Volovetz v. Tremco Barrier Solutions, Inc.

[Cite as Volovetz v. Tremco Barrier Solutions, Inc., 2016-Ohio-7707.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Boris Volovetz et al., :
Plaintiffs-Appellants, :
No. 15AP-1056
v. : (C.P.C. No. 14CV-6750)
Tremco Barrier Solutions, Inc. et al., : (ACCELERATED CALENDAR)
Defendants-Appellees. :
D E C I S I O N
Rendered on November 10, 2016
On brief: Gillett Law Office, LLC, and Gary A. Gillett, for
appellants. Argued: Gary A. Gillett.
On brief: Zeiger, Tigges & Little LLP, Matthew S. Zeiger,
and Zachary M. Sugarman, for appellee Tremco Barrier
Solutions, Inc. Argued: Matthew S. Zeiger.
On brief: Lane Alton, Joseph A. Gerling and Eric S. Bravo,
for appellee North Central Insulation, Inc. Argued: Eric S.
Bravo.
APPEAL from the Franklin County Court of Common Pleas
KLATT, J.
{¶ 1} Plaintiffs-appellants, Boris and Inna Volovetz, appeal judgments of the
Franklin County Court of Common Pleas granting summary judgment to defendants-
appellees, Tremco Barrier Solutions, Inc. ("Tremco") and North Central Insulation, Inc.
("NCI"). For the following reasons, we affirm in part and reverse in part the judgment
granting Tremco summary judgment, and we reverse the judgment granting NCI
summary judgment.
No. 15AP-1056 2
{¶ 2} The Volovetzes own a house located at 6883 Jersey Drive in New Albany,
Ohio. During construction of the house, Boris Volovetz acted as the general contractor.
{¶ 3} Volovetz contracted with NCI to insulate the Jersey Drive house. Michael
White, a salesperson with NCI, proposed that NCI also waterproof the house's basement.
Volovetz and White then discussed terms for the purchase of a Tuff-N-Dri basement
waterproofing system and installation of that system around the exterior of the house's
foundation. The Tuff-N-Dri basement waterproofing system, which is sold by Tremco,
consists of two components: a spray-on polymer modified asphalt emulsion called Tuff-
N-Dri and fiberglass foundation boards called Warm-N-Dri. Installation of the Tuff-N-
Dri system entails applying the Tuff-N-Dri asphalt emulsion to the foundation walls to
create a waterproof membrane and placing the Warm-N-Dri boards over the membrane.
{¶ 4} During the initial negotiations between Volovetz and White, Volovetz
requested a 50-year warranty on the Tuff-N-Dri system. White informed Volovetz that
the manufacturer only offered a 30-year warranty. White assured Volovetz that a 30-year
warranty provided him with sufficient protection because "if you have any issues it will
occur in the first couple of years." (Ex. 38, Volovetz Dep.) Volovetz then acceded to a 30-
year warranty.
{¶ 5} On May 10, 2013, White sent Volovetz an email with two PDF files attached.
The first attachment was entitled "6883 jersey dr.pdf" and the second "WP NOTICE –
v05-08-12.pdf." (Ex. 6, Volovetz Dep.) The body of the email stated, "Boris[:] Here is
you[r] quote and a summary of the waterproofing[.] I need you to sign both and send
back[.]" Id. The PDF file entitled "6883 jersey dr.pdf" contained a pre-printed NCI quote
form that White had completed with the terms for waterproofing the basement of the
Jersey Drive house. The quote provided:
NCI will WATERPROOF THE FOUNDATION of this home by
installing Tuff-[N]-Dri Asphalt-based Spray-on Membrane
along with 1 3/16" Ri[d]gid Fiberglas[s] Board
on the first 12 courses[.]
NCI will spray the top two courses only[.]
This will rate an R-factor of 5 and has a 30-year warrantee.
Prior to this being installed, all drains should be completed
before backfilling and the grade line marked with ample
visibility.
Parge[t]ing is not required for this application.
TOTAL $2905.00
No. 15AP-1056 3
Id.{¶ 6} The PDF file entitled "WP NOTICE – v05-08-12.pdf" comprised five pages.
The first page stated:
WATERPROOFING INSTRUCTIONS AND NOTICES.
Dear Valued Customer,
We thank you for making NCI your waterproofing
contractor of choice. In order to ensure the best possible
experience we ask that you read and sign below as well as
initial each of the attached documents outlining:
1. The details of what has to be done in order to properly
prepare a job for the application of the Tuff-N-Dri
waterproofing system.
2. The details of the Tuff-N-Dri warranty.
3. Instructions on what needs to be done after NCI
completes the application in order to protect the
waterproofing installation from damage.
Id. The next four pages of the PDF file contained the documents described. The second
document was entitled "Tuff-N-Dri® Basement Waterproofing Systems 30-YEAR
LIMITED WARRANTY" (hereinafter referred to as the "Limited Warranty"). The Limited
Warranty stated that it was from Tremco, and it provided:
What Is Covered:
***
Under normal use and service, the vertical surface of your
foundation wall not obscured or covered by other building
materials should be free from water leakage or seepage
through the areas that are treated with TUFF-N-DRI
Basement Waterproof System product ("Leakage"), EXCEPT
FOR EXCEPTIONS, EXCLUSIONS AND LIMITATIONS SET
FORTH BELOW.
What We Will do If the Product Fails:
If the TUFF-N-DRI Basement Waterproofing System fails, we
will either repair or have repaired the area in question or
provide replacement of the TUFF-N-DRI Basement
Waterproofing System as your remedy * * *. We will exercise
our judgment and shall have the sole option to select the best
method by which to remedy leakage, whether by interior or
exterior solution. We will undertake the cost of providing any
replacement of the TUFF-N-DRI Basement Waterproofing
No. 15AP-1056 4
System necessary, and pay for labor costs necessary to reapply
or patch the TUFF-N-DRI Basement Waterproofing System
within a reasonable time. Our total responsibility during the
life of this Warranty shall not exceed an amount equal to
$3.00 per square foot of foundation wall treated with the
TUFF-N-DRI Basement Waterproofing System and requiring
repair, or a total of $10,000, whichever is lower.
Id.{¶ 7} After receiving the email from White, Volovetz reviewed the first attachment
and determined that the price quoted was higher than the price offered by another
contractor with whom Volovetz was negotiating. Volovetz contacted White and told him
so. White responded with a second email, also dated May 10, 2013. Like the first email,
the second email attached two PDF files. The first PDF file—"6883 JERSEY DR
REPRICED.pdf"—contained a revised quote. (Ex. 7, Volovetz Dep.) The revised quote
was identical in form to the initial quote, except that the total was listed as $2,815, not
$2,905. The second PDF file—"WP NOTICE – v05-08-12.pdf"—contained the exact same
content as the file of that name attached to the first email. Id. The body of the second
email stated, "Boris[:] This is the best price….please sign both….thanks." Id.{¶ 8} While Volovetz primarily focused his attention on the quotes attached to the
two emails, Volovetz also opened the PDF file entitled "WP NOTICE – v05-08-12."
However, the first few pages in the file "ma[d]e no sense" to Volovetz. (Volovetz Dep. at
65.) Volovetz stopped his review of the file and contacted White to ask for an in-person
meeting. Volovetz requested that White bring to the meeting "whatever he want[ed]
[Volovetz] to sign so [they could] both review it." Id. at 141. When White appeared for
the meeting, he had with him only the revised quote. White and Volovetz reviewed the
terms of the revised quote, Volovetz made handwritten additions, and then Volovetz
signed the revised quote.
{¶ 9} Volovetz never signed or initialed the documents contained in the PDF file
entitled "WP NOTICE – v05-08-12." Volovetz never saw or read the Limited Warranty
prior to contracting with NCI.
{¶ 10} NCI installed the Tuff-N-Dri basement waterproofing system during May
and June 2013. Unfortunately, the Tuff-N-Dri system did not keep the Volovetzes'
basement waterproof. In November 2013 and May 2014, Volovetz observed water leaking
No. 15AP-1056 5
through the foundation walls. Volovetz contacted NCI and informed it that the Tuff-N-
Dri system had failed. In May 2014, after Volovetz learned from NCI that it had
purchased the Tuff-N-Dri system from Tremco, Volovetz also contacted Tremco to inform
it of the system's failure. In response, Tremco offered to apply two coats of Zinsser
WaterTite paint to the interior of the foundation walls. Volovetz rejected that remedy.
{¶ 11} On June 30, 2014, the Volovetzes filed suit against NCI and Tremco. The
Volovetzes asserted claims against NCI for breach of express warranty, breach of the
implied duty to perform in a workmanlike manner, and breach of the implied warranties
of merchantability and fitness for a particular purpose. The Volovetzes asserted claims
against Tremco for breach of the implied warranty that a product is free of defects and
negligence in how Tremco instructed NCI regarding the installation of the Tuff-N-Dri
system. The Volovetzes maintained that NCI and Tremco were liable in the amount
needed to excavate the foundation; remove the excavated materials; remove the Tuff-N-
Dri system; repair the foundation; apply a new exterior waterproofing system; backfill the
foundation with gravel and dirt; replace paving, concrete, drain tiles, and landscaping
damaged by the excavation; remove and reinstall the electrical panels and low-voltage
systems; and treat the inner foundation walls for mold.
{¶ 12} NCI and Tremco each answered the complaint. In addition to answering,
Tremco also filed a counterclaim seeking a declaratory judgment that: (1) the Limited
Warranty governed and defined Tremco's obligation with respect to the Volovetzes and
their Tuff-N-Dri basement waterproofing system, (2) Tremco acted consistent with and
fully complied with its obligation under the Limited Warranty, and (3) the Volovetzes
could not circumvent the remedies provided in the Limited Warranty by recasting their
warranty claims as non-warranty claims.1
{¶ 13} After conducting discovery, Tremco moved for summary judgment on its
claim for declaratory judgment and the Volovetzes' claims against it. In relevant part,
Tremco argued that the Volovetzes were bound by the limitations contained in the
Limited Warranty because that warranty was expressly incorporated into the contract that
Volovetz and NCI executed. Pursuant to the Limited Warranty, Tremco had the sole
1 In this decision, we only recount the procedural history relevant to this appeal. We recognize that this
action included additional claims and parties, but we do not detail them here.
No. 15AP-1056 6
option to select the remedy for the failure of the Tuff-N-Dri basement waterproofing
system. Tremco determined that the best remedy for the leakage was coating the
basement walls with a waterproofing paint. Thus, Tremco contended that the Limited
Warranty barred the Volovetzes from demanding any other remedy.2 In the alternative,
Tremco argued that the Ohio Product Liability Act ("OPLA"), R.C. 2307.71 et seq.,
precluded the Volovetzes from pursuing their claims against Tremco.
{¶ 14} In response to Tremco's motion, the Volovetzes conceded that summary
judgment was proper on their implied warranty claim, but not on their negligence claim.
The Volovetzes argued that the remedy limitation contained in the Limited Warranty
should not apply to them because Volovetz did not know about it when he signed the
contract with NCI. With regard to Tremco's OPLA argument, the Volovetzes maintained
that the OPLA did not preclude their negligence claim because they only sought economic
damages for Tremco's negligence.
{¶ 15} The trial court granted Tremco summary judgment on the basis that the
Limited Warranty exclusively governed the relationship between the Volovetzes and
Tremco. Without any analysis, the trial court concluded that the Limited Warranty was
specifically referenced and incorporated into the contract between Volovetz and NCI. The
trial court then held that the remedy limitation in the Limited Warranty applied, despite
Volovetz's ignorance of its existence, based on the legal maxim that a party is held to the
terms of a contract that he signs regardless of whether he reads it. The trial court
reasoned that, because the Volovetzes were bound by the remedy limitation, they could
not recover for negligence. The trial court did not address Tremco's OPLA argument.
{¶ 16} Confusingly, even though the trial court had granted Tremco's motion for
summary judgment in its entirety, the trial court retained Tremco as a party so the
Volovetzes could recover from it to the extent the Limited Warranty allowed. In a later
entry clarifying its initial ruling, the trial court recognized that it could not retain Tremco
as a party when it had granted summary judgment on the claim Tremco had asserted, as
2 In making this argument, Tremco did not explain why a limitation on the remedies recoverable for a
breach of an express warranty would legally preclude the Volovetzes from suing Tremco for negligence.
Thus, two questions remain unanswered: (1) why a defense to a breach-of-express-warranty claim would
apply to a negligence claim, and (2) why a remedy limitation would preclude plaintiffs from asserting a
claim. As the Volovetzes raised neither of these questions in response to summary judgment, we do not
endeavor to answer them in this decision.
No. 15AP-1056 7
well as the claims the Volovetzes had asserted against Tremco. The trial court thus
dismissed Tremco from the action.
{¶ 17} The Volovetzes moved for reconsideration of the summary judgment ruling.
In relevant part, the Volovetzes argued that, contrary to the trial court's assertion, the
contract with NCI did not incorporate by reference the terms contained in the Limited
Warranty. Thus, argued the Volovetzes, they never agreed to the remedy limitation in the
Limited Warranty, and consequently, that limitation could not bar their negligence claim
against Tremco. The trial court rejected this argument and denied the motion for
reconsideration.
{¶ 18} The day after the trial court denied the Volovetzes' motion for
reconsideration, NCI moved for summary judgment. NCI argued that the Limited
Warranty also exclusively governed its relationship with the Volovetzes. NCI then
contended that the Limited Warranty precluded the Volovetzes from asserting any of the
claims they had pled against NCI. In a decision and entry dated October 27, 2015, the trial
court accepted this argument and granted NCI summary judgment.3
{¶ 19} The Volovetzes now appeal the trial court's decisions granting Tremco and
NCI summary judgment, and they assign the following errors:
[1.] The Trial Court erred in granting Summary Judgment
to [Tremco] and NCI on grounds that the Appellants are
contractually bound by the Thirty[-]Year Limited Warranty
when the quote which is the basis of the contract did not
incorporate the Thirty[-]Year Limited Warranty by reference.
[2.] The Trial Court erred in granting Summary Judgment
to [Tremco] and NCI as there are material issues of fact in
dispute which preclude Summary Judgment as to both
parties.
{¶ 20} Both of the Volovetzes' assignments of error challenge the trial court's
rulings on summary judgment. A trial court will grant summary judgment under Civ.R.
56 when the moving party demonstrates that: (1) there is no genuine issue of material
fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable
minds can come to but one conclusion when viewing the evidence most strongly in favor
3 Neither the trial court nor NCI explains why or how a remedy limitation in an express warranty issued
by Tremco would preclude the Volovetzes from asserting claims against NCI. However, as the Volovetzes
did not raise that issue in response to NCI's motion for summary judgment, we do not address it.
No. 15AP-1056 8
of the nonmoving party, and that conclusion is adverse to the nonmoving party. Hudson
v. Petrosurance, Inc., 127 Ohio St.3d 54, 2010-Ohio-4505, ¶ 29; Sinnott v. Aqua-Chem,
Inc., 116 Ohio St.3d 158, 2007-Ohio-5584, ¶ 29. Appellate review of a trial court's ruling
on a motion for summary judgment is de novo. Hudson at ¶ 29. This means that an
appellate court conducts an independent review, without deference to the trial court's
determination. Zurz v. 770 W. Broad AGA, L.L.C., 192 Ohio App.3d 521, 2011-Ohio-832,
¶ 5 (10th Dist.); White v. Westfall, 183 Ohio App.3d 807, 2009-Ohio-4490, ¶ 6 (10th
Dist.).
{¶ 21} By their first assignment of error, the Volovetzes argue that they are not
bound by the remedy limitation contained in the Limited Warranty because the contract
with NCI does not incorporate the Limited Warranty by reference. We agree.
{¶ 22} "Any affirmation by the seller, which forms a part of the 'basis of the
bargain,' may constitute an express warranty." Slyman v. Pickwick Farms, 15 Ohio
App.3d 25, 27 (10th Dist.1984), quoting R.C. 1302.26(A)(1). A seller's breach of an
express warranty can give rise to the buyer's right to recover incidental and consequential
damages. Sutphen Towers, Inc. v. PPG Industries, Inc., 10th Dist. No. 05AP-109, 2005-
Ohio-6207, ¶ 60, citing R.C. 1302.88. Such damages include, but are not limited to, any
reasonable expense incident to the breach and injury to property proximately resulting
from the breach. R.C. 1302.89(A) and (B)(2).
{¶ 23} However, "[r]emedies for breach of warranty can be limited in accordance
with the provisions of * * * [R.C.] 1302.93 * * * on contractual modification of remedy."
R.C. 1302.29(D). Pursuant to R.C. 1302.93(A)(1), "[t]he agreement * * * may limit or alter
the measure of damages recoverable * * *, as by limiting the buyer's remedies to return of
the goods and repayment of the price or to repair and replacement of nonconforming
goods or parts." This provision gives the parties to a contract of sale the right to include
any reasonable provision with respect to what remedies are available upon breach. 4B
Lawrence, Anderson on the Uniform Commercial Code, Section 2-719:4, at 8 (3d Ed.
2001). Thus, parties to a contract of sale may consensually allocate the loss resulting from
the failure of the goods to perform as warranted, as long as minimum adequate remedies
remain available for a beach. Id.No. 15AP-1056 9
{¶ 24} Notably, " '[t]he limitation [or exclusion of remedies] must be a part of the
parties' bargain in fact.' " Insurance Co. of N. Am. v. Automatic Sprinkler Corp., 67 Ohio
St.2d 91, 96 (1981), quoting Nordstrom, Law of Sales, Section 89, at 276 (1970); accord
Sanco, Inc. v. Ford Motor Co., 771 F.2d 1081, 1086 (7th Cir.1985) (holding that "a seller
may not 'spring' a warranty disclaimer on a customer after a sale has been consummated.
The parties must have understood that the warranty, and any disclaimers or limitations,
were part of their deal."); Haithcock v. Graham Ford, Inc., 10th Dist. No. 81AP-935
(Dec. 30, 1982) (holding that " '[a] limitation of warranties to be effective must have been
bargained for' "). Inclusion of a remedy limitation in the parties' agreement is essential
because "[a] limitation of remedy is binding only because it is a term of the contract
between the parties." Lawrence, Section 2-719:16, at 14; accord Olathe Mfg., Inc. v.
Browning Mfg., 259 Kan. 735, 755 (1996) (holding that a manufacturer's "remedy
limitation [was] not directly applicable to [the buyer] because it was not part of the basis
of the bargain"); Duffin v. Idaho Crop Improvement Assn., 126 Idaho 1002, 1012 (1995)
("[A] remedy limitation is effective only as a term of the parties' agreement."); 1 American
Law of Warranties, Section 7:18, at 566 ("A disclaimer or limitation that is not part of the
contract of the parties is not binding on the buyer.").
{¶ 25} Here, in order for NCI and Tremco to rely on the remedy limitation in the
Limited Warranty, the bargain between NCI and the Volovetzes must include the Limited
Warranty. All parties acknowledge that the contract at issue is the one-page, pre-printed
quote form completed by White and signed by both White (on behalf of NCI) and
Volovetz. The Limited Warranty is a separate document. To overcome the separate
nature of the contract and the Limited Warranty, NCI and Tremco point to the term in the
contract that the Tuff-N-Dri waterproofing system "has a 30-year warrantee." Tremco
and NCI argue that this contractual term refers to the Limited Warranty and that the
reference is sufficient to incorporate the Limited Warranty into the contract.
{¶ 26} Ohio contract law includes the doctrine of incorporation by reference. See
Mohmed v. Certified Oil Corp., 8th Dist. No. 102049, 2015-Ohio-2398, ¶ 35; KeyBank
Natl. Assn. v. Columbus Campus, LLC, 10th Dist. No. 11AP-920, 2013-Ohio-1243, ¶ 21;
Blanchard Valley Farmers Coop., Inc. v. Carl Niese & Sons Farms, Inc., 143 Ohio App.3d
795, 802 (3d Dist.2001). Under that doctrine, when a document is incorporated into a
No. 15AP-1056 10
contract by reference, that document becomes part of the contract. KeyBank Natl. Assn.
at ¶ 21; Blanchard Valley Farmers Coop., Inc. at 802. Ohio law, however, does not set
forth any standard for determining when a contract incorporates another document by
reference. To articulate that standard, we turn to out-of-state precedent.
{¶ 27} Generally, "the parties to a contract may incorporate contractual terms by
reference to a separate, noncontemporaneous document, including * * * a separate
document which is unsigned[,]" if "the contract makes clear reference to the document
and describes it in such terms that its identity may be ascertained beyond doubt." 11
Lord, Williston on Contracts, Section 30:25, at 294-301 (4th Ed.2012); accord Rinard v.
E. Co., 978 F.2d 265, 269 (6th Cir.1992), fn. 4 ("For the terms of another document to be
incorporated by reference into the document executed by the parties, the reference must
be clear and unequivocal * * *.") (Emphasis sic.); Ingersoll-Rand Co. v. El Dorado Chem.
Co., 373 Ark. 226, 233 (2008) (holding that "a majority of states have concluded" that in
order for a contract to incorporate another document "the contract must clearly and
specifically reference the document to be incorporated"). Moreover, mere reference to
another document is not sufficient to incorporate that document into a contract; the
contract language must also clearly demonstrate that the parties intended to incorporate
all or part of the referenced document. Pennaco Energy, Inc. v. KD Co., LCC, 2015 WY
152, 363 P.3d 18, ¶ 79; Woodruff v. Thames, 143 So.3d 546, 555 (Miss.2014); NSTAR
Elec. Co. v. Dept. of Pub. Util., 462 Mass. 381, 394 (2012); accord Microsoft Corp. v. Big
Boy Distrib. LLC, 589 F.Supp.2d 1308, 1319 (S.D.Fla.2008) ("A document may be
incorporated by reference in a contract if the contract specifically describes the document
and expresses the parties' intent to be bound by its terms."); Hous. Auth. v. Snyder, 2002
UT 28, 44 P.3d 724, ¶ 19 (holding that the contract's reference to another document "
'must be clear and unequivocal,' and alert the non-drafting party that terms from another
document are being incorporated"). In other words:
the language used in a contract to incorporate extrinsic
material by reference must explicitly, or at least precisely,
identify the written material begin incorporated and must
clearly communicate that the purpose of the reference is to
incorporate the referenced material into the contract * * *.
No. 15AP-1056 11
Northrup Grumman Information Technology, Inc. v. United States, 535 F.3d 1339, 1345
(Fed.Cir.2008). Whether a contract has incorporated another document by reference
presents a question of law for a court to determine. Lord, Section 30:25, at 308.
{¶ 28} In the case at bar, the contract states that the Tuff-N-Dri basement
waterproofing system "has a 30-year warrantee." We agree with Tremco and NCI that
this provision could refer to the Limited Warranty. However, the contractual language
does not attain the clarity and specificity necessary to incorporate the Limited Warranty
by reference. As we stated above, "[a]ny affirmation by the seller, which forms a part of
the 'basis of the bargain,' may constitute an express warranty." Slyman, 15 Ohio App.3d
25, at 27. The basis of the bargain at hand was the payment of money in exchange for the
sale and installation of a product to stop water from infiltrating the foundation walls of
the Volovetzes' house. In the contract, NCI affirmed that the Tuff-N-Dri basement
waterproofing system would waterproof the foundation. Thus, the promise of a "30-year
warrantee" can be read as a complete, independent contractual term that extends an
express warranty that the Tuff-N-Dri system would waterproof the foundation for 30
years. Interpreted as a self-contained promise, the term providing a "30-year warrantee"
does not refer to another document or indicate an intent to incorporate another document
into the contract. Because incorporation by reference cannot occur without a clear
identification of the extrinsic document and a clearly expressed purpose to incorporate
that document, we conclude that this contract's equivocal language does not incorporate
the Limited Warranty by reference.
{¶ 29} As incorporation by reference did not occur here, the terms of the Limited
Warranty, including the remedy limitation, do not bind the Volovetzes. Without a remedy
limitation contractually binding the Volovetzes, the trial court's reasoning for granting
summary judgment fails. Accordingly, we sustain the first assignment of error.
{¶ 30} By their second assignment of error, the Volovetzes argue that the trial court
erred in granting summary judgment because genuine issues of material fact remain in
dispute regarding Volovetz's knowledge about the Limited Warranty prior to contracting
with NCI. Given our ruling on the first assignment of error, the second assignment of
error is moot. Consequently, we do not address it.
No. 15AP-1056 12
{¶ 31} Based on our ruling on the first assignment of error, we conclude that the
trial court erred in granting summary judgment to NCI. With regard to Tremco, however,
our analysis is not over. Tremco asserted below, and, now, raises on appeal, an
additional, alternative ground for summary judgment; namely, that the OPLA preempts
all common-law product liability claims, and thus, the Volovetzes' claim for negligence
must fail. We agree with Tremco.
{¶ 32} The OPLA "abrogate[s] all common law product liability claims or causes of
action." R.C. 2307.71(B). A "product liability claim" is a claim or cause of action that:
seeks to recover compensatory damages from a manufacturer
or supplier for death, physical injury, emotional distress, or
physical damage to property other than the product in
question, that allegedly arose from any of the following:
(a) The design, formulation, production, construction,
creation, assembly, rebuilding, testing, or marketing of that
product;
(b) Any warning or instruction, or lack of warning or
instruction, associated with that product;
(c) Any failure of that product to conform to any relevant
representation or warranty.
R.C. 2307.71(A)(13).
{¶ 33} The OPLA preemption provision extinguishes any common-law claim that,
as pled, actually meets the statutory definition of a product liability claim. Evans v.
Hanger Prosthetics & Orthotics, Inc., 735 F.Supp.2d 785, 796 (N.D.Ohio 2010); Miles v.
Raymond Corp., 612 F.Supp.2d 913, 918 (N.D.Ohio 2009). The essential nature of the
substantive allegations of the plaintiff's claim, not the artificial label attached to the claim,
determines the claim's true nature. Evans at 796; Miles at 921.
{¶ 34} In the case at bar, the Volovetzes alleged in their complaint that Tremco
negligently instructed NCI regarding how to install the Tuff-N-Dri system. This conduct
is the same sort of conduct described in R.C. 2307.71(A)(13)(b), which states that a
statutory product liability claim can arise from any instruction, or lack of instruction,
associated with a product. Additionally, by their claim for negligence, the Volovetzes
sought recovery for the damage to the foundation walls caused by the failure of the Tuff-
No. 15AP-1056 13
N-Dri system. This type of recovery constitutes "compensatory damages * * * for * * *
physical damage to property other than the product in question." R.C. 2307.71(A)(13).4
Therefore, the Volovetzes' negligence claim satisfies the criteria to constitute a statutory
product liability claim. As the negligence claim is actually a statutory product liability
claim, the OPLA preempts the claim and Tremco is entitled to summary judgment on it.
{¶ 35} Given the conclusions we reach above, we find that the trial court properly
granted Tremco summary judgment on its negligence claim. The trial court, however,
erred in granting summary judgment on: (1) Tremco's declaratory judgment action and
(2) the claims against NCI for breach of express warranty, breach of the implied duty to
perform in a workmanlike manner, and breach of the implied warranties of
merchantability and fitness for a particular purpose. Therefore, upon remand, Tremco's
declaratory judgment action and the claims against NCI will remain pending before the
trial court.
{¶ 36} For the foregoing reasons, we sustain the first assignment of error, which
renders the second assignment of error moot. We affirm in part and reverse in part the
judgment granting Tremco summary judgment, we reverse the judgment granting NCI
summary judgment, and we remand this matter for further proceedings consistent with
law and this decision.
Judgments affirmed in part, reversed in part; cause remanded.
DORRIAN, P.J., and SADLER, J., concur.
4 We recognize that a claim for purely economic loss is not included in the statutory definition of "product
liability claim," and, consequently, a plaintiff with such a claim may pursue a common-law remedy.
LaPuma v. Collinwood Concrete, 75 Ohio St.3d 64, 66 (1996). Here, however, the Volovetzes seek
damages for property other than the defective product. Such damages fall outside the definition of
economic loss. Compare R.C. 2307.71(A)(2) (defining "economic loss" and stating that "[h]arm is not
economic loss") with R.C. 2307.71(A)(7) (defining "harm" to include "physical damage to property other
than the product in question"). Consequently, the holding of LaPuma does not apply to this case.