Volovetz v. Tremco Barrier Solutions, Inc.
2016 Ohio 7707
Ohio Ct. App.2016Background
- Boris and Inna Volovetz contracted with North Central Insulation, Inc. (NCI) to install a Tremco Tuff-N-Dri exterior basement waterproofing system during construction of their home; the one-page signed quote stated the system "has a 30-year warrantee."
- Tremco manufactures Tuff-N-Dri and issues a separate five‑page "Tuff‑N‑Dri 30‑Year Limited Warranty" (Limited Warranty) that limits remedies and sets monetary caps.
- The Limited Warranty was emailed to Volovetz as part of a multi‑page PDF attachment, but Volovetz never signed or initialed those pages and never read the Limited Warranty before signing the quote.
- The installed system failed, causing water damage to foundation walls; Volovetz sued NCI (breach of express and implied warranties, workmanship) and Tremco (negligence, implied warranty).
- The trial court granted summary judgment to Tremco (holding the Limited Warranty was incorporated by reference into the contract and precluded other claims) and later granted summary judgment to NCI; on appeal the court considered (1) whether the Limited Warranty was incorporated into the signed quote, and (2) whether Tremco’s negligence claim was barred by the Ohio Product Liability Act (OPLA).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the signed one‑page quote incorporated Tremco’s separate Limited Warranty by reference | Volovetz: the quote did not clearly and specifically incorporate the separate Limited Warranty; he never agreed to its terms | Tremco/NCI: the quote’s statement that the system "has a 30‑year warrantee" referenced and incorporated Tremco’s Limited Warranty, binding its remedy limits | Held: Not incorporated. The statement was equivocal and could be read as an independent express warranty; incorporation by reference requires clear, specific identification and intent to incorporate, which was lacking. |
| Whether Tremco’s negligence claim is preempted by the Ohio Product Liability Act (OPLA) | Volovetz: negligence claim seeks recovery for property damage from Tremco’s alleged faulty installation instructions and therefore is viable | Tremco: OPLA abrogates common‑law product liability claims; allegations about instructions and resulting property damage fall within OPLA’s definition of a product liability claim | Held: Tremco entitled to summary judgment on negligence. The negligence claim meets OPLA’s statutory definition (instructions and physical damage to property other than the product), so OPLA preempts it. |
| Whether remedy limits in Tremco’s Limited Warranty, if incorporated, would bar plaintiffs’ non‑warranty claims | Volovetz: plaintiffs did not agree to the Limited Warranty so its remedy limits should not bar other claims | Tremco/NCI: remedy limitation governs and restricts available relief | Held: Not reached on merits because incorporation failed; remedy limits do not bind plaintiffs here. |
| Whether summary judgment for NCI was proper based on the Limited Warranty | Volovetz: NCI cannot rely on a warranty document not incorporated into the signed quote | NCI: same incorporation argument as Tremco | Held: Reversed. Trial court erred to grant NCI summary judgment because the Limited Warranty was not incorporated into the contract. |
Key Cases Cited
- Slyman v. Pickwick Farms, 15 Ohio App.3d 25 (10th Dist. 1984) (seller’s affirmations forming basis of bargain may create express warranty)
- Insurance Co. of N. Am. v. Automatic Sprinkler Corp., 67 Ohio St.2d 91 (1981) (limitation/exclusion of remedies must be part of the parties’ bargain)
- Northrup Grumman Information Technology, Inc. v. United States, 535 F.3d 1339 (Fed. Cir. 2008) (contract language must precisely identify material to be incorporated and clearly communicate intent to incorporate)
- LaPuma v. Collinwood Concrete, 75 Ohio St.3d 64 (1996) (economic‑loss rule in product cases; purely economic loss differs from physical property damage)