ST. LOUIS – U.S. District Judge Carol Jackson of the Eastern District of Missouri has granted in part and denied in part a paint maker's motion to dismiss a breach of warranty suit over its Premium DeckOver Coating.

Plaintiff Rudy Cortinas originally sued Behr Process Corp. in St. Louis County Circuit Court before the action was removed to federal court in St. Louis in November 2016.

Represented by Gregory E. Anderson of Anderson Henderson LLC in St. Louis, Cortinas alleged, among other things, that in 2013, after spending thousands of dollars on the Behr product, 391 hours preparing his deck that was approximately 8,000 square feet and 564 hours applying it, he noticed seven months later that it had already begun peeling.

Cortinas alleges that he relied on various claims made by Behr, which is sold exclusively in Home Depot stores.

Among those claims were that the product "brings [or gives] new life to old wood and concrete," his complaint states.

In its motion to dismiss Cortinas' amended complaint, Behr, represented by Christopher Baucom of Armstrong Teasdale in St. Louis, argued that Cortinas' breach of warranty claim is based upon statements that serve as "mere puffery."

Baucom wrote the claim should be barred as puffery cannot serve as the basis for a breach of warranty claim under the Missouri Merchandising Practices Act.

On June 5, Jackson granted Behr's motion to dismiss claims that it represented and warranted that its product: "Brings [or gives] new life to old wood and concrete;" "Is '"more than a stain ...;'" "extends the life of your deck;" "don't repair, resurface;" and other claims. The court agreed with the defendant that these claims are "neither specific nor measurable and cannot be reasonably interpreted as making a factual claim."

Jackson denied Behr's motion to dismiss claims that it represented and warranted that its product: lasts "5 to 10 years on horizontal surfaces and 15 to 25 years on vertical surfaces;" "resists cracking and peeling;" "conceals splinters and cracks up to 1/4 [inch];" and other claims.

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