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McNamara v. Nomeco Bldg. Specialties - 26 F. Supp. 2d 1168 (D. Minn. 1998)


In Minn. Stat. § 325F.69(1), the Minnesota Consumer Fraud Act prohibits the act, use, or employment by any person of any fraud, false pretense, false promise, misrepresentation, misleading statement or deceptive practice, with the intent that others rely thereon in connection with the sale of any merchandise, whether or not any person has in fact been misled, deceived, or damaged thereby. The weight of authority in Minnesota holds that negligent misrepresentations, which are made in connection with the sale of merchandise, are actionable as consumer fraud. Simply stated, one making representations in the sale of consumer goods can be held liable, even though he had no specific intent to falsely mislead the consumer.


Plaintiffs Michael J. McNamara and Elizabeth D. McNamara owned a home that overlooked a lake in Minnesota. They were in the process of remodeling their home when they contacted Donald E. Bergeson, who was a sales representative for defendant Nomeco Building Specialties, Inc. ("Nomeco"), in order to discuss the replacement of a bay window that was manufactured by defendant Pella Corporation ("Pella"). The window, which faced the lake, had a tendency to fog over with exterior condensation in the summer months due to climatological conditions. According to the McNamaras, Bergeson told them that the new window would not experience the condensation problem. The McNamaras bought the new window, and after it was installed, they discovered that it did in fact have the same condensation issue. Ultimately, the McNamaras filed a lawsuit against defendants in federal district court alleging numerous causes of action. Nomesco filed a motion to dismiss, or in the alternative, for summary judgment, on the McNamaras' claims for consumer fraud and attorney's fees, under Minnesota state law, and violation of the Magnuson-Moss Warranty Act ("Magnuson-Moss"), 15 U.S.C.S. § 2301 et seq. The matter was before a magistrate judge for a report and recommendation.


Were Bergeson's alleged negligent misrepresentations about the new window actionable as consumer fraud under Minnesota law?




The magistrate judge recommended that Nomeco's motion for be granted as to the McNamaras' claim under Magnuson-Moss and be denied as to the other claims. The magistrate judge found that Bergeson's negligent misrepresentations were made in connection with the sale of merchandise and thus were actionable as consumer fraud under the Minnesota Consumer Fraud Act. Nomesco provided no evidence, apart from the McNamaras' subjective belief, that Bergeson had not lied to them, which would have suggested that Bergeson had exercised reasonable care in ascertaining, and relaying, the information upon which the McNamaras were alleged to have detrimentally relied. However, there was no viable Magnuson-Moss claim for the breach of implied warranty since there was no written warranty issued by Nomeco for the window.

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