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01-2625 Selzer v. Brunsell Brothers, Ltd., St. Paul Fire & Marine Ins. Co., and Marvin Windows, Inc.

By: dmc-admin//September 3, 2002//

01-2625 Selzer v. Brunsell Brothers, Ltd., St. Paul Fire & Marine Ins. Co., and Marvin Windows, Inc.

By: dmc-admin//September 3, 2002//

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Defendant’s window surrounds began to rot about seven years after they were installed in plaintiff’s house; plaintiff brought this action for breach of express and implied warranties.

Where defendant’s sales materials stated that their windows had been “deep-treated to permanently protect against rot and decay,” and plaintiff’s architect provided an affidavit that he had relied on that language in specifying defendant’s windows for plaintiff’s house, plaintiff has made a prima facie showing of an express warranty.

But the phrase describes a feature of the millwork, and does not explicitly guarantee either a rot-free level of protection or any determinable period during which such protection would last; therefore it is not a warranty of future performance, and under the UCC, the statute of limitations on this express warranty of present condition began upon delivery of the windows in 1990, and expired in 1996, before the condition was discovered in 1997 and well before suit was filed in 2000.

We affirm dismissal of plaintiff’s claims as time barred; we also affirm denial of plaintiff’s claim that defendant should be judicially estopped from raising a timeliness argument (on the basis of prior litigation between defendant and one of defendant’s wood sealer suppliers).

Plaintiff’s false advertising claim is also barred, as it accrued in 1988 when he supplied his architect with the catalog, and expired in 1991, regardless of whether plaintiff had yet discovered his injury.

We also find that plaintiff’s tort claims for strict responsibility and negligent misrepresentation are barred by the economic loss doctrine.

Affirmed.

Recommended for publication in the official reports.

Dist IV, Dane County, Fiedler, J., Deininger, J.

Attorneys:

For Appellant: William F. Bauer, Madison; Amy F. Scholl, Madison

For Respondent: Barrett J. Corneille, Madison; Mark Budzinski, Madison

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