2002-300 2003-376, JOHN J. KELLEHER, JR. v. MARVIN LUMBER AND CEDAR COMPANY

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Hillsborough-northern judicial district
Nos. 2002-300
2003-376
JOHN J. KELLEHER, JR.
v.
MARVIN LUMBER AND CEDAR COMPANY
Argued: September 14, 2005
Opinion Issued: December 15, 2005
Sulloway & Hollis, P.L.L.C., of Concord (John R. Harrington on the brief
and orally), for the plaintiff.
Orr & Reno, P.A., of Concord (Emily Gray Rice on the brief and orally), for
the defendant.
GALWAY, J. In these consolidated appeals, the defendant, Marvin
Lumber and Cedar Company (Marvin), appeals: (1) the partial jury verdict from
the Superior Court (Brennan, J.) in the first trial that awarded the plaintiff,
John J. Kelleher, Jr., $53,676.00 in damages on his strict liability claim; (2) the
jury verdict in the retrial that awarded the plaintiff $57,247.04 on his breach of
express warranty and breach of the Magnuson-Moss Warranty-Federal Trade
Commission Improvement Act (Magnuson-Moss Act) claims; and (3) the award
of attorney’s fees, at the conclusion of the retrial, in the amount of
$119,898.57. The plaintiff cross-appeals the trial court’s dismissal of his
breach of implied warranty claim under the Act. We affirm in part, vacate in
part, and remand.

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The record supports the following facts and procedural history. In 1986,
the plaintiff purchased and installed windows manufactured by the defendant
in his newly constructed residence in Ogunquit, Maine. The plaintiff
purchased the windows from John Collins, a salesman employed by Steenbeke
& Son, a New Hampshire retail building materials supplier. The windows were
treated with a wood preservative (PILT), which was manufactured by PPG
Industries and designed to inhibit “premature, moisture-induced wood rot.”
Before trial, the defendant conceded that PILT is an ineffective preservative.
In 1986, the plaintiff noticed a leak in one of his living room windows.
As a result of that leak, and upon the recommendation of a Marvin windows
distributor, all of the newly installed windows were re-caulked. In 1993 or
1994, the plaintiff noticed that a small piece of molding on the sash of a rear
window contained rot, and he had it repaired. Sometime in 1997, the plaintiff
noticed that the sash of the same rear window also contained rot and the sash
was replaced. Then, in 1998, the plaintiff employed a painter who found
significant amounts of rot in five Marvin windows. Shortly thereafter, in
August 1998, the plaintiff filed a complaint form with the defendant, thereby
formally notifying it of the rot damage in his windows. In response to a
question on the complaint form, the plaintiff indicated that the rot problem
began in “1993/’94?”
After receiving the plaintiff’s complaint, a Marvin representative
inspected all of the windows in the plaintiff’s home and determined that
seventeen windows contained rot damage. The inspector showed the plaintiff
that a subtle dimpling of the surface coating of the windows was a sign that the
underlying wood was rotten. On November 12, 1999, after negotiations to
replace the damaged windows were unsuccessful, the plaintiff initiated the
underlying lawsuit seeking damages for the replacement costs of the defective
windows, loss of value of the house in which the windows were installed and
costs related to repairing water damage allegedly caused by the defective
windows.
During the course of this litigation, the defendant produced a one-year
limited warranty (the one-year warranty), which was in effect in 1986 and
allegedly accompanied the windows that were delivered to the plaintiff. This
one-year warranty guaranteed the wood portion of the windows. The plaintiff
alleged that an oral fifteen-year warranty was given by a Steenbeke salesman
during a telephone conversation in 1998, in which the salesman represented
that the windows were “guaranteed for a period of fifteen years” (the fifteen-
year warranty). In addition, the defendant’s catalog, which was generally
available from Steenbeke when the plaintiff purchased the windows, stated
that: (1) “all exterior wood is deep treated in a dry vac process with a pesticide
and water repellant solution to permanently protect against rot and decay”;

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and (2) the pre-finish “lasts four to five times longer than paint” (the catalog
warranty).
The plaintiff’s writ asserted claims based upon the fifteen-year warranty
but failed to identify the alleged warranty contained in the defendant’s catalog.
On June 23, 2000, based upon the fifteen-year warranty, the defendant moved
to dismiss all of the plaintiff’s claims, asserting they were barred by the
applicable statutes of limitations and the economic loss doctrine. Specifically,
with respect to the Magnuson-Moss and breach of express warranty claims,
Marvin argued that the fifteen-year warranty was insufficient to trigger the
future performance exception to the applicable statute of limitations, and,
therefore, these claims were untimely. See RSA 382-A:2-725(1) (1994). Based
upon the fifteen-year warranty, the Superior Court (Groff, J.) denied the
defendant’s motion to dismiss the breach of express warranty claim, but
dismissed the Magnuson-Moss claim because the fifteen-year warranty did not
comply with the Magnuson-Moss Act’s requirement that it be in writing. The
strict liability claim also survived the motion to dismiss.
By order dated September 19, 2000, the trial court granted the plaintiff’s
motion to amend the writ, which ultimately resulted in both the Magnuson-
Moss and breach of express warranty claims being based upon the written
catalog warranty rather than the fifteen-year warranty. The defendant then
moved for summary judgment, reasserting that the plaintiff’s claims were
untimely and, therefore, barred as a matter of law. With respect to the strict
liability claim, the defendant asserted that the plaintiff knew that one of the
windows contained rot as early as 1996, and, therefore, even if the discovery
rule exception to RSA 508:4, I (1997) applied, the plaintiff still failed to timely
file this claim. Similarly, it argued that pursuant to RSA 382-A:2-725, the
statute of limitations applicable to the Magnuson-Moss and breach of express
warranty claims, the plaintiff was required to file his claim within four years of
delivery of the windows. The defendant also argued that the catalog warranty
was not sufficiently explicit to invoke the future performance exception and,
therefore, failed to trigger the discovery rule exception encompassed by RSA
382-A:2-725. On April 5, 2001, the trial court denied the defendant’s
summary judgment motion.
In October 2001, the court conducted a six-day jury trial. By way of a
special verdict form, the jury returned a partial verdict for the plaintiff on the
strict liability count, awarding damages in the amount of $53,676.00.
However, the court declared a mistrial as to the Magnuson-Moss and breach of
express warranty claims when the jury was unable to reach a verdict on them.
The defendant’s subsequent post-trial motion to set aside the verdict, motion
for a new trial, motion to reduce damages, and motions for a directed verdict
and judgment notwithstanding the verdict (JNOV) were denied.

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The defendant appealed the jury verdict, arguing the trial court erred in:
(1) determining the plaintiff’s claims were timely and did not violate the
applicable statute of limitations; (2) declining to determine that the catalog
warranty was insufficient, as a matter of law, to trigger the future performance
exception of RSA 382-A:2-725; (3) allowing the plaintiff to simultaneously
maintain both the strict liability claim and the Magnuson-Moss claim; (4)
denying its motion to set aside the verdict on the strict liability claim; (5)
denying its motion in limine and admitting statements made by Marvin’s
agents in connection with another case as statements of a party opponent; (6)
failing to properly instruct the jury regarding damages on the strict liability
claim; (7) failing to determine that the damages sought by the plaintiff in strict
liability were barred by the economic loss doctrine; (8) denying the defendant’s
motion to reduce damages on the strict liability claim; and (9) denying its
motion to dismiss the Magnuson-Moss claim on the basis that the catalog
warranty failed to qualify as a written warranty for the purposes of the
Magnuson-Moss Act.
While this appeal was pending and over the defendant’s objection, the
trial court scheduled a retrial of the breach of express warranty and
Magnuson-Moss claims. We suspended the pending appeal to allow the trial
court to resolve the defendant’s remaining claims. Accordingly, in February
2003, the trial court conducted a three-day trial on the remaining claims.
Prior to the February 2003 trial, and contrary to its ruling in the prior
trial, the trial court granted the plaintiff’s motion to exclude evidence of the
one-year warranty at trial. Additionally, prior to charging the jury, the trial
court partially granted the plaintiff’s motion for a directed verdict, ruling that
the representations made in the catalog constituted a written warranty as a
matter of law. The trial court then instructed the jury regarding the catalog
warranty, the burden of proof, the elements of the claims, damages, and the
statute of limitations. The jury returned a plaintiff’s verdict in the amount of
$57,247.04. The court then granted the plaintiff’s motion for attorney’s fees,
pursuant to the Magnuson-Moss Act, in the amount of $119,898.57. Both
parties timely appealed.
On appeal, in addition to incorporating previously asserted arguments,
the defendant argues that the trial court: (1) erred in refusing to delay the
retrial of the plaintiff’s breach of warranty claims; (2) improperly excluded
evidence of the one-year warranty; (3) improperly determined, as a matter of
law, that the defendant’s catalog was a warranty; (4) improperly instructed the
jury regarding the appropriate burden of proof, the elements of and damages
available under the breach of warranty and Magnuson-Moss Act claims, and
the applicable statute of limitations; (5) erred in refusing to reduce the amount
of damages; and (6) erred in granting attorney’s fees.

5
The plaintiff cross-appealed, asserting the trial court erred in dismissing
his claim for breach of implied warranty under the Magnuson-Moss Act. We
consolidated the defendant’s two appeals and the plaintiff’s cross-appeal. We
first address the defendant’s appeals and then turn to the plaintiff’s cross-
appeal.
I. Statute of Limitations
The defendant argues that the plaintiff’s claims were barred by the
applicable statute of limitations as a matter of law. As a preliminary matter,
we note that the defendant raised and reasserted this issue throughout the
pre-trial and trial process. In the interest of judicial economy, we will review
the trial court’s pre-trial rulings de novo, the most favorable standard to the
appealing party. However, any subsequent rulings made during and after the
trial will be reviewed individually under the appropriate standard.
A. Strict Liability
The defendant asserts that the plaintiff’s strict liability claim was
untimely filed and barred by RSA 508:4, I (1997). It contends that the plaintiff
acknowledged that he knew there was rot damage in one window in 1993 or
1994. Because the plaintiff failed to initiate this cause of action within three
years thereafter, the defendant contends the trial court erred in denying its
motion for summary judgment.
The plaintiff counters that the statute of limitations accrued in
approximately 1998, when he first learned of the pervasiveness of the rot
damage in more than one window and could reasonably have known of its
connection to the ineffective preservative. The plaintiff argues that the issue of
whether, with reasonable diligence, he should have known of the rot problem
when he first discovered rot damage in 1993 or 1994 is an issue of fact, which
the trial court properly reserved for the jury.
Under the doctrine of strict liability, “[o]ne who sells any product in a
defective condition unreasonably dangerous to the user or consumer or to his
property is subject to liability for physical harm thereby caused to the ultimate
user or consumer.” Price v. BIC Corp., 142 N.H. 386, 388 (1997); Restatement
(Second) of Torts § 402A(1) (1965). RSA 508:4, I, codifies the common law
discovery rule applicable to all personal actions “except as otherwise provided
by law,” thereby encompassing this strict liability claim. See Dobe v. Comm’r,
N.H. Dep’t of Health & Human Services, 147 N.H. 458, 461 (2002). RSA 508:4
provides in pertinent part:

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Except as otherwise provided by law, all personal
actions . . . may be brought only within 3 years of the
act or omission complained of, except that when the
injury and its causal relationship to the act or
omission were not discovered and could not
reasonably have been discovered at the time of the act
or omission, the action shall be commenced within 3
years of the time the plaintiff discovers, or in the
exercise of reasonable diligence should have
discovered, the injury and its causal relationship to
the act or omission complained of.
RSA 508:4, I. Once the defendant establishes that the cause of action was not
brought within three years of the alleged act, the burden shifts to the plaintiff
to raise and prove the applicability of the discovery rule. Glines v. Bruk, 140
N.H. 180, 181 (1995).
Under the discovery rule exception, the statute of limitations does not
accrue until: (1) the plaintiff knows or reasonably should have known of the
injury; and (2) the plaintiff knows or reasonably should have known of the
causal connection between the injury and the alleged conduct of the defendant.
Big League Entm’t v. Brox Indus., 149 N.H. 480, 485 (2003). Whether the
plaintiff exercised reasonable diligence in discovering the causal connection
between the injury and the defendant’s alleged act or omission is a question of
fact. Black Bear Lodge v. Trillium Corp., 136 N.H. 635, 638 (1993).
Here, the parties do not dispute that the plaintiff first learned of the
injury—in this case property damage—in 1993 or 1994 when he noticed rot
damage in one window. However, whether the plaintiff, with reasonable
diligence, should have known of the causal connection between the rot damage
and the defendant’s use of the defective preservative, based on this single
incidence of rot damage, is a disputed factual issue. The defendant properly
raised the statute of limitations issue in its dispositive pre-trial motions,
thereby shifting the burden to the plaintiff to prove the applicability of the
discovery rule exception. The plaintiff argued that the discovery rule exception
tolled the statute of limitations until approximately 1997 or 1998, when he first
reasonably should have known of both the pervasiveness of the rot damage and
its connection to the defective preservative.
Thus, we must determine whether the court erred, as a matter of law, in
allowing the jury to decide whether the plaintiff should have known of the
connection between the rot damage and the defective preservative: (1) in
approximately 1993 after one window showed rot damage; or (2) in
approximately 1997 when he first learned of the pervasiveness of the rot
damage in many windows.

7
“The application of the discovery rule may require factual
determinations, but when an issue arises that is equitable in nature, the trial
judge acts as the trier of fact.” Keshishian v. CMC Radiologists, 142 N.H. 168,
179 (1997). The discovery rule has traditionally been deemed equitable. Id.
As such, the plaintiff is not entitled to have a jury decide the issue merely
because the application of the discovery rule involves a question of fact. Id.
The trial court has the discretionary power to decide a statute of limitations
question at a preliminary hearing in advance of trial. Id. at 180. It may also
delay ruling on the discovery rule issue until after the trial when the facts
regarding the plaintiff’s discovery are fully developed. Id. The trial court also
has the discretionary power to decide that this issue is most appropriately
decided by the jury, based upon evidence and testimony presented at trial.
However, we caution that it is often most economical and equitable to rule on
this issue at an earlier point in time, “thereby eliminating the need for a
lengthy trial.” Id.
In this case, the parties agree to certain basic facts, such as: (1) when
the plaintiff installed the windows; (2) when he noticed prior instances of rot
damage in individual windows; (3) when he was notified of the pervasive rot
damage in 1997; and (4) when he reported the defective windows to the
defendant in 1998. However, a determination regarding whether the plaintiff
knew, or should have reasonably known, of the connection between the
isolated “insignificant” incidences of window rot prior to November 12, 1996,
and the defendant’s use of “ineffective preservative” is a factual determination
that necessarily turns upon an evaluation of the evidence. Accordingly, we find
that the trial court did not err in submitting this issue to the jury.
We next review the jury’s finding that the discovery rule tolled the statute
of limitations until November 12, 1996. “We will set aside a jury verdict if it is
conclusively against the weight of the evidence or if it is the result of mistake,
partiality, or corruption.” Babb v. Clark, 150 N.H. 98, 100 (2003) (quotation
omitted). “We will uphold the trial court’s decision on a motion to set aside the
verdict unless the decision was made without evidence or the court committed
an unsustainable exercise of discretion.” Id.; see State v. Lambert, 147 N.H.
295, 296 (2001) (explaining unsustainable exercise of discretion standard).
The jury specifically found that the plaintiff neither knew, nor should
have known “in the exercise of reasonable diligence,” prior to November 12,
1996, “that the windows were defective and that he sustained property damage
as a result.” During the first trial, the plaintiff testified as to his purchase of
the windows, the small rot damage on the molding of one window in 1993 or
1994, subsequent incidents of rot damage in 1997, and the pervasive rot
damage found by a painter in 1998. Norman Porell, the master carpenter who
replaced 10-12 window units, testified regarding the pervasiveness of the rot

8
surrounding the windows, and damage to other property as a result of the rot
damaged windows. Darby Zentner, the defendant’s customer service
representative, also testified that the inspector found more damaged windows
than the plaintiff initially reported. We find this testimony, in conjunction with
other evidence presented at trial, sufficient to support the jury’s determination
that prior to November 1996, the plaintiff did not know, nor reasonably should
have known, “that the windows were defective and that he sustained property
damage as a result.”
Therefore, we uphold the jury’s determination, and the trial court’s
denial of the defendant’s motions for directed verdict and JNOV, and conclude
that the plaintiff’s strict liability claim was timely filed.
B. State Breach of Express Warranty Claim
Next, the defendant argues that, as a matter of law, the warranty in its
sales catalog is not explicit enough to qualify under the future performance
exception enumerated in RSA 382-A:2-725(2) and trigger the discovery rule
provision contained therein. The defendant contends that the general
statement that the windows are coated in preservative that “would protect
‘permanently’ against rot” fails to identify a specific date or period of time
regarding the duration of the warranty and, therefore, fails to qualify as a
promise of future performance for the purpose of invoking the discovery rule.
Therefore, the defendant asserts, the four-year statute of limitations accrued in
1986 upon delivery of the windows and this claim should have been dismissed.
The plaintiff disagrees, arguing that the warranty language is sufficiently
specific to qualify as a promise of future performance and trigger the discovery
rule. Consequently, the plaintiff asserts this claim was timely because he
initiated it within four years of 1998, when he first reasonably should have
known of the pervasiveness of the rot damage and its causal connection to the
“ineffective” preservative.
The scope of the future performance exception is an issue of first
impression for this court. In New Hampshire, an express warranty cause of
action is generally derived from applicable Uniform Commercial Code (UCC)
provisions governing contracts of sale. Brescia v. Great Road Realty Trust, 117
N.H. 154, 157 (1977). Pursuant to the UCC, a state law breach of express
warranty claim “must be commenced within four years after the cause of action
has accrued.” RSA 382-A:2-725(1) (1994).
A breach of warranty occurs when tender of delivery is
made, except that where a warranty explicitly extends
to future performance of the goods and discovery of
the breach must await the time of such performance

9
the cause of action accrues when the breach is or
should have been discovered.
RSA 382-A:2-725(2) (1994). In other words, in a breach of express warranty
claim, the four-year statute of limitations commences upon tender of delivery
except when the warranty “explicitly extends to the future performance of the
goods,” which triggers the application of the discovery rule, thereby tolling the
statute of limitations.
The defendant urges us to apply the majority rule, relying upon Selzer v.
Brunsell Brothers, Ltd., 652 N.W. 2d 806 (Wis. Ct. App. 2002), to support its
assertion that the catalog language is not an explicit warranty of future
performance because it fails to specifically identify an unambiguous specific
period of time during which the warranty applies. Under the majority rule, in
order to be explicit, a warranty of future performance must: (1) specifically
reference a future time in the warranty; and (2) be “unambiguous, clearly
stated, or distinctly set forth.” Western Recreational Vehicles, Inc. v. Swift
Adhesives, Inc., 23 F.3d 1547, 1550 (9th Cir. 1994); see 1 J. White & R.
Summers, Uniform Commercial Code § 11-9 (3d ed. 1988) (noting that
extension of the normal warranty period does not usually occur, even though
all warranties “in a sense apply to future performance of goods”).
However, a minority of jurisdictions has found that warranty language
which fails to identify a specified period of time nevertheless constitutes an
explicit warranty of future performance. For instance, in Rempe v. General
Electric Co., 254 A.2d 577 (Conn. Super. Ct. 1969), the manufacturer sold a
disposal unit to the plaintiff, warranting in pertinent part “that the unit . . .
would work properly during its lifetime.” Rempe, 254 A.2d at 577. The court
ruled that the “lifetime warranty” qualified as a future performance exception,
while also recognizing that the specific time period referenced by the “lifetime
warranty” is a question of fact “to be established by evidence.” Id. at 579.
We decline the defendant’s invitation to adopt the majority rule and
apply the minority rule in this instance. Though it does not identify a specific
period of time in years, this warranty unambiguously and clearly identifies that
the preservative permanently protects against rot and decay. “Permanent” is
defined as “continuing or enduring (as in the same state, status, place) without
fundamental or marked change: not subject to fluctuation or alteration: fixed
or intended to be fixed.” Webster’s Third New International Dictionary 1683
(unabridged ed. 2002). Therefore, we conclude this warranty language is
analogous to the “lifetime warranty” identified in Rempe in that it clearly
conveys the intent that the preservative will protect the wood for a future
period of time—permanently—against a specific problem: rot damage.

10
Furthermore, while the first portion of the catalog warranty refers to
features of the millwork, namely that it is “deep treated in a dry vac process
with pesticide and water repellant solution,” the second portion promises the
preservative will “permanently protect against rot,” language that refers to
future performance. When considered together, as they appear in the catalog,
the two phrases provide a precise description of the process upon which the
promise of permanent protection relies. To interpret this language more
stringently would deprive the consumer of the statutory protections of the
UCC.
We disagree with the Wisconsin Court of Appeals’ determination in
Selzer. While we recognize that RSA 382-A:2-725(2) is also intended “to give
businesses a clearly defined limit on the period of their potential liability,” id. at
813, we conclude that our determination in this case strikes the appropriate
balance. The express language of the warranty would lead a consumer to
believe that the windows were treated with a preservative process that provided
permanent protection against rot. This language clearly refers to the future
performance, and, therefore, we conclude that this warranty is sufficiently
explicit to satisfy the future performance exception, invoke the discovery rule,
and survive, as a matter of law, the defendant’s pre-trial motions. Thus, we
find that the trial court did not err in denying the defendant’s pre-trial motions
and determining that this claim was timely filed.
Our analysis of the discovery rule as it applies to the plaintiff’s strict
liability claim is equally applicable to the breach of express warranty claim.
Accordingly, for the reasons previously stated, we conclude that: (1) the trial
court’s submission of this issue to the jury was neither untenable nor
unreasonable; (2) the jury’s factual determination, that the plaintiff did not
“know, or in the exercise of reasonable diligence should have known, prior to
November 12, 1996, that the windows were defective and that he sustained
property damage as a result,” was supported by the weight of the evidence and
not the result of mistake, impartiality or corruption; and (3) the trial court’s
denial of the defendant’s motions for directed verdict and JNOV were not
unsustainable exercises of discretion.
C. Breach of the Magnuson-Moss Act (Express Warranty)
The defendant also asserts that the plaintiff’s Magnuson-Moss claim was
untimely filed and should have been dismissed. The defendant argues this
federal claim is governed by RSA 382-A:2-725, and proffers the same
arguments it raised regarding its breach of express warranty claim.
The plaintiff counters that section 2310(e) of the Magnuson-Moss Act
defers the date of accrual of a claim until the defendant has notice and

11
opportunity to cure the defect, which, in this case, occurred after the plaintiff
filed a report documenting the window damage with the defendant. The
plaintiff also asserts that federal common law, which generally applies the
discovery rule, governs the date of accrual.
Therefore, we first consider which statute of limitations applies to the
Magnuson-Moss claim. “[W]here a federal statute does not contain an express
limitations period, federal courts apply the most analogous state statute of
limitations.” Lowe v. Volkswagen of America, Inc., 879 F. Supp. 28, 30 (E.D.
Pa. 1995). Because the Magnuson-Moss Warranty Act establishes rules for
warranties of consumer products, it is most closely analogous to the UCC. Id.
Therefore, RSA 382-A:2-725 applies to this claim.
Furthermore, we find no merit in the plaintiff’s assertion that the
applicable statute of limitations does not accrue until after the buyer has given
the seller notice and opportunity to cure pursuant to section 2310 of the
Magnuson-Moss Act. Section 2310 enumerates procedures that must be
followed when filing a claim under the Magnuson-Moss Act. As such, it neither
addresses nor establishes a statute of limitations period and is, therefore, not
applicable to this issue.
Therefore, we conclude this claim was timely filed for the same reasons
stated in our analysis of the timeliness of the breach of express warranty claim.
II. Simultaneous Tort and Contract Claims
The defendant argues that the court erred in denying its motion in limine
and permitting the plaintiff to simultaneously maintain both a strict liability
claim and a breach of the Magnuson-Moss Act claim. Specifically, the
defendant asserts that the availability of a warranty claim prohibits a strict
liability claim for property damage. Since the defendant alleges an error of law,
we will review the trial court’s legal conclusions de novo. See State v. Carbo,
151 N.H. 550, 552 (2004).
As a preliminary matter, we note that the cases upon which the
defendant relies reference the availability of a strict liability claim in the context
of a state law warranty or negligence claim. As such, they do not govern
whether a strict liability claim is available in the context of a federal breach of
warranty claim (the Magnuson-Moss claim).
Further, we are aware of no authority supporting the conclusion that the
availability of a breach of warranty claim precludes a strict liability claim in the
circumstances present here. Nothing precludes the plaintiff from alleging
different theories of recovery. See Phillips v. Verax Corp., 138 N.H. 240, 249

12
(1994) (recognizing plaintiff is entitled to allege different theories of recovery but
may not collect multiple recoveries for the same loss). Moreover, state strict
liability claims and federal Magnuson-Moss claims have been raised in the
same litigation. See Barton v. The Hertz Corp., 35 F. Supp. 2d 1377 (M.D. Fla.
1999); Chase v. Kawasaki Motors Corp., 140 F. Supp. 2d 1280 (M.D. Ala.
2001); Giddings v. Bristol-Myers Squibb Co., 2001 U.S. Dist. LEXIS 7023, at *1
(D. Md. 2001).
Accordingly, we find the trial court did not err in determining the plaintiff
was entitled to simultaneously assert both a strict liability claim and a breach
of the Magnuson-Moss Warranty Act claim.
III. Issues Pertaining to the Strict Liability Claim
A. Prima Facie Case
The defendant asserts that the trial court erred in denying its motion to
set aside the verdict, arguing the plaintiff failed to plead and prove a prima
facie case of strict liability. Specifically, the defendant argues that the plaintiff
failed to: (1) allege the product’s design was unreasonably dangerous; and (2)
introduce evidence of dangerousness at trial.
We have adopted the doctrine of strict liability of manufacturers for
product defects in section 402A (1) of the Restatement (Second) of Torts, which
states: “One who sells any product in a defective condition unreasonably
dangerous to the user or consumer or to his property is subject to liability for
physical harm thereby caused to the ultimate user or consumer . . . .”
Restatement (Second) of Torts § 402A (1) (1965) (emphasis added); see Price,
142 N.H. at 388; Royer v. Catholic Med. Ctr., 144 N.H. 330, 331 (1999). “A
design defect occurs when the product is manufactured in conformity with the
intended design but the design itself poses unreasonable dangers to
consumers.” Price, 142 N.H. at 389 (quotation omitted).
For a product to be unreasonably dangerous, it “must be dangerous to
an extent beyond that which would be contemplated by the ordinary consumer
who purchases it, with the ordinary knowledge common to the community as
to its characteristics.” Vautour v. Body Masters Sports Indus., 147 N.H. 150,
154 (2001) (quotation omitted). The jury determines whether a product is
unreasonably dangerous by using a risk-utility balancing test. Price, 142 N.H.
at 389. Under this approach, “a product is defective as designed if the
magnitude of the danger outweighs the utility of the product.” Vautour, 147
N.H. at 154 (quotations omitted); see Price, 142 N.H. at 389 (detailing the
factors to be considered when implementing the risk-utility balancing test).
However, the plaintiff is not required to present evidence of a safer alternative

13
design. Vautour, 147 N.H. at 156. “[P]roof of an alternative design is neither a
controlling factor nor an essential element that must be proved in every case.”
Id. Rather, the circumstances of each case dictate which factors may be
relevant. Id.
Here, the plaintiff’s amended declaration, dated August 16, 2000, alleges
that the window’s defective condition “created an unreasonable risk” of
property damage to the plaintiff’s home. Given our policy to construe pleadings
liberally, see Canty v. Hopkins, 146 N.H. 151, 155 (2001), we conclude that
this language, when considered in the context of this case, adequately alleges
the defective windows were unreasonably dangerous. We find no support for
the defendant’s assertion that the plaintiff was required to use the exact
phrase, “unreasonably dangerous,” to adequately plead a prima facie case of
strict liability.
At trial, the plaintiff submitted sufficient evidence to support a prima
facie case for strict liability. The trial court admitted portions of pleadings and
other court documents filed by the defendant in a concurrent case, Marvin
Lumber and Cedar Co. v. PPG Industries, 223 F.3d 873 (8th Cir. 2000) (Marvin
I), in which Marvin initiated suit against PPG Industries, the manufacturer of
the defective preservative PILT, for breach of warranty. In these pleadings,
Marvin admitted it was experiencing significant increases in complaints of
wood rot and deterioration in windows treated with PILT. Marvin also asserted
PPG’s products were “defective and unreasonably dangerous” in that they
“allowed the elements to penetrate the structures into which they were
incorporated.” Marvin also argued that PILT was defective and that the rot
damage “caused substantial damage to property other than Marvin’s windows
and doors, including but not limited to the exterior, interior and other
structural and nonstructural components and structures into which Marvin’s
products were incorporated.” These admissions and statements provided
sufficient evidence to satisfy the unreasonably dangerous element of this strict
liability claim.
B. Admissibility of Evidence
The defendant asserts that the court erred in admitting the
aforementioned statements in the first trial because they are irrelevant,
cumulative and highly prejudicial hearsay statements that are inadmissible
pursuant to New Hampshire Rules of Evidence 401, 403, 801 and 802.
We review the trial court’s decisions on the admissibility of evidence
under an unsustainable exercise of discretion standard. State v. Ainsworth,
151 N.H. 691, 694 (2005). Therefore, the defendant must demonstrate that the
trial court’s rulings were clearly untenable or unreasonable to the prejudice of
its case. Id.

14
“Hearsay is an out-of-court statement offered in evidence to prove the
truth of the matter asserted, N.H. R. Ev. 801(c), which is not specifically
excluded as non-hearsay by Rule 801(d).” State v. Batchelder, 144 N.H. 249,
251 (1999). A statement is non-hearsay if it is offered against a party and is “a
statement by a person authorized by the party to make a statement concerning
the subject.” N.H. R. Ev. 801(d)(2)(C); see Simpson v. Wal-Mart Stores, 144
N.H. 571, 576 (1999).
Generally, a party’s pleading in one case may be used as an admission in
another case provided it is material and relevant to the issues in the
subsequent action. 32 C.J.S. Evidence § 402 (1996); 2 J.W. Strong,
McCormick on Evidence § 257, at 142-43 (5th ed. 1999); see William v. Union
Carbide Corp., 790 F.2d 552, 556 (6th Cir. 1986) (recognizing that as party
admissions, pleadings in a prior case were admissible as substantive evidence
under Federal Rule of Evidence 801(d)(2)). In the instant case, the trial court
allowed portions of six pleadings or court proceedings from Marvin I to be
presented to the jury as prior assertions by the defendant that the preservative
was defective, unreasonably dangerous, and caused substantial property
damage to structures in which the windows were installed. While the warranty
at issue in Marvin I was different, the underlying assertions, that the
preservative was defective and caused premature wood rot to Marvin windows
treated with PILT, were the same in both cases. Therefore, we find that the
defendant took a contradictory position in Marvin I to that taken in the instant
action. While the defendant stipulated that the preservative was ineffective in
this case, we cannot conclude this stipulation is synonymous with its
assertions in Marvin I. Given that the defendant’s assertions in Marvin I
admitted elements the plaintiff was required to prove in this case, we conclude
they were inconsistent admissions that were relevant, material and admissible
under Rule 801(d)(2)(C). See N.H. R. Ev. 401 (defining relevant evidence).
We are not persuaded by the defendant’s contention that this evidence is
more prejudicial than probative and ought to have been excluded under Rule
403. This evidence directly addresses two essential elements of the plaintiff’s
strict liability claim. These admissions are also probative of the defendant’s
credibility, as this evidence directly contradicts the defendant’s position in this
case. There is no evidence that the jury in the instant case heard any
testimony regarding the specific details of Marvin I other than the defendant’s
inconsistent admissions.
Moreover, we conclude there is no merit to the defendant’s contention
that the court erred in admitting this evidence without proper foundation.
While arguing this issue in both the pre-trial motion in limine and at trial, the
plaintiff established that the statements in Marvin I were contained in
pleadings that originated with the defendant or its counsel and represented the

15
defendant’s position. On the one occasion that the speaker was not identified
on the record, the plaintiff offered sufficient information regarding the context
of the statements from which the trial court could reasonably conclude that the
statement was made by the defendant’s counsel on its behalf. Additionally, the
defendant offers no support, nor are we aware of any, for its assertion that the
admissions must be sworn statements in order to be admissible.
Accordingly, the trial court’s determinations that: (1) the probative value
of the statements outweighs any prejudice to the defendant; and (2) this non-
hearsay evidence is admissible pursuant to Rule 801(d)(2)(C), are neither
untenable nor unreasonable.
C. Jury Instructions
The defendant argues the court improperly instructed the jury regarding
the elements of the strict liability claim. While conceding that the trial court’s
jury instruction on design defect “was not legally incorrect,” the defendant
argues that the jury instruction should not have been given because the
plaintiff failed to prove that the product design created a defective condition
unreasonably dangerous to the user. We disagree.
“A jury charge is sufficient as a matter of law if it fairly presents the case
to the jury such that no injustice is done to the legal rights of the parties.”
Carignan v. N.H. Int’l Speedway, 151 N.H. 409, 418 (2004). “In a civil case, we
review jury instructions in context.” Id. “We will reverse if the charge, taken in
its entirety, fails to explain adequately the law applicable to the case in such a
way that the jury could have been misled.” Id.
The plaintiff correctly points out that the trial court’s jury instructions
were taken almost verbatim from the defendant’s requested instructions, with
the exception of the second element. The trial court gave the following
instruction:
The plaintiff must prove all of the following six elements
in order to recover under his claim for strict liability.
. . . .
Two. The product was in a defective condition
unreasonably dangerous to the user/consumer, or to
his property.
(Emphasis added.) The emphasized portion of the jury instruction is the only
portion not present in the defendant’s requested instructions. This jury
instruction correctly tracks the language of section 402A (1) of the Restatement
(Second) of Torts. Thus, the trial court’s jury instruction accurately reflects the

16
applicable law, and we uphold the trial court’s jury instruction on the elements
of the strict liability claim.
D. Economic Loss Doctrine
The defendant asserts the plaintiff’s strict liability claim was barred, as a
matter of law, to the extent that it sought damages for economic loss; namely,
costs related to the defective windows themselves, including the costs of
repairing or replacing those windows. Specifically, the defendant contends the
trial court erred in denying its: (1) motion for summary judgment, which
attempted to limit the plaintiff’s recovery to damages other than the economic
losses; and (2) motion to set aside the strict liability verdict, alleging the court
improperly instructed the jury regarding damages.
The plaintiff argues that he is entitled to recover the costs of repairing
and replacing the windows as his reasonably incurred mitigation expenses to
avoid further damage from water leakage due to wood rot in the windows.
We have previously recognized that a plaintiff may not ordinarily recover
damages for purely economic loss in tort or products liability claims. Border
Brook Terrace Condo. Ass’n v. Gladstone, 137 N.H. 11, 18 (1993). In the
products liability context, economic loss is characterized as damage that
occurs to the inferior product itself, through deterioration or non-accidental
causes. Ellis v. Robert C. Morris, Inc., 128 N.H. 358, 364 (1986). Thus, in this
context, economic losses encompass both damage to the defective product itself
and the diminution in value of the product because it is inferior in quality. Id.
However, “[w]hen a defective product accidentally causes harm to persons or
property [other than the defective product itself], the resulting harm is treated
as personal injury or property damage.” Id. (quotation omitted); see
Restatement (Third) of Torts, Products Liability § 21(c) (1997) (recognizing that
in the product liability context, harm to persons or property includes economic
loss if caused by harm to plaintiff’s property other than the defective product
itself).
Here, the plaintiff alleges that he sustained substantial property damage
to his home caused by water leakage from the windows treated with the
defective preservative. Further, in its memorandum of law supporting its
motion for summary judgment, the defendant concedes that the plaintiff
arguably sustained “damage to other property.” The record reveals that when
the summary judgment motion was considered by the trial court, it correctly
found there were disputed material facts related to the origin, amount and
extent of damages sustained by the plaintiff as a result of the window rot and
accompanying water damage, and properly denied the defendant’s motion for
summary judgment. See Carbone v. Tierney, 151 N.H. 521, 527 (2004)
(explaining summary judgment standard).

17
We next consider whether the trial court improperly instructed the jury
regarding the damages available under the strict liability claim. The defendant
argues that the economic loss doctrine precludes an award of damages in strict
liability for costs related to the defective product itself. The defendant asserts
that the trial court’s jury instruction, which identified an exception for
“damages in mitigation,” was erroneous and misled the jury as to the proper
measure of damages.
We will reverse the trial court’s decision if the jury instructions, when
reviewed in context, fail to accurately explain the applicable law in such a way
that the jury could have been misled. See Carignan, 151 N.H. at 418.
The trial court gave the following jury instructions:
The damages the plaintiff is entitled to recover in his
claim for strict liability are limited. If you find that the
plaintiff has proven each of the elements of his strict
liability claim, the only damages he may recover are
damages for the injury, if any, the plaintiff sustained
to property other than the windows themselves unless
these are damages in mitigation.
. . . .
Duty to mitigate. The plaintiff . . . is obligated to
exercise reasonable care and effort to avoid loss and to
minimize damages. He may not recover for losses
which could have been prevented by him making
reasonable efforts without undue risk or expense or
humiliation on his part. He may also recover
expenditures reasonably incurred to avoid or minimize
damages.
In addition to recognizing the economic loss doctrine, we have
determined that a plaintiff has a general duty to mitigate damages. Flanagan
v. Prudhomme, 138 N.H. 561, 575 (1994). The doctrine of avoidable
consequences is a specific type of mitigation available in property torts, which
states that “a party cannot recover damages flowing from consequences which
that party could reasonably have avoided.” Mailloux v. Town of Londonderry,
151 N.H. 555, 563 (2004) (quotations and citation omitted). Therefore, this
doctrine “requires a plaintiff to take all reasonable steps to mitigate damages
after he or she has been tortiously injured.” Id.
While the economic loss doctrine precludes the plaintiff from recovering
damages for the defective products themselves (the windows), there exists a

18
concurrent duty of mitigation, requiring the plaintiff to take reasonable
measures to avoid damages to other personal property flowing from the
defective windows, thereby allowing recovery for attendant mitigation expenses.
To conclude otherwise would lead to an absurd result. Here, the defective
product was allegedly causing ongoing damage to other property and the
plaintiff had a clear duty to mitigate damages flowing from the defective
windows. Thus, to the extent that the new windows were reasonably required
to prevent further water leakage and related property damage, the plaintiff was
entitled to recover the cost of the windows.
The defendant asserts that this allows the plaintiff to circumvent the
economic loss doctrine by allowing him to recover the cost of the defective
product, which is precluded by the economic loss doctrine, as a cost of
mitigation. We disagree. Were we to adopt the defendant’s interpretation of
the economic loss doctrine in circumstances where the defective product is
causing ongoing damage to other property, it would place plaintiffs in the
untenable position of having to choose between potentially absorbing the costs
of mitigating the ongoing damage to other property or doing nothing while the
attendant property damage continues to accrue. We decline to adopt such an
interpretation. The economic loss doctrine and the duty to mitigate are not
mutually exclusive. Rather, they coexist, and in circumstances where the
defective product is causing ongoing damage to other property, we conclude the
plaintiff is entitled to recover reasonable expenditures incurred to avert further
property damage. Restatement (Second) of Torts § 919(2) (1979).
It is within the province of the jury, as fact finders, to determine whether
a portion of the plaintiff’s requested damages were incurred in mitigation.
Furthermore, the jury is presumed to follow the court’s instructions. Nilsson v.
Bierman, 150 N.H. 393, 403 (2003). The jury instructions pertaining to the
economic loss doctrine and the duty to mitigate under the doctrine of avoidable
consequences accurately reflected the applicable law in both instances. The
trial court expressly instructed the jury that the plaintiff may recover damages
“sustained to property, other than the windows [the defective products]
themselves unless these are damages in mitigation.” Additionally, the
subsequent jury instruction accurately describes mitigation as avoiding loss or
minimizing damages as well as explains that such expenditures must be
reasonably incurred. Both instructions were clear, accurate and correctly
interpreted the relationship between the economic loss doctrine and the
plaintiff’s duty to mitigate. Thus, we cannot conclude they misled the jury as
to the proper measure of damages. See Carignan, 151 N.H. at 418.
During trial, the jury heard testimony and evidence regarding the
damages sustained by the plaintiff and then made the determination, pursuant
to the jury instructions, regarding whether the costs pertaining to the
replacement windows themselves constituted economic losses or were

19
reasonably incurred to mitigate further property damages. The trial court
correctly found that whether certain economic losses constitute property
damage pursuant to the doctrine of avoidable consequences is an issue of fact
for the jury to decide. Accordingly, the damages sought by the plaintiff in strict
liability were not barred, as a matter of law, by the economic loss doctrine. We
also conclude there was no error in the trial court’s jury instruction regarding
the measure of damages in the strict liability claim.
E. Remittitur
Next, the defendant contends that the trial court erroneously denied its
motion to reduce damages, arguing the plaintiff’s damage award on the strict
liability claim is conclusively against the weight of the evidence and manifestly
exorbitant. We disagree.
“Direct review of a damages award is the responsibility of the trial judge,
who may disturb a verdict as excessive (or inadequate) if its amount is
conclusively against the weight of the evidence and if the verdict is manifestly
exorbitant.” Transmedia Restaurant Co. v. Devereaux, 149 N.H. 454, 462
(2003). “The proper standard for the trial court’s review of a jury award is
whether the verdict is fair.” Carignan, 151 N.H. at 415. It is the trial judge’s
responsibility to both ensure that the trial is fairly conducted and correct or
vacate what turns out to be an unfair result. Id. “Whether remittitur is
appropriate rests with the trial court’s sound discretion.” Id. “Absent an
unsustainable exercise of discretion, we will not reverse the trial court’s
decision.” Id. On review, we will not attempt to “ascertain or divine the one
and only correct verdict.” Bennett v. Lembo, 145 N.H. 276, 282 (2000). “The
party seeking to modify the verdict’s amount bears a heavy burden.” Id.
At trial, extensive testimony and evidence was admitted regarding the
location of the windows that contained rot, the damage that occurred to other
property as a result of the rot and attendant water leakage, and the
construction that was required to remove and replace the damaged windows.
The jury heard testimony regarding drywall damage due to water leakage as
well as extensive damage to the oak floors. The plaintiff detailed which
expenses were related to the removal and replacement of the damaged
windows, and which were incurred as part of other renovations to the home
and were not included in his requested damages. The jury heard detailed
testimony regarding the necessity of disturbing the surrounding structures in
order to remove one of the damaged dormer windows. The plaintiff also
testified that he chose not to replace the other damaged dormer window after
experiencing the process involved in replacing the first dormer window.
A master carpenter who had worked on the plaintiff’s home testified
regarding the serious leaks that caused warping to the wood floor and rot in

20
some of the sills. This witness also testified that replacing the damaged
windows was necessary to prevent additional property damage. Additionally,
the jury heard testimony that the cost of repairing the attendant damage to the
surrounding structures if the windows had not been replaced would have likely
been greater than the cost of replacing the windows themselves. Both the
master carpenter and the plaintiff testified that no repair work was undertaken
that was not related to the windows that had started to rot or other property
that was damaged by the associated water leaks. Finally, the plaintiff testified
that: (1) he incurred no costs to improve the house beyond its prior condition;
(2) he was aware of no cheaper alternative; and (3) the replacement windows
were not architecturally equivalent to the windows that contained rot damage,
resulting in a house that is not as nice as it was before.
Having previously determined that the economic loss doctrine does not
preclude damages for replacement and/or repair costs that were incurred in
mitigation and pertained to the windows themselves, we conclude there is
sufficient evidence and testimony to support the jury’s damage award. In light
of the evidence presented at trial, we cannot conclude the damages were
manifestly exorbitant. Accordingly, we conclude that the trial judge did not
commit an unsustainable exercise of discretion in upholding the jury award for
the strict liability claim.
IV. Issues Pertaining to the Breach of Warranty and Breach of Magnuson-Moss
Act Claims
A. Failure to Delay the Second Trial
The defendant asserts that the trial court lacked jurisdiction to conduct
the second trial on the Magnuson-Moss and breach of express warranty claims
given the pendency of its appeal of the first trial, which included several issues
that pertained to the Magnuson-Moss and breach of express warranty claims.
It is undisputed that the defendant appealed the plaintiff’s verdict on the
strict liability claim in the first case, while also seeking review of questions
pertaining to the Magnuson-Moss and breach of express warranty claims,
which had resulted in a mistrial. By partial acceptance order dated August 1,
2002, we declined to accept the questions related to the mistried counts. On
January 23, 2003, we subsequently suspended our briefing order and
requested that the parties file memoranda addressing whether the first appeal
should be held in abeyance pending resolution of the remaining issues by the
superior court. After receiving the parties’ memoranda, we left the suspension
of briefing in place, and ordered the defendant to notify us after the
proceedings in superior court had concluded.

21
While our order did not explicitly remand this case to the superior court
to the extent necessary for it to proceed with the second trial, the obvious
implication of our order was to do exactly that. Cf. Rautenberg v. Munnis, 107
N.H. 446, 448 (1966) (when supreme court ascertains that remand is necessary
to complete record or prevent injustice, the case is continued in supreme court
and remanded to the trial court). Accordingly, we conclude there is no merit to
the defendant’s assertion that the trial court lacked jurisdiction to conduct the
retrial of the Magnuson-Moss and breach of warranty claims.
B. Failure to Qualify as a Written Warranty
With respect to both trials, the defendant argues the trial court erred by
denying its motions for directed verdict and JNOV on the plaintiff’s Magnuson-
Moss claim and breach of warranty claims.
1. The Breach of Express Warranty Claim
In addition to appealing the trial court’s denial of its motions for directed
verdict and JNOV, the defendant also argues the trial court erred in partially
granting the plaintiff’s motion for directed verdict and determining that
representations contained in the catalog constituted, as a matter of law, a
warranty for the purposes of the State breach of express warranty claim. The
defendant asserts that the record contains evidence from which a reasonable
juror could find that: (1) the defendant’s sales catalog is an educational
brochure and is, therefore, not a warranty; and (2) the representations in the
catalog were not a part of the basis of the bargain for the windows installed in
the plaintiff’s home.
“A trial court may grant a motion for a directed verdict only if it
determined, after considering the evidence and construing all inferences
therefrom most favorably to the non-moving party, that no rational juror could
conclude that the non-moving party is entitled to any relief.” Dillman v. N.H.
College, 150 N.H. 431, 434 (2003). We uphold a trial court’s ruling on a
motion for directed verdict “when the record supports the conclusion that the
trial court did not commit an unsustainable exercise of discretion.” Id.
RSA 382-A:2-313 provides, in pertinent part:
(1) Express warranties by the seller are created as follows:
(a) Any affirmation of fact or promise made by the seller
to the buyer which relates to the goods and becomes
part of the basis of the bargain creates an express
warranty that the goods shall conform to the
affirmation or promise.

22
(b) Any description of the goods which is made part of the
basis of the bargain creates an express warranty that
the goods shall conform to the description.
RSA 382-A:2-313(1) (1994). To create an express warranty, the seller is not
required to use formal words, such as “warranty” or “guarantee” or have the
specific intention to create a warranty. RSA 382-A:2-313(2). Further, an
affirmation of the value of the goods or a statement of the seller’s opinion or
commendation of the goods does not create a warranty. Id. Therefore, to
create an express warranty, the promise or affirmation of fact must both relate
to the goods and become part of the basis of the contractual bargain. Fassi v.
Auto Wholesalers of Hooksett, 145 N.H. 404, 406 (2000).
We first consider whether the representations in the defendant’s catalog
constitute an affirmation of fact relating to the windows, or whether they
describe a particular feature of the windows as part of an educational
brochure. The representations assert that the windows were deep treated to
permanently protect against rot and decay, which we find constitutes an
affirmation of fact related to the windows. When considered in combination
with the additional detailed description of the exact process and solution used
to treat the wood, the representations are more than a mere opinion or
commendation of the goods. Accordingly, the language of the catalog warranty
satisfies the first prong of the test to determine if it is an express warranty for
the purposes of this claim.
We next consider whether this affirmation of fact was part of the basis of
the bargain. That an affirmation is contained in a brochure, catalogue, or
advertisement does not preclude a finding that it is a warranty provided it
formed part of the basis of the bargain. Interco Inc. v. Randustrial Corp., 533
S.W.2d 257, 262 (Mo. Ct. App. 1976). However, what constitutes “part of the
basis of the bargain” is difficult to define. Liberty Lincoln-Mercury, Inc. v. Ford
Motor Co., 171 F.3d 818, 825 (3d Cir. 1999). “Ordinarily a guarantee or
promise in an advertisement or other description of the goods becomes part of
the basis of the bargain if it would naturally induce the purchase of the
product and no particular reliance by the buyer on such statement needs to be
shown.” Cipollone v. Liggett Group, Inc., 893 F.2d 541, 563 (3d Cir. 1990).
Authorities are divided as to whether a buyer’s reliance upon the affirmation is
a necessary element of proving that the affirmation was part of the basis of the
bargain under section 2-313 of the UCC as codified in RSA 382-A:2-313. Id. at
564; see 2 L. Frumer & M. Friedman, Products Liability § 9.02(2), at 9-27
(2000) (recognizing the official comments to the UCC provide little guidance to
the relationship between the basis of the bargain and reliance). This is a
matter of first impression for this court.

23
Section 2-313 does not define “part of the basis of the bargain.” The
UCC is an adaptation of section 12 of the Uniform Sales Act (USA) and is
basically the same except for the replacement of the USA’s express reliance
requirement with the UCC’s “part of the basis of the bargain” requirement.
Cipollone, 893 F.2d at 565; see 1 J. White & R. Summers, Uniform Commercial
Code § 9-5, at 448 (1995). Consequently, section 2-313 omits any reference to
reliance; instead, it requires only that the affirmation become “part of the basis
of the bargain.” Id. at 449. The extent to which the law has been changed to
remove the reliance requirement is unclear. Id.
A majority of jurisdictions continues to find that reliance is an essential
element of an express warranty claim. Cipollone, 893 F.2d at 564; Torres v.
Northwest Eng’g Co., 949 P.2d 1004, 1013 (Haw. Ct. App. 1998); see Frummer,
supra at 9-28 (collecting cases). A minority of jurisdictions has adopted the
opposite approach, and eliminated the reliance requirement in an effort to
satisfy the “part of the basis of the bargain” language in the UCC. See
Frummer, supra at 9-28; Torres, 949 P.2d at 1013. This interpretation
supports the underlying purpose of the law of warranty, which is to determine
what it is the seller has agreed to sell, thereby making reliance irrelevant. See
RSA 382-A:2-313 comment 4. As some jurisdictions have noted, “this
interpretation drains all substantive meaning from the phrase ‘basis of the
bargain,’” thereby allowing the buyer to collect even if the buyer was unaware
of the existence of the warranty. Cipollone, 893 F.2d at 566-67.
Both of these positions are inconsistent with the official comments to
section 2-313 of the UCC. Official Comment 3 states in pertinent part:
In actual practice affirmations of fact made by the
seller about the goods during a bargain are regarded
as part of the description of those goods; hence no
particular reliance on such statements need be shown
in order to weave them into the fabric of the
agreement. Rather, any fact which is to take such
affirmations, once made, out of the agreement requires
clear affirmative proof. The issue normally is one of
fact.
(Emphasis added.) Furthermore, comment 8 states that “all of the statements
of the seller [become part of the basis of the bargain] unless good reason is
shown to the contrary.” (Emphasis added.) Comment 7 states that “the precise
time when words of description or affirmation are made . . . is not material.
The sole question is whether the language . . . [is] fairly to be regarded as part
of the contract.” Thus, the majority position that reliance is an essential
element under section 2-313 is clearly contrary to the plain language of section
2-313 and comment 3. Likewise, the minority position eliminating any reliance

24
requirement is also contrary in that it nullifies the phrase “part of the basis of
the bargain,” thereby allowing a buyer to recover on a breach of warranty claim
without being aware of the existence of the statements when the bargain was
being negotiated.
A few jurisdictions have adopted an intermediate third approach,
concluding that under section 2-313, once the buyer has become aware of the
affirmation of fact or promise, the statements are presumptively part of the
basis of the bargain. Id. at 568; Torres, 949 P.2d at 1015. The burden then
shifts to the seller to prove, by clear affirmative proof, that the resulting
bargain did not rest at all on the seller’s statements. Torres, 949 P.2d at 1015;
see Cipollone, 893 F.2d at 568; Keith v. Buchanan, 220 Cal. Rptr. 392, 398
(Dist. Ct. App. 1985) (seller’s warranty is presumptively part of the basis of the
bargain, and it is the seller’s burden to prove that the resulting bargain did not
rest at all on the representation); Bysom Enter. v. Peter Carlton Enter., 641
N.E.2d 838, 843 (Ill. App. Ct. 1994) (warranties in a purchase agreement are
prima facie evidence that they are part of the bargain, and the burden of
disproving this is on the seller). The issue of whether the seller has proved, by
clear affirmative proof, that the seller’s statements were not at all part of the
basis of the bargain is one of fact. Torres, 949 P.2d at 1014; RSA 382-A:2-313
comment 3; see Chellman v. Saab-Scandia AB, 138 N.H. 73, 82 (1993)
(recognizing whether advertising creates an express warranty is a question for
the jury).
We adopt the intermediate approach when deciding whether
representations in a catalog or brochure constitute part of the basis of the
bargain in a breach of express warranty claim. We are persuaded that this
approach strikes the proper balance. The plain language of section 2-313
requires that the affirmation be part of the basis of the bargain, and the
corresponding official comments make it clear that “no particular reliance on
such statements need be shown [by the buyer].” RSA 382-A:2-313 comment 3
(emphasis added). Thus, the buyer need not show that he or she would not
have entered into the agreement absent the seller’s statements. Torres, 949
P.2d at 1014. Nor is the buyer required to show that the seller’s statements
were a dominant factor inducing the agreement. Id. at 1015.
In order to become part of the basis of the bargain, the buyer must have
been aware of the affirmation of fact or promise at some point in the bargaining
process. Cipollone, 893 F.2d at 567; Torres, 949 P.2d at 1015. To satisfy this
requirement, a plaintiff claiming breach of express warranty based upon a
representation in a catalog or brochure would have to prove, at a minimum,
that he or she read, heard, saw or was otherwise aware of the representation in
the catalog or brochure. Torres, 949 P.2d at 1015; Cipollone, 893 F.2d at 567.
Therefore, the dispositive issues are: whether the statements were of the type

25
that would naturally induce the purchase of the product; and whether the
buyer was aware of the statements during the negotiating process.
The presumption that a seller’s statement becomes a part of the basis of
the bargain can be overcome. Torres, 949 P.2d at 1015. For instance, “the
buyer’s actual knowledge of the true condition of the goods prior to the making
of the contract may make it plain that the seller’s statement was not relied
upon as one of the inducements for the purchase.” Id. (quotations and
citations omitted). Additionally, a seller’s statement will not be presumed to be
part of the basis of the bargain when the buyer knew the statement to be false
or was not influenced by it, or when the statement was not made until after the
sale of the product. Id.
In this case, the trial court determined that the representations in the
catalog constituted an express warranty, pursuant to RSA 382-A:2-313, as a
matter of law. The trial court reasoned that there was “no reasonable question
that the catalogue . . . is a catalogue that existed at the time that the plaintiff
purchased his windows.” The court found that the representation regarding
permanent protection of the windows “becomes a part of the goods that were
sold and, therefore, a part of the basis of the bargain.” We affirm the trial
court’s determination that the representations in the catalog assert that the
windows were permanently protected against rot damage. We also affirm its
ruling that this representation constitutes an affirmation of fact that would
qualify as an express warranty under the UCC, provided it was part of the
basis of the bargain. However, whether the representation was part of the
basis of the bargain is a factual determination that should have been decided
by the jury. See Werner v. Montana, 117 N.H. 721, 726 (1977) (analyzing
evidence, which was presented at trial, from which the fact finder could
conclude that the affirmations constituted an express warranty); Chellman,
138 N.H. at 82.
Here, the jury heard evidence from which it could have concluded that
the representations in the catalog were part of the basis of the bargain. For
instance, the plaintiff testified that he relied upon representations in the
catalog regarding the durability of windows manufactured by Marvin. However,
he also testified that all of his paperwork pertaining to the construction of his
residence was destroyed in 1987, and the catalog admitted at trial was a copy
obtained from a worker involved in his home construction. While the plaintiff
could not identify the exact document that he saw in 1986, he testified that he
did “see what Marvin had available, and the only thing that Marvin had
available was the catalog that showed each of the windows, the stock windows
that were in place . . . .” While this evidence could support the trial court’s
determination that the catalog representations were part of the basis of the
bargain, given the credibility issues raised, it is not so overwhelmingly in favor

26
of the plaintiff that no contrary verdict could stand. Therefore, we conclude
that this determination is a factual one for the jury.
Accordingly, we conclude the trial court erred in directing a verdict on
the question of whether the catalog representations were part of the basis of
the bargain and thus constituted an express warranty pursuant to RSA 382-
A:2-313. We vacate the verdict on the breach of express warranty claim, and
remand for further proceedings consistent with this opinion.
2. Magnuson-Moss Claim
The defendant asserts that the catalog warranty does not qualify as a
written warranty under the Magnuson-Moss Act because it fails to specify that
the windows will meet a specified level of performance over a specified period of
time as required by 15 U.S.C.A. § 2301(6)(A).
The Magnuson-Moss Act (the Act) is a remedial statute designed to
protect consumers from deceptive warranty practices. Skelton v. General
Motors Corp., 660 F.2d 311, 313 (7th Cir. 1981); see 2 L. Frumer & M.
Friedman, Products Liability § 9.06(1), at 9-73 to 9-74 (1998). It applies to
written warranties as well as “implied warrant[ies] arising under State law (as
modified by sections 2308 and 2304(a) of this title) in connection with the sale
by a supplier of a consumer product.” 15 U.S.C.A. § 2301 (6) & (7)(1997).
While the Act does not require a manufacturer or seller to extend a warranty
with a product, “any ‘written warranty’ offered with a consumer product is
subject to the Act’s regulatory requirements.” Skelton, 660 F.2d at 314. The
purpose of the Act is “to improve the adequacy of information available to
consumers, prevent deception, and improve competition in the marketing of
consumer products.” 15 U.S.C.A. § 2302(a).
Section 2310(d)(1) creates a civil cause of action for a consumer who is
damaged by a supplier, warrantor, or service contractor who fails to comply
with its obligations under a “written warranty.” 15 U.S.C.A. § 2310(d)(1). The
Act defines “written warranty,” in pertinent part, as:
any written affirmation of fact or written promise made
in connection with the sale of a consumer product by a
supplier to a buyer which relates to the nature of the
material or workmanship and affirms or promises that
such material or workmanship is defect free and will
meet a specified level of performance over a specified
period of time . . . which . . . becomes part of the basis
of the bargain between the supplier and a buyer for
purposes other than resale of such product.

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15 U.S.C.A. § 2301(6)(A). Representations regarding product information
disclosures and features of a particular product, however, such as energy
efficiency ratings of electrical appliances and care labeling of wearing apparel,
do not qualify as written warranties for purposes of the Act. 16 C.F.R. 700.3
(2005) (interpreting the written warranty requirement under the Act).
The representations contained in the catalog stated that “all exterior
wood [in the windows] is deep treated in a dry vac process with a pesticide and
water repellant solution to permanently protect against rot and decay.” This
language identifies a level of performance; namely, that the preservative will
perform at such a level that the windows do not rot. It also identifies a
specified period of time—permanently—which we have previously determined is
analogous to the life of the product. To conclude otherwise would circumvent
the basic purpose of the Act—to protect consumers from deceptive warranty
practices. The express language of the catalog warranty, and the use of the
adverb permanently, would lead a consumer to conclude that a window treated
with the preservative, in the particular manner described, would not rot during
its lifetime. Moreover, the detailed description of the process used to provide
the permanent protection further supports this determination. Therefore, the
representations in the catalog constitute a written warranty for purposes of the
Magnuson-Moss claim.
The defendant relies upon Skelton, 660 F.2d 311 (7th Cir. 1981), to
support its assertion that the catalog warranty does not comply with the Act’s
requirements for a written warranty. In Skelton, the basis of the plaintiffs’
claim was brochures, manuals, consumer advertising and other forms of
communications that represented that certain automobiles contained
particular transmissions (THM 350), or “transmissions of similar quality and
performance . . . and that [such transmissions] would meet a specified level of
performance.” Skelton, 660 F.2d at 312. The plaintiffs alleged that General
Motors’ undisclosed substitution of inferior transmissions was actionable
under the Act. Id. at 313.
The district court concluded that this warranty did not fall within the
Act’s definition of “written warranty” because “it did not affirm that the
transmission would ‘meet a specified level of performance over a specified
period of time.’” Id. at 316. The Seventh Circuit Court of Appeals upheld the
district court’s determination that a product information disclosure without a
specified time period to which the disclosure relates is not a written warranty.
In a footnote, however, the court acknowledged that a representation that a
“transmission would perform like a THM 350 transmission for the life of the
transmission” would constitute a warranty for the purposes of the Act. Thus,
the court recognized that representations referencing a lifetime meet the
“specified period of time” requirement in the Act. See Horton Homes, Inc. v.
Brooks, 832 So. 2d 44, 49 (Ala. 2001) (recognizing that a representation that a

28
product was “built for a lifetime” constitutes a written warranty for the
purposes of a breach of the Act). Thus, Skelton is consistent with our ruling.
Similar to RSA 382-A:2-313, which requires an express warranty to be
part of the basis of the bargain, the Act also requires that a written warranty be
part of the basis of the bargain. The criteria for determining whether a
representation was “part of the basis of the bargain” is the same in both cases.
Therefore, having previously determined that whether the catalog warranty was
part of the basis of the bargain was an issue of fact for the jury’s
determination, we also vacate and remand this issue to the trial court for
further proceedings consistent with this opinion.
In the interest of judicial economy, we address the defendant’s remaining
issues to the extent they are likely to arise upon remand. See State v. Tierney,
150 N.H. 339, 345 (2003).
C. Exclusion of Evidence of the One-Year Warranty
The defendant argues that the trial court erroneously granted the
plaintiff’s motion in limine to exclude all evidence of the one-year warranty,
which allegedly applied to, and was purportedly packaged with, the windows
when they were delivered to the plaintiff’s home for installation in 1986. The
defendant asserts this evidence was relevant to refute the plaintiff’s assertion
that the catalog warranty was part of the basis of the bargain.
In addition to ruling that evidence of the alleged one-year warranty was
irrelevant, cumulative, and potentially confusing to the jury, the trial court
ruled that it was barred by the doctrine of judicial estoppel.
We review the trial court’s determination regarding the admissibility of
evidence under an unsustainable exercise of discretion standard. See
Ainsworth, 151 N.H. at 694.
The doctrine of judicial estoppel has not yet been adopted as part of New
Hampshire common law. While we previously considered this doctrine in In re
Pack Monadnock, 147 N.H. 419 (2002), we had no need to decide whether or
not to adopt it based upon the facts and circumstances of that case. In re Pack
Monadnock, 147 N.H. at 426. However, the circumstances of this case are
distinguishable from In re Pack Monadnock, and we now adopt and apply the
doctrine of judicial estoppel.
“Where a party assumes a certain position in a legal proceeding, and
succeeds in maintaining that position, [it] may not thereafter, simply because
[its] interests have changed, assume a contrary position . . . .” New Hampshire
v. Maine, 532 U.S. 742, 749 (2001); see In re Pack Monadnock, 147 N.H. at

29
425-26. The purpose of this doctrine is “to protect the integrity of the judicial
process by prohibiting parties from deliberately changing positions according to
the exigencies of the moment.” New Hampshire v. Maine, 532 U.S. at 749-50
(citations omitted). While the circumstances under which judicial estoppel may
be invoked vary with each situation, the court considers the following three
factors: (1) whether the party’s later position is clearly inconsistent with its
earlier position; (2) whether the party has succeeded in persuading a court to
accept that party’s earlier position; and (3) whether the party seeking to assert
an inconsistent position would derive an unfair advantage or impose an unfair
detriment on the opposing party if not estopped. Id. at 750-51; In re Pack
Monadnock, 147 N.H. at 426.
We first consider whether the defendant’s position in this case is clearly
inconsistent with its earlier position in the related Marvin I case. In Marvin I,
Marvin argued that a warranty longer than one year applied to its windows that
were treated with PILT. Here, Marvin is seeking to admit evidence that a one-
year warranty is applicable to the windows. This position is inconsistent with
its prior position in Marvin I. In this case, the trial court was presented with
portions of redacted pleadings and trial testimony proffered by Marvin’s
counsel, or its witnesses, in Marvin I, which support the trial court’s
conclusion that the defendant took a contrary and inconsistent position
regarding the existence and applicability of the alleged one-year warranty in
that case. Thus, we conclude the defendant’s position in this case is clearly
inconsistent with its earlier position in Marvin I.
Next, we consider whether the defendant succeeded in persuading the
Marvin I court to accept its earlier position. We conclude it did. In Marvin I,
after several of its claims survived the pre-trial motions, the defendant
ultimately prevailed at trial on a theory alleging that it relied upon
representations that the preservative would protect the wood products for a
period longer than the one-year warranty it was arguing in this case.
Furthermore, the president of the Marvin Windows division testified that it
knew of these representations and incorporated them in its “marketing
materials.” Given that it prevailed in Marvin I, and collected damages in excess
of one hundred million dollars, the defendant was successful in arguing its
earlier position.
Finally, we conclude that the defendant would derive an unfair
advantage from prevailing in Marvin I, based, in part, upon its assertion that it
was incurring costs related to customer claims arising from the leaky and
rotten windows, while denying its liability in such claims. Therefore, after
considering and applying the factors to this case, we conclude the newly
adopted doctrine of judicial estoppel is applicable in this instance.

30
While the defendant argues that the portions of redacted pleadings and
trial testimony from Marvin I were taken out of context and misleading, the
trial court concluded that “the only way that Marvin could prevail in that case
would be to get out of that one year period,” finding that “Marvin did take a
position there that is different than the position it is taking here on the one
year limited warranty.” We agree that the record contains sufficient evidence to
find that the defendant’s position in the instant case was clearly inconsistent
with its stated position in Marvin I. This conclusion is neither untenable nor
unreasonable in light of the pleadings and transcripts presented to the trial
court.
Moreover, the defendant benefited from refuting the applicability of the
alleged one-year warranty in Marvin I, and prevailed in that case, collecting a
substantial damage award based, in part, upon its anticipated obligation to
remedy the harm its customers would sustain as a result of the defectively
treated windows. Thus, we find it would be manifestly unjust to allow the
defendant to assume a contrary position in this case. Accordingly, we affirm
the trial court’s finding that evidence of the alleged one-year warranty was
inadmissible at trial.
D. General Jury Instructions
Next, the defendant argues the trial court failed to properly instruct the
jury regarding the appropriate burden of proof, the elements of, and the
damages available under the Magnuson-Moss and breach of warranty claims.
We will reverse if a jury instruction, taken in its entirety, fails to adequately
explain the applicable law in such a way that the jury could have been misled.
Carignan, 151 N.H. at 418.
With respect to the Magnuson-Moss claim, the defendant asserts the trial
court erroneously failed to instruct the jury regarding the elements necessary
to determine whether the catalog warranty constituted a “written warranty” for
purposes of the Act. We disagree.
At the close of the defendant’s case, the trial court determined that, as a
matter of law, the catalog warranty constituted a “written warranty” of future
performance for the purposes of the Act. We previously concluded that this
ruling was neither unreasonable nor untenable. However, we also determined
that the trial court erred in removing the issue of whether the warranty formed
part of the basis of the bargain from the jury. Therefore, we conclude that the
trial court’s jury instructions regarding the Magnuson-Moss claim accurately
reflect the applicable law in this instance, except that on remand, the trial
court must include instructions regarding the basis of the bargain.

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With respect to the breach of warranty claim, the defendant argues the
trial court erroneously failed to instruct the jury that: (1) the permanent
protection statement in the defendant’s sales catalog had to be the basis of the
bargain between the plaintiff and the defendant; and (2) the plaintiff was
required to rely on the representations in the catalog in order to constitute a
warranty for the purposes of this claim.
We previously determined that in order to constitute an express
warranty, pursuant to RSA 382-A:2-313, the affirmation of fact or promise
must become a part of the basis of the bargain, which is a factual
determination within the province of the jury. Here, the trial court erroneously
determined, as a matter of law, that the catalog warranty formed the basis of
the bargain and consequently erroneously failed to include a jury instruction
regarding this element. However, the trial court did not err in failing to
instruct the jury that the plaintiff was required to prove reliance upon the sales
warranty, as we previously determined that reliance is not an element
necessary to prove the representations constituted a warranty for the purposes
of this claim.
E. Jury Instruction Regarding Damages
The defendant argues the trial court failed to properly instruct the jury
regarding the correct measure of damages under both the breach of express
warranty claim and the claim under the Act. With respect to the breach of
warranty claim, the defendant asserts that the trial court improperly omitted
an instruction on the usual and customary measure of damages, substituting
instead the plaintiff’s repair and replacement costs without including an
instruction that the defendant was entitled to an offset or credit for the
plaintiff’s use of the windows.
We begin by analyzing the jury instructions under RSA 382-A:2-714 and
:2-715, the law applicable to the breach of express warranty claim. RSA 382-
A:2-714(2) provides, in pertinent part, that “[t]he measure of damages for
breach of warranty is the difference . . . between the value of the goods
accepted and the value they would have had if they had been as warranted
. . . .” However, “any incidental and consequential damages under the next
section may also be recovered.” RSA 382-A:2-714(3) (1994). Consequential
damages include “injury to person or property proximately resulting from any
breach of warranty.” RSA 382-A:2-715(2)(b) (1994) (emphasis added).
Here, the plaintiff did not seek direct damages under section 2-714(2).
Rather, he sought consequential damages for injury to his property that
proximately resulted from the defendant’s defective windows. Any costs
pertaining to the windows themselves were incurred to mitigate further
property damage resulting from the windows that contained rot. The plaintiff

32
correctly points out that repair and replacement costs are recoverable under
RSA 382-A:2-715(3). See Int’l Adhesive Coating Co., Inc. v. Bolton Emerson
Int’l, Inc., 851 F.2d 540, 546 n.7 (1st Cir. 1988).
After reviewing the jury instructions, we conclude they accurately
incorporated the applicable portions of RSA 382-A:2-714 and :2-715. With
respect to damages, the jury was adequately instructed regarding: the
plaintiff’s burden of proof; repair and replacement costs; foreseeability of the
damages; and the plaintiff’s duty to mitigate damages. The trial court also
instructed the jury that the plaintiff “can’t recover more than once for the same
loss” and that the damages must “fairly and reasonably compensate the
plaintiff for his loss.” Additionally, the trial court properly determined that the
defendant was not entitled to receive a jury instruction regarding direct
damages given that the plaintiff was not seeking recovery for the value of the
damaged windows themselves, other than as part of his repair and replacement
costs to prevent further damage to other property.
To the extent that the defendant asserts the trial court’s jury instruction
incorrectly stated the correct measure of damages under the Act, we decline to
address this argument. In a footnote, the defendant argued that the trial court
erroneously refused to give lengthy jury instructions regarding damages arising
from the Magnuson-Moss claim. However, other than asserting that the trial
court’s jury instructions “incorrectly stated the applicable law,” and generally
referencing 15 U.S.C.A. § 2311(b), the defendant failed to adequately brief this
issue. Therefore, we find this issue is not sufficiently developed for our review.
ACG Credit Co. v. Gill, 152 N.H. 260, 264 (2005).
F. Jury Instruction Regarding Statute of Limitations
The defendant also argues the trial court’s jury instruction on the statute
of limitations misstated the applicable law with respect to the burden of proof.
Specifically, the defendant asserts that the trial court failed to instruct the jury
that the plaintiff was required to prove that the warranty constituted a
warranty of future performance of goods before the jury could consider whether
the discovery rule tolled the statute of limitations.
The trial court gave the following jury instruction:
The law provides that a plaintiff must bring his lawsuit
within a certain time period. This is often referred to
as the statute of limitations. In this case Mr. Kelleher
was required to commence his lawsuit within four
years after the date when he discovered or should have
discovered Marvin’s alleged breach of warranty. Mr.
Kelleher commenced this action on November 12,

33
1999. Thus, he is barred from recovering on either of
the claims asserted here if he discovered or should
have discovered Marvin’s breach of warranty prior to
November 12, 1995. Mr. Kelleher has the burden of
proving by a preponderance of the evidence that he
brought this suit within the applicable time frame.
We previously determined that the trial court properly found that the warranty
at issue in this case was a warranty of future performance of goods for the
purposes of the statute of limitations applicable to both the breach of express
warranty and Magnuson-Moss claims. Thus, the trial court properly denied
the defendant’s requested jury instructions on this issue, as this is a matter of
law not within the province of the jury. Moreover, we find the foregoing jury
instruction accurately and adequately explains the application of the discovery
rule, and, therefore, we decline to reverse the trial court on this issue.
G. Attorney’s Fees
Finally, the defendant challenges the trial court’s award of attorney’s fees
pursuant to the Act. The Act provides for a discretionary award of attorney’s
fees to a prevailing party. 15 U.S.C.A. § 2310(d)(2) (1997). In light of our
decision to vacate and remand the Magnuson-Moss claim we also vacate the
award of attorney’s fees.
V. Plaintiff’s Cross-appeal
The plaintiff appeals the trial court’s dismissal of his breach of implied
warranty claim under the Act on the grounds that it was barred by the statute
of limitations. The plaintiff argues this was error because: (1) the limitations
period cannot begin to run until the statutory prerequisite of notice and failure
to cure have occurred, which in this case was in 1998; and (2) federal common
law, which incorporates the discovery rule, governs a claim arising under a
federal statute.
The standard of review when considering a motion to dismiss is “whether
the allegations in the plaintiff’s pleadings are reasonably susceptible of a
construction that would permit recovery.” Karch v. Baybank FSB, 147 N.H.
525, 529 (2002) (citation omitted). We “assume the plaintiff’s pleadings to be
true and construe all reasonable inferences drawn therefrom most favorably to
[him].” Id.
In dismissing the plaintiff’s breach of implied warranty claim under the
Act, the trial court correctly determined that: (1) this claim is barred by RSA
382-A:2-725, the applicable statute of limitations; and (2) 15 U.S.C.A. §§

34
2308(b) & 2310 do not extend or alter the limitations period. Under the Act, an
implied warranty is defined as “an implied warranty arising under State law . . .
in connection with the sale by a supplier of a consumer product.” 15 U.S.C.A.
§ 2301(7)(1998) (emphasis added). State breach of implied warranty claims
arise under the UCC. See 17 Am. Jur. 2d Consumer Product Warranty Acts §
12 (1990). Thus, the applicable statute of limitations is RSA 382-A:2-725 and
not the limitations period under federal common law. See Lowe, 879 F. Supp.
at 30 (applying the most analogous state statute of limitations).
Pursuant to RSA 382-A:2-725(1) & (2), the four-year limitations period
for breach of an implied warranty accrues at tender of delivery unless it is a
warranty of future performance, which then triggers the discovery rule.
However, an implied warranty cannot “explicitly” extend to the future
performance of goods by virtue of being “implied.” See Tourist Village Motel v.
Mass. Eng. Co., Inc., 801 F. Supp. 903, 906 (D.N.H. 1992); Nelligan v. Tom
Chaney Motors, Inc., 479 N.E.2d 439, 443 (Ill. App. Ct. 1985) (recognizing
discovery rule applicable to express warranties under section 2-725 of the UCC
has been held inapplicable to breach of implied warranty claims).
Furthermore, as previously stated, section 2310 enumerates procedures
that must be followed when filing a claim under the Act. As such, it neither
addresses nor establishes a statute of limitations period and is, therefore, not
applicable to this issue.
Accordingly, we conclude the trial court properly dismissed the plaintiff’s
claim alleging breach of implied warranty under the Act.
Affirmed in part; vacated
in part; and remanded.
NADEAU, DALIANIS and DUGGAN, JJ., concurred.