John J. Kelleher, Jr. v. Marvin Lumber and Cedar Company

Summary

The court upheld the plaintiff’s strict-liability recovery, ruling that the claims were timely under applicable discovery rules, that the plaintiff could pursue tort and warranty theories simultaneously, and that mitigation expenses could include replacing the defective windows when necessary to prevent continuing damage to other property. It also held that the catalog statements constituted warranties of future performance and written warranties under applicable law, but ruled that whether those statements formed part of the basis of the bargain was a jury question, requiring vacatur of the warranty verdict and attorney-fee award. The court affirmed dismissal of the implied-warranty claim because an implied warranty cannot explicitly extend to future performance for purposes of the discovery-rule exception.