Dow Corning Corp. v. Weather Shield Manufacturing, Inc.
790 F. Supp. 2d 604
E.D. Mich.2011Background
- Weather Shield used Dow Corning's InstantGlaze as a bedding/glazing compound in 2002–2004 with Weather Shield testing it as an experiment.
- Dow Corning contends its product carried only a limited warranty—meeting current specifications—and a limited remedy; Weather Shield claims broader express and implied warranties.
- March 22, 2004 Letter Agreement and prior contracts reference ‘specifications and data sheets’ current at shipment; the exact scope of warranties and references is disputed.
- Weather Shield, a sophisticated manufacturer, conducted extensive pre- and post-purchase testing and ultimately switched from InstantGlaze I to II and WS.
- Weather Shield seeks damages for breach of warranty and breach of contract, including implied warranty of fitness and damages beyond purchase price; Dow Corning seeks summary judgment to limit liability.
- The court grants in part and denies in part Weather Shield’s motion, finding issues of material fact remain on several warranty theories and contract interpretation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there is an express warranty for a particular purpose | Weather Shield asserts an express warranty based on representations | Dow Corning contends only the defined limited warranty applies | Issues for trial; not entitled to summary judgment on express warranty |
| Whether implied warranty of fitness for a particular purpose is negated by pre-contract testing | Weather Shield relied on Dow Corning’s skill for Weather Shield's purpose | Dow Corning argues extensive testing defeats reliance | Weather Shield granted summary judgment on implied fitness claim |
| Whether the sale incorporated Dow Corning’s sales specifications and related disclaimers | Specifications/DSs and disclaimers may be part of contract by reference | Only the equipment warranty and per-shipment specs apply; disclaimers may be excluded | Ambiguity survives; factual questions for jury |
| Whether Weather Shield’s spoliation/notice damages are sanctions-worthy | Damages claimed for repairs and evidence loss are legitimate | Spoliation warrants sanctions including dismissal of damages | sanctions denied; damages issue remains for trial |
Key Cases Cited
- Kraft v. Dr. Leonard's Healthcare Corp., 646 F. Supp. 2d 882 (E.D. Mich. 2009) (advertisements can be part of the basis of the bargain)
- Price Bros. Co. v. Philadelphia Gear Corp., 649 F.2d 416 (6th Cir. 1981) (oral warranties may be part of the bargain unless written integration)
- Overstreet v. Norden Laboratories, Inc., 669 F.2d 1286 (6th Cir. 1982) (trier of fact decides whether circumstances create express warranties)
- Salzman v. Maldaver, 315 Mich. 403 (Mich. 1946) (written contract clear terms bar parol warranties)
- McGhee v. GMC Truck & Coach Division, 98 Mich. App. 495 (Mich. Ct. App. 1980) (general expressions of opinion do not create warranties)
- Murphy v. Gifford, 228 Mich. 287 (Mich. 1924) (express warranties must be part of contract terms)
- Forge v. Smith, 458 Mich. 198 (Mich. 1998) (incorporation of terms requires intent evidenced in contract)