No. 20-1986

ARMAND BESSETTE,

Plaintiff, Appellant,

v.

IKO INDUSTRIES, INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Timothy S. Hillman, U.S. District Judge]

Before

Lynch, Kayatta, and Barron, Circuit Judges.

Stephen Gordon, with whom Stephen Gordon & Associates was on brief, for appellant. Robert N. Meltzer, with whom Mountain States Law Group was on brief, for appellee.

March 29, 2022 BARRON, Circuit Judge. Armand Bessette appeals the grant of summary judgment to IKO Industries, Inc. ("IKO") on the Massachusetts state-law contractual and consumer-protection claims that he asserted against the company with respect to roofing shingles that it manufactured and that he purchased in 1999. We affirm.

I.

We begin by recounting the travel of the case and the following facts which, for purposes of this appeal, are not in dispute. Bessette purchased the roofing shingles in question for his home in April and May of 1999 from Howe Lumber ("Howe") in East Brookfield, Massachusetts. He installed them in June of that year. Invoices from Howe, which Bessette received when he took delivery of the shingles, list the shingles as "WEATHERWOOD CHATEAU 30YR."

Years later, on September 21, 2016, Bessette completed IKO'S "Homeowner's Inquiry Survey" form. In a field marked, "Describe Concern with Product," Bessette wrote: "shingles are falling apart . . . pictures tell all!" The form indicates that IKO's warranty services department received the completed form on September 27, 2016.

IKO responded with an offer to pay Bessette $473.55. He replied on February 16, 2017, with a demand letter for $29,000, the "estimated expense to replace the roof," that he sent "pursuant

- 2 - to" Massachusetts consumer protection law Mass. Gen. Laws ch. 93A ("Chapter 93A"). IKO replied a little less than two weeks later by restating its offer to pay $473.55. IKO asserted in the reply that "the sole and exclusive contract between the parties" was IKO's "Limited Warranty."

IKO's Limited Warranty from June 1999 states in part that "IKO Industries Inc. . . . warrants to the original consumer- purchaser that the shingles listed . . . are free from manufacturing defects that result in leaks." It lists the "CHATEAU" model of shingles as having a "Warranty Period" of "30" years, and it provides that "[a]fter the first five (5) years from completion of installation, IKO's maximum liability toward repairs or replacement shall be a prorated amount of the current value of the shingles only," computed according to a set proration formula.1 In addition, the Limited Warranty states, "NO ACTION FOR BREACH OF THIS LIMITED WARRANTY SHALL BE BROUGHT LATER THAN ONE (1) YEAR AFTER ANY CAUSE OF ACTION HAS ACCRUED."

1 Bessette denies that the Limited Warranty applies in his case. Bessette moved to strike the affidavit to which this warranty specimen was appended. The Magistrate Judge's report and recommendations, adopted by the District Court, recommended denying this motion to strike on mootness grounds, reasoning, "the [Magistrate Judge] recommends granting IKO's motions on grounds not related to the Limited Warranty. Therefore, the affidavits are immaterial to the . . . report and recommendation." Bessette v. IKO Indus., Inc., No. 4:19-CV-40017, 2020 WL 6110943, at *5 (D. Mass. Aug. 18, 2020).

- 3 - In November 2018, after having replaced the shingles on the roof of his home at a cost of $20,000, Bessette filed suit against IKO in