Not a Lexis Advance subscriber? Try it out for free.

Cover v. Windsor Surry Co.

United States District Court for the Northern District of California

February 10, 2016, Decided; February 10, 2016, Filed

Case No. 14-cv-05262-WHO



Re: Dkt. No. 49


Defendants Windsor Surry Company, d/b/a WindsorONE, and Windsor Willits Company, d/b/a Windsor Mill (collectively "Windsor") shifted positions in its motion to dismiss plaintiff McLane Cover's second amended complaint alleging misrepresentations regarding Windsor's housing trim products and now argues that Rhode Island law rather than California's applies to Cover's substantive claims (but not, oddly, with respect to damages). [*2]  Because Cover is a Rhode Island resident and the communication of the marketing materials, the purchase of the product and its deterioration all occurred in Rhode Island, I must apply Rhode Island law and dismiss Cover's California statutory claims. His remaining claims for breach of express warranty, implied warranty of merchantability, and negligence are plausibly pleaded under Rhode Island law. Windsor's motion to dismiss is GRANTED IN PART and DENIED IN PART.


In 2004 and 2005, Cover bought and installed WindsorONE trim board, manufactured by Windsor, on the exterior of his vacation home in Rhode Island. SAC ¶¶74-76. Trim boards are a finger jointed product, meaning that each board is made of several shorter boards that are joined together using finger joints and adhesive. SAC ¶29. Cover selected the product on the recommendations of his architect, contractor and carpenter, all of who were familiar with WindsorONE trim board, including its marketing materials and warranty. SAC ¶67. Specifically, Cover's master carpenter provided him with a compact disc containing information regarding Windsor products, including statements about its wood quality and performance. SAC ¶¶68-71. [*3] 

Cover routinely inspected his home and would hire a carpenter to address any discovered maintenance issues. SAC ¶77. In 2012, Cover's carpenter alerted him to signs of rot and deterioration of the installed trim board, noting that "areas were so soft that a finger could press through it." SAC ¶80. Shortly, thereafter he made a warranty claim to Windsor. Windsor's express limited warranty provides:

Read The Full CaseNot a Lexis Advance subscriber? Try it out for free.

Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.

2016 U.S. Dist. LEXIS 16475 *

MCLANE COVER, Plaintiff, v. WINDSOR SURRY COMPANY, et al., Defendants.

Prior History: Cover v. Windsor Surry Co., 2015 U.S. Dist. LEXIS 94173 (N.D. Cal., July 17, 2015)


warranty, choice of law, motion to dismiss, trim, allegations, express warranty, products, injunctive relief, argues, implied warranty, cause of action, disclaimer, damages, consumer protection, misrepresentation, quotation, pleaded, limited warranty, marks, installed, declaratory relief, merchantability, resident, asserts, courts, cases, marketing materials, judicial notice, fraudulently, conspicuous