Class Action Complaint Filed Against MI Windows and DoorsAugust 9th, 2012 | Category: Industry News
A class action complaint was filed on July 23, 2012, in the U.S. District Court of Kansas against MI Windows and Doors (MIWD) by Jennifer and Scott McGaffin, on behalf of themselves and all others similarly situated. According to court documents, the plaintiffs assert unfair and deceptive trade practices in violation of the Kansas Consumer Protection Act, negligence, breach of implied warranty of merchantability, breach of implied warranty of fitness for a particular purpose, fraudulent misrepresentation, fraudulent concealment, unjust enrichment and seeking damages and declaratory relief in connection with defective windows designed, manufactured, marketed, advertised and sold by MIWD.
One of the plaintiffs’ contentions is that MIWD designed, manufactured and supplied vinyl windows which relied upon adhesive-coated foam tape to prevent water intrusion through the glazing, and other sealant materials to prevent water intrusion through the sill joints.
According to court documents, “the windows are defective and fail to perform both at the plaintiffs’ residence[s] and at Class members’ residences in that the windows rely upon foam tape between the glass and the vinyl to prevent the intrusion of water. However, MIWD failed to install the foam tape in sufficient compression as required or recommended by the sealant tape manufacturer, which results in premature foam tape performance failure.”
Further, court documents say that “MIWD knew or should have known that the windows were defective in design, were not fit for their ordinary and intended use, and failed to perform in accordance with the advertisements, marketing materials and warranties disseminated by MIWD and further failed to perform to the reasonable expectations of ordinary consumers.”
The plaintiffs allege that MIWD has been put on notice of the widespread defects in its products in Kansas by a number of homeowners. “MIWD knew or should have known that the defects were present at the time the products left its control, not only because of its expertise and testing, but also because of the notices of defect that it was receiving from the field,” reads the complaint.
The plaintiffs also make several allegations related to the window company’s warranty. “MIWD ships a warranty with its windows. However, homeowners generally do not receive the warranty and are not on notice of its limitations, as the window stickers are typically removed by the builder to improve the appearance of the home,” write the plaintiffs. “Defendant MIWD’s shipping of the windows with prior knowledge of the defects or with negligent or reckless disregard of the presence of defects constituted a breach of its express warranty, and makes the limitations of the express warranty unconscionable in all respects, and therefore void.”
According to court documents, the amount in controversy in the suit exceeds $5 million “exclusive of interest and costs” and there are 100 or more members of the proposed plaintiffs’ class which include Jennifer and Scott McGaffin, whose home was built in 2008. The plaintiffs further allege that the windows manufactured by MIWD “suffered premature failure” and thus the homeowners had to replace the windows at their own cost. Court documents also claim that the “plaintiffs contacted MIWD about the damage from their defective Windows, but were told that the windows were not installed correctly.”
Court documents define the damages class as “All persons and entities that own a structure located within the State of Kansas in which MIWD’s 8500/4300/3500 windows are installed, who have not had their windows replaced or been compensated for their loss in full by defendant, and who are not covered by the terms of the defendant’s express warranty.”
A representative of MI Windows and Doors told DWM magazine that it “must now contain its comments to the litigation process.”