Kelleher v. Lumber

Argued: September 14, 2005 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. 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.