or had reason to know, or should have known that its Windows

were defective and unsafe, especially when used in the form and manner as provided by MIWD.

213. Plaintiff and the Class Members utilized the Windows for the purposes and

manner normally intended.

214. MIWD had a duty to create a product that was not unreasonably dangerous for its

normal, intended use and would not result in damage to Plaintiff’s and Class Member’s other

property.

215. Plaintiff and the Class, acting a reasonably prudent people, could not have

discovered that Defendant’s Windows were defective as herein mentioned or perceive its danger.

216. The Windows designed, manufactured, warranted, advertised and sold by MIWD

were defective due to inadequate warnings or instructions and/or inadequate testing.

217. By reason of the foregoing, MIWD is strictly liable to Plaintiff and the Class for

designing, manufacturing, and selling MIWD’s Windows.

218. Plaintiff, on behalf of himself and all others similarly situated, demands judgment

against MIWD for compensatory damages for themselves and each member of the Class, for the

establishment of the common fund, plus attorney’s fees, interest and costs.


44

COUNT NINE

UNFAIR TRADE PRACTICES ACT

(On Behalf of Class Members Represented by Plaintiffs Johnson, Zambriczki and Van

Such)




220. At all times relevant herein, MIWD engaged in the business of designing,

developing, manufacturing, marketing, distributing, and/or selling windows in the stream of

commerce.

221. MIWD was engaged in commerce as defined by the South Carolina Unfair Trade

Practices Act.

222. MIWD’s above-described activities, including knowingly or recklessly

placing a defective product into the stream of commerce, misrepresenting the suitability of the

product, failing to honor the warranty, concealing knowledge of the defects, attempting to limit

its responsibility through a sham warranty, and other acts to be shown through the course of

discovery and at trial, constitute unfair and deceptive practices in the conduct of MIWD’s trade.

223. MIWD’s above-described acts are capable of repetition and adversely affect the

public interest.

224. MIWD knew or should have known that its conduct was in violation of the

South Carolina Code Section 39-5-20.

225. As a direct, foreseeable, and proximate result of MIWD’s unfair trade

practices in South Carolina, the Plaintiffs have suffered significant damage, and are entitled to an

award of treble damages and attorney fees.


45

COUNT TEN

UNFAIR TRADE PRACTICES ACT

(On Behalf of Class Members Represented by Plaintiff DeBlaker)




227. N.C. Gen. Stat. § 75-1.1 makes unlawful, “Unfair methods of competition in or

affecting commerce, and unfair or deceptive acts or practices in or affecting commerce.”

228. MIWD engaged in unfair or deceptive acts or practices in violation of N.C. Gen.

Stat. § 75-1.1 when, in selling and advertising the Windows, MIWD failed to give Plaintiff

DeBlaker and Class Members adequate warnings and notices regarding the defect in the

Windows despite the fact that MIWD knew or should have known of this defect, with the intent

that Plaintiff DeBlaker and Class Members and/or their builders would rely upon MIWD’s

failure to disclose the defect when purchasing the Windows. Plaintiff, Class Members and

members of the public were deceived by and relied upon MIWD’s failures to disclose.

229. MIWD also engaged in unfair or deceptive acts or practices in violation of N.C.

Gen. Stat. § 75-1.1 when it failed to provide an express warranty to all owners of homes with its

defective Windows.

230. As a direct and proximate result of these unfair, deceptive and unconscionable

commercial practices, Plaintiff and Class Members have been damaged in an amount in excess

of $10,000, and are entitled pursuant to N.C. Gen. Stat. § 75-16 to recover treble damages as

well as attorneys’ fees and costs.


46

COUNT ELEVEN

VIOLATION OF MICH. COMP. LAWS §445.903

(On Behalf of Class Members Represented by McCubbrey)




232. This is action is brought to secure redress for the unlawful, deceptive and unfair

trade practices perpetrated by MIWD on behalf of Plaintiffs McCubbrey and the Class members

similarly situated.

233. Mich. Comp Laws §445.903 were enacted to protecting the consuming public

from those who engage in unconscionable, deceptive or unfair acts or practices in the conduct of

any trade or commerce.

234. The conduct of Defendant, as alleged above, constituted unfair, unconscionable,

or deceptive acts or practices in violation of Mich. Comp Laws §445.903.

235. Defendant’s violations of Mich. Comp. Laws §445.903 include, but are not

necessarily limited to the following:

a) Defendant represented through its express and implied warranties to

Plaintiffs and the Class that the Windows had characteristics, uses, and benefits that they did not

have, specifically, that the Windows were dependable, quality products, free of defects;

Defendant thus violated of Mich. Comp. Laws § 445.903(1)(c);

b) Defendant failed to reveal to Plaintiffs McCubbrey, or the Class, material

facts that neither Plaintiffs nor the Class could reasonable have known, causing Plaintiffs and

the Class to be misled and deceived, including that (i) Defendant’s Windows were defective;


47

and (ii) that Defendant’s Windows would fail, leading to damage to the very structures and

personal property that they were purchased to protect, in violation of Mich. Comp. Laws §

445.903(1)(s);

c) Defendant failed to provide the benefits of its Windows that Defendant

promised to Plaintiffs McCubbrey and the Class, including that the Windows were fit for the

use for which it was intended and were free of defects, in violation of Mich. Comp. Laws §

445.903(1)(y);

d) Defendant failed to provide the benefits set forth in its warranty for its

Windows by failing to respond to customer complaints and/or failing to honor its warranties in

violation of Mich. Comp. Laws § 445.903(1)(y).

236. Defendant’s represented, through their express and implied warranties, that the

Windows were dependable, quality products, free of defects. These representations were false,

and Defendant knew that these representations were false at the time they were made, and

intended Plaintiffs and the class would act upon these representations. Plaintiffs and the Class

relied on these representations to their detriment.

237. Plaintiffs McCubbrey and the Class were damaged as a proximate result of

Defendant’s numerous violations of Mich. Comp Laws §445.903, including but not limited

to the violations of subparagraphs a-e set forth above.

238. Plaintiffs McCubbrey and members of the Class are entitled to compensatory

damages, equitable and declaratory relief, costs, and reasonable attorneys’ fees.


48

COUNT ELEVEN

VIOLATION OF THE ILLINOIS CONSUMER FRAUD AND DECEPTIVE BUSINESS

PRACTICES ACT

(On Behalf of Class Members Represented by Kennedy and Bradley)




240. At all time relevant hereto, there was in full force and effect the IFCA.

241. Section 2 of the ICFA provides in relevant part: “Unfair methods of competition

and unfair or deceptive acts or practices, including but not limited to the use or employment of

any deception, fraud, false pretense, false promise, misrepresentation or the concealment,

suppression or omission of any material fact, with the intent that others rely upon the

concealment, suppression or omission of such material fact, or the use or employment of any

practice described in Section 2 of the “Uniform Deceptive Trade Practices Act, “ approved

August 5, 1965, in the conduct of any trade or commerce are hereby declared to be unlawful

whether any person has in fact been deceived or damaged thereby. In construing this section

consideration shall be given to the interpretations of the Federal Trade Commission and the

federal courts relating to Section 5(A) of the Federal Trade Commission Act.” 815 ILL. COMP.

STAT. 505/2 (footnotes omitted).

242. Plaintiffs and Class Members are “consumers” within the meaning of the IFCA,

given that MIWD’s business activities involve trade or commerce, are addressed to the market

generally, and otherwise implicate consumer protection concerns.

243. MIWD engaged in concealment, suppression, or omission when, in selling the

Windows, MIWD knew that there were defects in the Windows which would result in water


49

damage, ensuing other property damage, and mold growth.

244. The facts that MIWD concealed, suppressed, or omitted as alleged herein are

material. Whether windows contain defects which will result in water damage, ensuing other

property damage, and mold growth is the kind of information a purchaser would be expected to

rely on in deciding whether to purchase the Windows. Additionally, Plaintiffs, Plaintiffs’

builders, Class Members, and/or Class Members’ builders would not have purchased the

Windows had they known or become informed of the material defects in the Windows, which

would result in water damage, ensuing other property damage, and mold growth.

245. MIWD engaged in concealment, suppression, or omission of the aforementioned

material facts with the intent that others, such as Plaintiffs, Plaintiffs’ builders, Class Members,

Class Members’ builders, and/or the general public would rely upon the concealment,

suppression, or omission of such material facts and purchase MIWD’s Windows containing said

design defect.

246. MIWD also failed to give Plaintiffs, Plaintiffs’ builders, Class Members, and/or

Class Members’ builders adequate warnings and notices regarding the defects in the Windows,

this despite the fact that MIWD knew or should have known of these defects, with the intent that

Plaintiffs, Plaintiffs’ builders, Class Members, and/or Class Members’ builders and members of

the Class would rely upon MIWD’s failure to disclose the defects when purchasing the

Windows. Plaintiffs, Class Members, Plaintiffs’ builders, Class Members’ builders, and

members of the public were deceived by and relied upon Defendant’s failures to disclose.

247. Once the defects became known, consumers (such as Plaintiffs) were entitled to

disclosure of that fact because: (a) a significant risk of water leakage would be a material fact in


50

a consumer’s decision-making process; and (b) without MIWD’s disclosure, consumers would

not know that there is any risk of water leakage.

248. Further, despite the plain language of MIWD’s express warranty which extends to

the initial homeowner, by denying warranty claims by asserting that the express warranty was

not the “basis of the bargain” between the parties, MIWD has committed an unfair act or

practice.

249. The above-described concealments, suppressions or omissions by MIWD have

had an effect on consumers generally, and implicate the general market.

250. The above described concealments, suppressions, or omissions by MIWD

constitute “unfair” acts or practices within the meaning of the ICFA, in that they are immoral,

unethical, oppressive, unscrupulous, and otherwise cause substantial injury to consumers. MIWD

knew of the material defects and continued to manufacture, distribute and sell the Windows to

the unsuspecting public (consumers) without disclosure. Furthermore, MIWD knew of the

defects and failed to recall or repair the defects.

251. MIWD concealed, suppressed and/or omitted the material defects from Plaintiffs,

Plaintiffs’ builders, Class Members, and/or Class Members’ builders willfully, with knowledge

and/or intent to deceive.

252. The material defects in the Windows are not the type that Plaintiffs, Plaintiffs’

builder, Class Members, and/or Class Members’ builders would have been able to discover on

their own, and in fact, Plaintiffs, Plaintiffs’ builders, Class Members, and/or Class Members’

builders were unaware of, unable to, and did not discover the material defects that were

concealed, suppressed or omitted by MIWD.


51

253. Plaintiffs, Plaintiffs’ builders, Class Members, and/or Class Members’ builders

relied on the fact that MIWD did not disclose the material defects in the Windows as a

representation that the Windows were reasonably suited for their intended use and purpose.

254. MIWD’s material omissions of the material defects in the Windows had the

tendency to mislead consumers into believing that the Windows were free from defects and

reasonably suited for their intended use and purpose.

255. MIWD also engaged in “unfair” acts or practices in violation of the ICFA when it

failed to provide an express warranty to all owners of homes with its defective Windows.

256. Because MIWD’s warranties are limited in duration and only to the first

purchasers, consumers were further entitled to know that water leakage might not exhibit itself

until after their warranties expired, and if that occurred, MIWD was not committing to repair the

condition.

257. MIWD further engaged in “unfair” practices in violation of the ICFA when it

failed to replace three defective windows at Plaintiff Bradley’s home “free of charge”,

notwithstanding its representation to the contrary in its express warranty applicable to him.

258. As a direct and proximate result of these “unfair” acts or practices, Plaintiff and

the members of the Class have sustained and will continue to sustain actual, direct and/or

consequential damages in amount which is as yet undetermined, but is in an amount in excess of

$75,000, and are entitled to recover damages as well as attorneys’ fees and costs.

COUNT TWELVE

VIOLATION OF NEW JERSEY’S CONSUMER FRAUD ACT




52



260. Defendant is a manufacturer, marketer, seller, and/or distributors of the Windows.

261. The conduct described above and throughout this Complaint took place within the

State of New Jersey and constitutes unfair business practices in violation of New Jersey’s

Consumer Fraud Act N.J. Rev. Stat. § 56:8-1 et seq. (2012) (hereinafter, “CFA”).

262. The CFA applies to the claims of Plaintiff and all the Class members because the

conduct which constitutes violations of the CFA by the Defendant occurred within the State of

New Jersey.

263. In violation of the CFA, Defendant employed fraud, deception, false promise,

misrepresentation and the knowing concealment, suppression, or omission of material facts in

their sale and advertisement of the Windows in the State of New Jersey.

264. MIWD engaged in the concealment, suppression, or omission in violation of the

CFA when, in selling and advertising the Windows, MIWD knew that there were defects in the

Windows which would result in water damage, ensuing other property damage, and mold

growth.

265. MIWD engaged in the concealment, suppression, or omission of the

aforementioned material facts with the intent that others, such as Plaintiff, Plaintiff’s Builder;

Class Members, Class Member’s Builders, and/or the general public would rely upon the

concealment, suppression, or omission of such material facts and purchase MIWD’s Windows

containing said design defect.

266. Plaintiff, Plaintiff’s Builder, Class Members, and/or Class Member’s builders


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would not have purchased the Windows had they known or become informed of the material

defects in the Windows.

267. MIWD’s concealment, suppression, or omission of material facts as alleged

herein constitute unfair, deceptive and fraudulent business practices within the meaning of the

CFA.

268. MIWD has acted unfairly and deceptively by misrepresenting the quality of the

Windows.

269. MIWD either knew, or should have known, that the Windows were defectively

designed and/or manufactured and would allow water intrusion, which would result in severe

damages to the structures, such that the structures were not as represented to be as alleged herein.

270. Upon information and belief, MIWD knew that, at the time Windows left

MIWD’s control, the Windows contain the defect described herein resulting in water intrusion

and mold growth. At the time of sale, the Windows contained design and construction defects.

The defects reduced the effectiveness and performance of the Windows and rendered it unable to

perform the ordinary purposes for which it was used as well as cause the resulting damage

described herein.

271. As a direct and proximate cause of the violation of the CFA, described above,

Plaintiff and members of the Class have been injured in that they have purchased homes or other

structures with the defective Windows based on nondisclosure of material facts alleged above.

Had Plaintiff and Class Members known the defective nature of the Windows used on their

structures, they would not have purchased their structures, or would have paid a lower price for

their structures.


54

272. MIWD used unfair methods of competition and unfair or deceptive acts or

practices in conducting their businesses. This conduct constitutes fraud within meaning of the

CFA. This unlawful conduct is continuing, with no indication that MIWD will cease.

273. MIWD’s actions in connection with the manufacturing and distributing of

Windows as set forth herein evidences a lack of good faith, honesty in fact and observance of fair

dealing so as to constitute unconscionable commercial practices, in violation of the State of New

Jersey Consumer Fraud Act, N.J. Rev. Stat § 56:8-1, et seq.

274. MIWD acted willfully, knowingly, intentionally, unconscionably and with

reckless indifference when it committed these acts of consumer fraud.

275. As a direct and proximate result of MIWD’s unfair and deceptive acts and

practices, Plaintiff and the other members of the Class will suffer damages, which include,

without limitation, costs to inspect, repair or replace their Windows and other property, in an

amount to be determined at trial.

276. As a result of the acts of consumer fraud described above, Plaintiff and the Class

have suffered ascertainable loss in the form of actual damages that include the purchase price of

the products for which MIWD is liable to the Plaintiff and the Class for treble their ascertainable

losses, plus attorneys’ fees and costs, along with equitable relief prayed for herein in this

Complaint.

COUNT THIRTEEN

UNFAIR AND DECEPTIVE TRADE PRACTICES

IN VIOLATION OF NEW YORK GENERAL BUSINESS LAW § 349

(On Behalf of Class Members Represented by Plaintiff Hildebrand)




55


278. This is action is brought to secure redress for the unlawful, deceptive and unfair

trade practices perpetrated by MIWD on behalf of Plaintiff and the Class members.

279. Plaintiff and Class Members are consumers and as owners of properties with

Defendant’s products attached to them, they are the end users and intended beneficiaries of said

products.

280. As a seller of Windows to the consuming public and whose conduct affects

similarly situated consumers and has a broad impact on consumers at large, Defendant is

engaged in consumer-oriented conduct within the intended ambit of GBL § 349.

281. Defendant’s actions and/or omissions as described herein violated GBL §349,

which declares as unlawful “deceptive acts or practices in the conduct of any business, trade or

commerce or in the furnishing of any service in this state.”

282. Specifically, Defendant knowingly misrepresented and intentionally omitted and

concealed material information regarding its Windows by failing to disclose to Plaintiff and

Class Members the known defects in their product and the known risks associated with same.

283. Furthermore, Defendant engaged in materially misleading deceptive acts and

practices by continuing to sell its Windows to the consuming public with knowledge that the

Windows would not perform as intended, represented and warranted, and that the Windows

would prematurely fail causing homeowners to incur significant out of pocket costs and expenses

in repairing damaged property and replacing their windows.

284. Defendant also engaged in materially misleading deceptive acts and practices by

issuing a Warranty that only “covered” original owners and not subsequent purchasers when


56

MIWD knew that the Windows would fail prior to the expiration of the “10 year warranty” and

that many original owners would likely sell their home to a subsequent purchaser prior to the

expiration of the Windows’ warranted life.

285. Additionally, MIWD engaged in materially misleading deceptive acts and

practices by requiring original owners who are “covered” under the Warranty to incur additional

out of pocket expenses for replacement parts and/or labor associated with the repair and/or

replacement of their Windows when the Windows fail prior to the expiration of their warranted

life. MIWD also unfairly charges original owners who attempt to make a warranty claim

additional fees for MIWD to inspect their property to determine whether or not a warranted loss

has occurred.

286. Defendant’s misrepresentations and concealment of material facts constitute

unconscionable commercial practices, deception, fraud, false pretenses, misrepresentation,

and/or the knowing concealment, suppression, or omission of materials facts with the intent that

others rely on such concealment, suppression, or omission in connection with the sale and use of

Defendant’s Windows in violation of GBL §349.

287. Defendant violated GBL §349 by knowingly and falsely representing that

Defendant’s Windows were fit to be used for the purpose for which they were intended, when

Defendant knew they were defective, unreliable, and unsafe and by other acts alleged herein.

288. Defendant’s deceptive and misleading actions and omissions as set forth herein

have caused and continue to cause injury to Plaintiff and the Class Members.

289. New York has enacted statutes to protect consumers from deceptive, fraudulent,

and unconscionable trade and business practices such as those alleged in this Complaint.


57

290. As a direct and proximate result of Defendant’s violations of GBL §349, Plaintiff

and the Class members have suffered and continue to suffer damages. Plaintiff and the Class

Members are entitled to compensatory damages, equitable and declaratory relief, punitive

damages, costs and reasonable attorneys’ fees.

COUNT FOURTEEN

NEGLIGENT MISREPRESENTATION

(On Behalf of Class Members Represented by Plaintiff Nash and Wani)




292. Plaintiffs bring this claim individually and on behalf of the members of the Class

against Defendant.

293. MIWD represented that the Windows would be free from defects and fit for their

customary and normal use.

294. MIWD represented that the Windows would conform to all applicable building

codes and industry standards as discussed herein.

295. These representations were material facts that influenced Plaintiffs’ Builders,

Plaintiffs', Class Members’ and/or Class members builders’ purchase of the Windows.

296. MIWD made these representations with the intent to induce Plaintiffs and Class

members to act upon them purchasing the Windows.

297. At the time Defendant made these representations, MIWD knew or should have

known that these representations were false or made them without knowledge of their truth or

veracity.


58

298. Plaintiffs, Plaintiffs’ Builders, Class Members and/or Class members’ builders

justifiably and detrimentally relied on these representations and, as a proximate result thereof,

have and will continue to suffer damages in the form of lost money from the purchase price and

property damage and/or having to pay to repair and replace the defective windows.

299. Plaintiffs and Class members suffered a loss of money in an amount to be proven

at trial as a result of Defendant’s wrongful conduct because: (a) they would not have purchased

the Windows on the same terms if the true facts concerning the defective Windows had been

known; (b) they paid a price premium due to they would be free from defects; and (c) the

Windows did not perform as promised.

COUNT FIFTEEN

FRAUDULENT CONCEALMENT BY SILENCE

(On Behalf of Class Members Represented by Plaintiffs McGaffin)




301. MIWD knew or should have known that the Windows were defective in design,

were not fit for their ordinary and intended use, and performed in accordance with neither the

advertisements, marketing materials, warranties, installation instructions and/or specifications

disseminated by MIWD nor the reasonable expectations of Plaintiffs’ builders and Class

Members’ builders.

302. However, Plaintiffs’, Plaintiffs’ Builders, Class Members and/or Class Members

Builders did have this knowledge and could not have discovered that the Windows were

defective by the exercise of reasonable diligence.


59

303. MIWD fraudulently concealed from and/or intentionally failed to disclose to

Plaintiffs and the Class that the Windows are defective.

304. MIWD had exclusive knowledge of the defective nature of the Windows at the

time of sale. The defect is latent and not something that Plaintiffs, Class members, Plaintiffs’

Builders and/or Class Members Builders, in the exercise of reasonable diligence, could have

discovered independently prior to purchase, because it is not feasible.

305. MIWD had the capacity to, and did, deceive Plaintiffs, Plaintiffs’ Builders, Class

members and/or Class Members’ Builders into believing that they were purchasing homes with

Windows free from defects.

306. MIWD undertook active and ongoing steps to conceal the defect from Plaintiffs,

Plaintiffs’ builders, Class Members, and/or Class Members’ Builders.. Plaintiffs are aware of

nothing in MIWD’s advertising, publicity or marketing materials that disclosed the truth about

the defect, despite MIWD’s awareness of the problem.

307. The facts concealed and/or not disclosed by MWID to Plaintiffs, Plaintiffs’

Builders, Class members and/or Class Members’ Builders are material facts in that a reasonable

person would have considered them important in deciding whether to purchase (or to pay the

same price for) the homes containing the Windows from their builders.

308. MIWD intentionally concealed and/or failed to disclose material factors for the

purpose of inducing Plaintiffs, Plaintiffs’ Builders and the Class Members’ builders to act

thereon.

309. Plaintiffs and the Class justifiably acted or indirectly relied upon the concealed

and/or nondisclosed facts to their detriment, as evidenced by Plaintiffs’ Builders and/or Class

Members’ purchase of the Windows by relying on MIWD’s advertisements or specifications

regarding the quality of the Windows.


60

310. Plaintiffs and Class members suffered a loss of money in an amount to be proven

at trial as a result of MIWD’s fraudulent concealment and nondisclosure because: (a) they would

not have purchased the Windows on the same terms if the true facts concerning the defective

Windows had been known; (b) they paid a price premium due to they would be free from

defects; and (c) the Windows did not perform as promised.

311. By reason of the foregoing, Plaintiffs and Class members suffered, and continue

to suffer, financial damage and injury.

COUNT SIXTEEN

UNJUST ENRICHMENT

(On Behalf of Class Members Represented by Plaintiffs Hildebrand and Womack)




313. Substantial benefits have been conferred on MIWD by Plaintiff and the Class and

MIWD have appreciated these benefits.

314. MIWD’s acceptance and retention of these benefits under the circumstances make

it inequitable for MIWD to retain the benefits without payment of the value to the Plaintiff and

the Class.

315. MIWD by the deliberate and fraudulent conduct complained of herein, have been

unjustly enriched in a manner that warrants restitution.

316. As a proximate consequence of MIWD’s improper conduct, the Plaintiff and the

Class members were injured. MIWD have been unjustly enriched, and in equity, should not be

allowed to obtain this benefit.


61

COUNT SEVENTEEN

VIOLATION OF MAGNUSON-MOSS ACT





318. The Magnuson-Moss Consumer Products Liability Act, 15 U.S.C §2301, et seq.

(“MMCPWA” or the “Act”) provides a private right of action to purchasers of consumer

products against retailers who, inter alia, fail to comply with the terms of a written warranty,

express warranty and/or implied warranty. As demonstrated above, MIWD has failed to comply

with the terms of its warranties, written, express and implied, with regard to the Windows that it

advertised, distributed, marketed and/or sold.

319. Plaintiff and the members of the Class are “consumers” under the MMCPWA.

320. MIWD has been given a reasonable opportunity by Plaintiff and other Class

members to cure such failures to comply and has repeatedly failed to do so.

321. By virtue of the foregoing, MIWD and other members of the Class are entitled to

an award of damages and other appropriate relief, including attorneys’ fees.

COUNT EIGHTEEN

DECLARATORY RELIEF

(On Behalf of Class Members Represented by Plaintiffs Hildebrand, DeBlaker, Womack,

Bradley and Kennedy)




323. MIWD has acted or refused to act on grounds that apply generally to Class

Members so that final injunctive relief or corresponding declaratory relief is appropriate


62

respecting the Class as a whole within the meaning of Fed. R. Civ. P. 23.

324. There is an actual controversy between MIWD and the Class Members

concerning the limitations on MIWD’s warranty and the defective design and/or manufacture or

MIWD’s Windows. MIWD has acted or refuses to act on grounds that apply generally to the

Declaratory Relief Class, so that final injunctive relief or corresponding declaratory relief is

appropriate respecting the Class as a whole within the meaning of Fed. R. Civ. P. 23(b)(2).

325. Pursuant to 28 U.S.C. § 2201, this Court may “declare the rights and legal

relations of any interested party seeking such declaration, whether or not further relief is or could

be sought.”

326. MIWD has wrongfully denied warranty claims due to the claims being filed by

subsequent purchasers and/or because MIWD has asserted that the water leaks and problems are

due to inadequate installation of the Windows despite the root cause of the leaks being the latent

design and/or manufacture of the Windows.

327. Accordingly, Plaintiffs seek a declaration that:

a) the Windows have defects which include and result in inadequate weep

systems, a premature failure of the seal, and lack or loss of sealant at joint

permitting water intrusion into the interior of structures on which the

Windows are attached;

b) certain provisions of Defendant’s warranty are void as unconscionable

because it does not provide warranty or replacement services for all of its

Windows which are defective;

c) certain provisions of Defendant’s warranty are void as unconscionable

because the Windows do not conform to the representations or warranties

as represented in the Windows themselves;


63

d) Defendant must notify owners of the defects

e) the limitation of the warranty to only the first purchaser is removed;

f) Defendant will reassess all prior warranty claims and pay the full cost of

repairs and damages; and

g) Defendant will pay the cost of inspection to determine whether any Class

members’ Windows need replacement.

PRAYER FOR RELIEF

WHEREFORE, Named Plaintiffs pray that this case be certified and maintained as a class action

and for judgment to be entered upon MIWD as follows:

1. For actual and compensatory damages on behalf of Named Plaintiffs and all Class

Members;

2. For restitution and disgorgement;

3. For punitive damages or statutory damages, as otherwise applicable;

4. For injunctive and declaratory relief, as claimed herein;

5. For equitable relief;

6. For reasonable attorneys’ fees and reimbursement of all costs for the prosecution of

this action; and

For such other and further relief as this Court deems just and appropriate.

JURY TRIAL DEMANDED

Named Plaintiffs demand a trial by jury on all issues so triable.

Respectfully submitted,

[signature on following page]


64

JUSTIN O'TOOLE LUCEY, P.A.

By: s/Justin Lucey_________________

Justin Lucey (Fed. ID No. 5613)

Harper L. Todd (Fed ID No. 10841)

415 Mill Street

Post Office Box 806

Mount Pleasant, SC 29465-0806

Telephone: (843) 849-8400

Fax: (843) 849-8406

[email protected]

[email protected]

Daniel K. Bryson, Esquire

Scott C. Harris, Esquire

Whitfield Bryson & Mason LLP

900 W. Morgan Street

Raleigh, NC 27603

[email protected]

[email protected]

Jordan L. Chaikin, Esquire

Parker Waichman, LLP

3301 Bonita Beach Road, Suite 101

Bonita Springs, FL 34134

[email protected]

John Climaco, Esquire

John Peca, Esquire

Climaco, Wilcox, Peca, Tarantino &

Garofoli Co.,LPA

55 Public, Suite 1950

Cleveland, OH 44113

[email protected]

[email protected]

James C. Shah, Esquire

Natalie Finkelman Bennett, Esquire

Shepherd Finkelman Miller & Shah, LLC

35 E. State Street

Media, PA 19063

[email protected]

[email protected]

Richard Arsenault, Esquire

Sri Gupta, Esquire

Neblett, Beard & Arsenault


mailto:[email protected]









65

2220 Bonaventure Court

Alexandria, LA 71301

[email protected]

[email protected]

Alyson Oliver

Oliver Law Group PC

950 W. University Ste. 200

Rochester, MI 48307

[email protected]

Edward Eshoo, Jr.

Childress Duffy, Ltd.

500 North Dearborn St.

Chicago, Illinois 60654

[email protected]

Jonathan Shub , Esquire

Scott George, Esquire

Seeger Weiss LLP

1515 Market St

Suite 1380

Philadelphia, PA 19102

[email protected]

[email protected]

Attorneys for the Homeowner Plaintiffs

Charleston, South Carolina

Dated: March 11, 2013








CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been

electronically filed with the Clerk of the United States District Court for the District of South

Carolina this 11th

day of March, 2013, and served on all parties of record via the CM/ECF

system and email.

Respectfully submitted,

JUSTIN O’TOOLE LUCEY, P.A.

By: s/ Justin Lucey

Justin Lucey (Fed. ID No. 5613)

Harper L. Todd (Fed. ID No. 10841)

415 Mill Street

Post Office Box 806

Mount Pleasant, SC 29465-0806

(843) 849-8400 phone

(843) 849-8406 facsimile

Liaison Attorney for Plaintiffs

March 11, 2013

Charleston, South Carolina

2:12-mn-00001-DCN Date Filed 03/11/13 Entry Number 76-1 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF...

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