Jury Awards Entire "Removal and Replacement" Damages

NB's clients paid over $100,000 for 14 Italian steel windows for their custom house in Poway. Within a few months of installation, the windows began to leak. The window retailer made several attempts to repair the windows but refused to replace them. NB sued the retailer for breach of the implied warranty of "merchantability."

Lead trial attorney, Michael Battin, explains: "The implied warranty of merchantability is a provision that is automatically included by law in the sale of just about every new product. The warranty is a promise that the product will basically perform as expected. It's not a guarantee of perfection - the warranty just assures a minimum level of performance. For example, when you buy a bicycle, the warranty doesn't mean you are entitled to the best bike but you should be able to ride it without the wheels falling off."

After a trial spanning over two weeks, the jury returned a verdict for $224,000, representing the cost of complete removal and replacement of all of the windows. "The defendant offered our clients a patch job, and the jury didn't buy it," observed Battin. Under the implied warranty of merchantability theory, NB was able to demonstrate not only that the windows did not perform but that a patchwork repair was not appropriate. "These were high-end, custom steel windows. When you're spending that kind of money, you shouldn't have to deal with repair after repair, and I think that message resonated with the jury," Battin concluded.

NB is currently pursuing post-trial motions for the recovery of attorney's fees and court costs.