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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

TIMOTHY HENNIGAN, AARON MCHENRY,

and CHRISTOPHER COCKS,

individually and on behalf of themselves

and all others similarly situated,

Hon. Victoria A. Roberts

Plaintiffs,

Case No. 09-11912

v.

GENERAL ELECTRIC COMPANY,

Defendant.

________________________________/

ORDER

I. INTRODUCTION

This matter is before the Court on Defendant General Electric Company’s

“Motion to Dismiss Plaintiffs’ Third Amended Class Action Complaint Pursuant to

Federal Rule of Civil Procedure 12(b)(6).” (Doc. #40).

GE’s motion is GRANTED IN PART AND DENIED IN PART.

II. BACKGROUND AND PROCEDURAL HISTORY

A. Timothy Hennigan

Plaintiff Timothy Hennigan is a Michigan resident who purchased a GE

microwave in February 2001. Hennigan claims that on June 5, 2008, the microwave

began emitting smoke and sparks, and he could not use the control panel to turn it off. 

Hennigan eventually stopped the smoke and sparks by shutting off power to his kitchen.
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B. Aaron McHenry

Plaintiff Aaron McHenry is an Ohio resident who received a GE microwave in

December 2004 as a gift. McHenry claims that in February 2006, the microwave began

operating on its own volition, and he had to unplug the microwave to stop it from turning

on on its own. 

C. Christopher Cocks 

Christopher Cocks is a California resident who purchased a GE microwave in

November 2006. Cocks claims that on October 7, 2009, his microwave began

operating on its own accord, and it could not be turned off manually. Cocks says he

had to unplug the microwave to stop it from turning on on its own. 

D. Procedural History

On May 19, 2009, Hennigan filed a Complaint against GE and Samsung

Electronics America, Inc. On September 8, 2009, the First Amended Complaint was

filed, adding McHenry as a Plaintiff. On November 9, 2009, Hennigan and McHenry

filed a Second Amended Complaint, adding Christopher Cocks as a Plaintiff. 

On November 18, 2009, Defendant Samsung Electronics America, Inc. was

dismissed by stipulation.

On June 8, 2010, Hennigan, McHenry, and Cocks (collectively “Plaintiffs”) filed a

Third Amended Class Action Complaint (TAC) against GE on behalf of:

All persons residing in the United States of America who owned a GEbranded microwave oven manufactured since January 2000. Excluded

from the Class is any entity in which GE has a controlling interest or which

has a controlling interest in GE or Samsung, and GE or Samsung’s legal

representatives, assigns, and successors. Also excluded are the judge

assigned to this case and any member of the judge’s immediate family.
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Plaintiffs allege GE has known, or reasonably should have known, since 2002,

that its microwave ovens are defective and unreasonably dangerous and unsuitable for

their intended use. 

Plaintiffs’ TAC alleges six causes of action: (1) Strict Products Liability (McHenry

only); (2) Breach of Express Warranty (all Plaintiffs); (3) Breach of Implied Warranty of

Merchantability (all Plaintiffs); (4) violation of The Magnuson-Moss Warranty Act (all

Plaintiffs); (5) violation of the State Consumer Protection Acts (Hennigan and Cocks

only); and (6) Unjust Enrichment (Hennigan and Cocks only).

III. STANDARD OF REVIEW

When reviewing a Fed. R. Civ. P. 12(b)(6) motion, the trial court “must construe

the complaint liberally in the plaintiff’s favor and accept as true all factual allegations

and permissible inferences therein.” Gazette v. City of Pontiac, 41 F.3d 1061, 1064 (6th

Cir. 1994) (citing Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir. 1976)); see also Miller

v. Currie, 50 F.3d 373, 377 (6th Cir. 1995). Because a Fed. R. Civ. P. 12(b)(6) motion

rests upon the pleadings rather than the evidence, “[i]t is not the function of the court [in

ruling on such a motion] to weigh evidence or evaluate the credibility of witnesses.” 

Miller, 50 F.3d at 377 (citing Cameron v. Seitz, 38 F.3d 264, 270 (6th Cir. 1994)). 

However, while this standard is decidedly liberal, it requires more than the bare

assertion of legal conclusions. In re DeLorean Motor Co., 991 F.2d 1236, 1240 (6th Cir.

1993) (citing Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir.

1988)). Rather, the complaint must contain either direct or inferential allegations with

regard to all the material elements to sustain recovery under some viable legal theory. 
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DeLorean, 991 F.2d at 1240 (citations omitted). “[W]here the well-pleaded facts do not

permit the court to infer more than the mere possibility of misconduct, the complaint has

alleged - but it has not ‘show[n]’ - ‘that the pleader is entitled to relief.’” Ashcroft v. Iqbal,

129 S.Ct.1937, 1950 (2009) (quoting Fed. R. Civ. P. 8(a)(2)).

IV. APPLICABLE LAW AND ANALYSIS

A. Choice-of-Law Determination

The parties agree that the Court applies Michigan law to Hennigan’s claims, Ohio

law to McHenry’s claims, and California law to Cocks’ claims. 

B. McHenry’s Strict Products Liability (Count I) (Ohio Law)

McHenry alleges that (1) GE marketed, sold, designed and/or manufactured his

microwave; (2) the microwave was defective and/or created an unreasonably

dangerous condition; (3) he suffered damages and injures due to the defect and/or

unreasonably dangerous condition; and (4) the defect and/or unreasonably dangerous

condition proximately caused his damages and injuries. 

GE says McHenry’s strict products liability claim fails because Ohio law prohibits

strict products liability claims for pure economic loss.

The classification of the type of injury caused by a defective product is

integral in determining whether damages are recoverable under strict

products liability. Under strict products liability, damages may be

recoverable for personal injury and property damage, but not economic

loss.

Buck v. Sportscoach Div. of Coachman Indus., Inc., 1991 WL 108518 at *3 (Ohio App.

June 25, 1991) (citing Chemtrol Adhesives, Inc. v. Am. Mfrs Mut. Ins. Co., 42 Ohio St.

3d 40, 45 (1989); Floor Craft Floor Covering, Inc. v. Parma Cmty. Hosp. Ass’n., 54 Ohio
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St. 3d 1, 3 (1990)). “[W]here the alleged harm goes beyond the product itself, the

application of the [economic loss] doctrine is in error.” High Concrete Tech., LLC v.

Korolath of New England, Inc., 665 F. Supp. 2d 883 (S.D. Ohio 2009) (citing Ferro Corp.

v. Blaw Knox Food & Chem. Equip. Co., 121 Ohio App. 3d 434, 443 (1997) (where

alleged harm is not to the “product itself,” summary judgment granted on negligence

claim on the basis that plaintiff had incurred only economic loss is error)). 

McHenry’s alleged damage is to the microwave itself. (See TAC ¶ 3 (“Mr.

McHenry purchased a new microwave to replace the defective one.”)). Accordingly,

McHenry’s strict products liability claim is dismissed. 

B. Breach of Express Warranty (Count II)

1. Hennigan (Michigan Law)

Hennigan claims that (1) GE expressly warranted the microwave he purchased;

these warranties were part of the bargain; and (3) GE breached these warranties

because the microwave he purchased was defective and GE refused to repair or

replace the oven parts damaged by the defect. Hennigan claims that GE fraudulently

concealed the defects and that the statute of limitations for his claims is tolled. 

 Hennigan alleges two express warranties: 

(1) “Defendant GE expressly warranted via its user manuals, advertisements,

pamphlets, brochures, circulars, samples, and models that its microwave ovens are fit

for the ordinary purpose in which such goods are used.” (TAC ¶ 64).

(2) “GE also expressly warranted in its user manuals that it would replace and

repair, free of charge, any part of its microwave ovens that failed due to a defect in
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materials or workmanship within one year from the date of original purchase and any

part of its magnetron tube that fails due to a defect in materials or workmanship within

ten years of the date of original purchase.” (TAC ¶ 64).

In its Motion to Dismiss, GE argues that Hennigan’s claims for breach of express

warranty should be dismissed because (a) the alleged defect occurred after the express

warranty period of one year, (b) the claims are time-barred by the statute of limitations,

and (c) the limitations period that time-bars Hennigan’s claims is not tolled. 

a. The Express Warranty Period

To maintain an action for breach of express warranty, a plaintiff must allege that

the defective product failed during the period of the express warranty. See In re Onstar

Contract Litig., 600 F.Supp.2d 861, 879 (dismissing claims of plaintiffs whose express

warranties expired prior to the alleged product failure). GE states that “Plaintiffs’ breach

of express warranty claims fail because their MWOs fulfilled the durational one-year

limitations periods of the product Limited Warranties.” (Mot. at 17). Hennigan responds

that he relies on both the one-year warranty of the entire microwave and the ten-year

warranty of the magnetron tube. (Opp’n Br. at 19). Hennigan claims the “dangerous

defects [with the microwaves] are related at least in part to the magnetrons, which

Plaintiffs allege are defective.” (TAC ¶ 23). Defendant responds that Hennigan’s “claims

purport to go far beyond allegations of faulty magnetrons and seek damages far in

excess of repair or replacement of this single component.” (Reply Br. at 4). This Court

accepts as true Hennigan’s allegation that the defects in the microwave are related to

the magnetrons. 

 Hennigan alleges that he purchased his microwave around February of 2001,
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and that it began to operate defectively on or about June 5, 2008. Thus, the alleged

magnetron defects are within the period of the ten-year warranty. The Court declines to

find that Hennigan’s breach express warranty claims are outside the express warranty

period. 

b. The Statute of Limitations Period 

GE argues that even if the alleged defect occurred during the express warranty

period, Hennigan’s claims are barred by the statute of limitations.

Under Michigan law, “[a]n action for breach of any contract for sale must be

commenced within 4 years after the cause of action has accrued.” M.C.L. §

440.2725(1). “A cause of action accrues when the breach occurs, regardless of the

aggrieved party’s lack of knowledge of the breach. A breach of warranty occurs when

tender of delivery is made, except where a warranty explicitly extends to future

performance of the goods and discovery of the breach must await the time of such

performance the cause of action accrues when the breach is or should have been

discovered.” M.C.L. § 440.2725(2). However, “[t]his section does not alter the law on

tolling of the statute of limitations.” M.C.L. § 440.2725(4). 

According to GE, Hennigan’s cause of action for a breach of warranty claim

accrued when the tender of delivery was made. Hennigan alleged that he purchased

his microwave on or about February of 2001. (TAC ¶ 4). GE says that “Michigan’s four

year statute of limitations expired in February 2005, more than four years before

Hennigan filed this action.” (Mot. at 19). 

Hennigan disputes this, and appears to argue that the cause of action accrued

when the breach was discovered because the ten-year warranty explicitly extended to
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future performance of the microwave. (Opp’n Br. at 20 (“Because the breach of warranty

claims are based in part upon an express ten-year . . . warrant[y], GE’s statute of

limitations arguments are unavailing.”)). Hennigan is correct. 

Michigan’s UCC provisions say that “a breach of warranty occurs when tender of

delivery is made, except where a warranty explicitly extends to future performance of

the goods and discovery of the breach must await the time of such performance the

cause of action accrues when the breach is or should have been discovered.” M.C.L. §

440.2725(2). “A warranty extends to future performance when the warranty explicitly

provides that the goods will be free from defects for a specific period of time.” Synder v.

Boston Whaler, Inc., 892 F.Supp. 955, 598 (W.D. Mich. 1994) (citing Executone

Business Systems Corp. v. IPC Communications, Inc., 442 N.W. 2d 755, 758-60 (Mich.

App. Ct. 1989). However, “[w]ithout a warranty extending to the future performance of

the subject goods, a cause of action has been determined to accrue upon tender of

delivery.” Rembrandt Construction, Inc. v. Butler Mfg. Co., 2006 WL 3375249, at *2 

(Mich. App. 2006). 

Here, the express warranty extends to the future performance of the microwave. 

According to the express warranty, the entire microwave was warranted for one year

and the magnetron tube was warranted for ten years. This explicit duration extends to

the future performance of the specified microwave parts. See Executone Business

Systems Corp. v. IPC Communications, Inc., 442 N.W. 2d 755, 758-60 (Mich. App. Ct.

1989) (“If a seller expressly warrants a product for a specified number of years, it is

clear that, by this action alone, he is explicitly warranting the future performance of the

product or goods for that period of time.”) (quoting Standard Alliance Industries, Inc. v.
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Black Clawson Co., 587 F.2d 813 (6th Cir. 1978)). 

Although GE is correct that the “Michigan Supreme Court has specifically

determined that the UCC recognizes no discovery rule,” it is of no consequence. (Mot.

at 19). Hennigan does not allege that the discovery rule applies.

The Court finds that GE explicitly extended the express warranty to future

performance of the goods. Thus, the cause of action accrued when Hennigan knew or

had reason to know of the alleged defects with the magnetron tube in his microwave.

Hennigan alleges that he purchased his microwave on or about February of

2001. The ten-year warranty on his magnetron began on the date of purchase. 

Hennigan alleges that the defects with his microwave began on June of 2008. (TAC ¶

4). Before the defects manifested in June, Hennigan says he had no reason to know of

the defects in his microwave. Therefore, the cause of action accrued in June 2008.

Hennigan filed the Complaint on May 19, 2009. The Court declines to find that

Hennigan’s claim is untimely.

c. Fraudulent Concealment

Hennigan alleges “that GE has undertaken a deliberate and willful pattern of

conduct (including the taking of active measures) aimed at hiding the defects in its

microwaves from its consumers, including the Plaintiffs.” (TAC ¶ 3). GE claims that

Hennigan’s allegations fail to meet the specificity required to plead fraud under Fed. R.

Civ. Pro. 9(b), and that his allegations are insufficient to support a claim of fraudulent

concealment under Michigan law. 

Michigan law provides: 
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If a person who is or may be liable for any claim fraudulently conceals the

existence of the claim or the identity of any person who is liable for the

claim from the knowledge of the person entitled to sue on the claim, the

action may be commenced at any time within 2 years after the person who

is entitled to bring the action discovers, or should have discovered, the

existence of the claim or the identity of the person who is liable for the

claim, although the action would otherwise be barred by the period of

limitations. M.C.L. § 600.5855

This statute tolls the statute of limitations “when a party conceals the fact that the

plaintiff has a cause of action.” Romeo Investment Ltd. v. Michigan Consolidated Gas

Company, 2007 WL 1264008 (Mich. App. Ct.) (citing Sills v. Oakland Gen. Hosp., 559

N.W.2d 348, 352 (Mich. App. Ct. 1996)). 

In cases which are brought in federal court under diversity jurisdiction, the

Federal Rules of Civil Procedure control the procedural aspects of the matter. See

Hanna v. Plumer, 380 U.S. 460 (1965). “While state law governs the burden of proving

fraud at trial in a diversity action in federal court, the procedure for pleading fraud in all

diversity suits in federal court is governed by the special pleading requirements of Fed.

R. Civ. P. 9(b).” Minger v. Green, 239 F.3d 793, 800 (6th Cir. 2001). Rule 9(b) provides:

“In alleging fraud or mistake, a party must state with particularity the

circumstances constituting fraud or mistake. Malice, intent, knowledge,

and other conditions of a person’s mind may be alleged generally.” 

The Sixth Circuit has interpreted this to “require that the acts constituting

fraudulent concealment of a claim be pled in the complaint.” Evans v. Pearson

Enterprises, Inc., 434 F.3d 839, 851 (2006); see also 5A Charles Alan Wright & Arthur

R. Miller, Federal Practice and Procedure § 1297 (3d ed. 2005) (noting that a “number

of courts have held that the language of Rule 9(b) requires a complaint in an action

based on fraud or an answer containing a defense or counterclaim based on fraud to
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allege all the traditional substantive elements of fraud”). “Three elements must be

pleaded in order to establish fraudulent concealment: (1) wrongful concealment of their

actions by defendants; (2) failure of the plaintiff to discover the operative facts that are

the basis of his cause of action within the limitations period; and (3) plaintiff’s due

diligence until discovery of the facts.” Dayco Corp. v. Goodyear Tire & Rubber Co., 523

F.2d 389, 394 (1975). The Court finds that Hennigan sufficiently pleads these three

elements. 

(1) Hennigan’s Allegations of Wrongful Concealment 

To properly toll a statute of limitations under fraudulent concealment, “[t]he

plaintiff must plead in the complaint the acts or misrepresentations that comprised the

fraudulent concealment and must prove that the defendant committed affirmative acts of

misrepresentation that were designed to prevent subsequent discovery.” Phinney v.

Perlmutter, 564 N.W.2d 532, 562-563 (1997). “Mere silence is insufficient.” Sills, 559

N.W.2d at 352. 

Hennigan alleges that GE:

(1) provided a patently false statement to the press: “The issue raised in the news

story – fire starting behind the control panel – has never been found to be a

problem in any model of GE microwave.”

(2) falsely denied any problems with its microwaves in response to consumers who

told a reporter that they were interested in filing a lawsuit against GE for its

Spacemaker microwaves.

(3) falsely assured consumers that there was no risk posed by its microwaves

because they have heat sensors that would shut them off before they ever

caught on fire.

(4) prevented the disclosure of information about the defective microwaves to the

public by objecting to requests made through the Freedom of Information Act to

the Consumer Product Safety Commission.
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(TAC ¶¶ 42, 45, 47, 51). 

Defendant says that, if anything, these are allegations that GE concealed the

facts underlying the cause of action, not the cause of action. (Reply Br. at 2) (citing

Winterhalter v. Watson Wyatt & Co., 87 Fed. Appx. 513, 519-20 (6th Cir. 2004). The

Defendant is mistaken. GE’s alleged concealment created an inability for Hennigan to

discover the cause of action. This is all that is required. 

GE also says that Hennigan does not allege the time, place, and content of the

alleged misrepresentations as required by the Sixth Circuit. See U.S. ex rel. Bledsoe v.

Comty Health Systems, Inc., 501 F.3d 493, 504 (6th Cir. 2007). The Court disagrees.

Hennigan alleges multiple false statements, the medium through which those

statements were made, and specific dates on which they were made. Hennigan pled

sufficient facts to show GE engaged in affirmative conduct that prevented Hennigan

from ascertaining the potential existence of a claim, and the statute of limitations is

tolled. 

(2) Failure of Hennigan to Discover the Cause of Action

Hennigan alleges that he purchased his microwave on or about February of

2001, and that it first malfunctioned on or about June 5, 2008. “Hennigan did not

suspect (and had no reason to suspect) that there was anything wrong with his

microwave oven until it malfunctioned.” (TAC ¶ 4). These allegations, if true, show that

Hennigan failed to discover the operative facts within the four year statute of limitations

period, should it have begun to run at the time the microwave was purchased. 

(3) Hennigan Exercised Due Diligence 
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GE argues that Hennigan did not allege that he acted diligently in attempting to

discover the basis for his claims. (Mot. at 15). Hennigan answers this charge with the

following: 

This argument may be the result of an error made by counsel for Plaintiffs. 

When Plaintiffs [sic] counsel filed its motion for leave to file the TAC, it

submitted a copy of the TAC. That copy contained additional allegations

that the Plaintiffs each acted diligently and reasonably but were

nonetheless unable to discover the basis for their claims because of the

misconduct of GE. TAC, ¶¶ 4-6. The Court granted Plaintiffs’ motion, and

Plaintiffs filed the TAC. As a result of a mistake, however, Plaintiffs filed a

version of the TAC that did not include these changes to paragraphs 4-6

of the Second Amended Complaint. Thus, GE’s motion to dismiss

appears to have been based upon a version of the TAC that was not

originally submitted with the motion for leave to amend. 

(Opp’n Br. at 17).

Hennigan alleges that “[p]rior to the time of the fire, Mr. Hennigan acted in a

diligent and reasonable manner as an owner of an appliance.” (TAC ¶ 4). GE argues

that this allegation is conclusory and is “not entitled to the presumption of truth.” (Reply

Br. at 1). However, a reasonable consumer would not, before a malfunction, suspect

his microwave is defective. Consumers have “no obligation to scour news reports from

other states–or to send FOIA requests to the CPSC—to look for information about their

microwave ovens.” (Opp’n Br. at 17). This Court finds Hennigan’s arguments

persuasive. Hennigan alleges that he acted with the diligence that a reasonable

consumer would demonstrate under the circumstances, and that is all he is required to

do. 

Therefore, this Court finds that Hennigan sufficiently alleges fraudulent

concealment; the Court declines to dismiss Hennigan’s claims of breach of express
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warranty. 

2. McHenry (Ohio Law)

 McHenry claims that GE expressly warranted the microwave he purchased and

that these warranties were part of the bargain. McHenry claims that GE breached these

warranties because the microwave he purchased was defective and GE refused to

repair or replace the microwave oven parts damaged by the defect.

McHenry alleges two express warranties: 

(1) “Defendant GE expressly warranted via its user manuals, advertisements,

pamphlets, brochures, circulars, samples, and models that its microwave ovens are fit

for the ordinary purpose in which such goods are used.” (TAC ¶ 64).

(2) “GE also expressly warranted in its user manuals that it would replace and

repair, free of charge, any part of its microwave ovens that failed due to a defect in

materials or workmanship within one year from the date of original purchase and any

part of its magnetron tube that fails due to a defect in materials or workmanship within

ten years of the date of original purchase.” (TAC ¶ 64). 

However, as an Exhibit C of McHenry’s opposition brief to GE’s motion to dismiss

shows, McHenry’s express warranty is one year from the date of original purchase. He

has no other express warranties. 

GE argues that McHenry’s claims for breach of express warranty should be

dismissed because (1) the alleged defect occurred after the express warranty period of

one year, (2) the claims are time-barred by the limitations period under Ohio law, and

(3) the limitations period that time-bars McHenry’s claims was not tolled. McHenry
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responds that, because the other Plaintiffs had a five or ten year warranty on their

magnetrons, he “is entitled to obtain discovery to establish whether his magnetron

warranty was indeed limited to one year, and if so why.” (Opp’n Br. at 20). McHenry

also says his claims are not time-barred because GE fraudulently concealed the defects

in the microwaves, which tolled the statute of limitations.

(1) McHenry’s Express Warranty Period

McHenry says that his “magnetron warranty appears to be limited to one year,”

although he doesn’t concede this. (Opp’n Br. at 10). He would like discovery to

determine whether GE “voluntarily extended this warranty.” (Id. at 10). However,

McHenry does not allege any facts to support the contention that GE voluntarily

extended his one year express warranty. Instead, McHenry suggests that the fact that

the other Plaintiffs had longer express warranties on their magnetrons is supportive of a

voluntary extension of McHenry’s warranty. McHenry is mistaken. 

McHenry also wants discovery to establish “whether GE reduced the warranty to

one year because it was aware of the defect” in the magnetrons. (Id. at 20). However,

he does not establish how this fact might impact his own express warranty. Thus,

McHenry’s express warranty period is one year. 

(2) The Statute of Limitations Period

GE argues that McHenry’s breach of express warranty claims are time barred

under Ohio’s applicable statute of limitations. Under Ohio law, claims for breach of

warranty must be commenced within four years from the date that the cause of action

accrues. Ohio Rev. Code § 1302.98(A). “A breach of warranty occurs when tender of
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delivery is made, except that where a warranty explicitly extends to future performance

of the goods and discovery of the breach must await the time of such performance, the

cause of action accrues when the breach is or should have been discovered.” Ohio.

Rev. Code § 1302.98(B). McHenry received his microwave as a gift on or about

December 2004. (TAC ¶ 5). McHenry claims that his microwave began operating

defectively in February of 2006. (TAC ¶ 5). Even if the Court finds that GE’s one year

warranty explicitly extended to future performance of the microwave, McHenry

discovered the defect after the expiration of the express warranty period. Thus, the

Court finds that McHenry’s claim for breach of express warranty accrued at the time

delivery was tendered. Even if the Court assumes that delivery was tendered when

McHenry received his microwave as a gift in December 2004, the four year limitations

period expired in December 2008, well before the Complaint was filed.

(3) Fraudulent Concealment

Although McHenry’s claims would be barred by the four year statute of

limitations, McHenry claims it was tolled by GE’s fraudulent concealment of the cause of

action. GE claims: (1) that McHenry’s allegations fail to meet the specificity required to

plead fraud under Fed. R. Civ. P. 9(b); and (2) McHenry’s allegations are insufficient to

support a claim of fraudulent concealment under Ohio law. 

“[U]nder certain circumstances Ohio law recognizes that concealment of a cause

of action can toll the statute of limitations.” Phelps v. Lengyel, 237 F. Supp. 2d 829, 836

(N.D. Ohio 2002). “In order for concealment to toll the statute of limitations, courts have

generally held that there must be something of an affirmative character designed to
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prevent, and which does prevent, discovery of the cause of action; or some actual

artifice to prevent knowledge of the fact; or some affirmative act of concealment or

misrepresentation to exclude suspicion and prevent inquiry.” Id. McHenry alleges the

same facts supporting fraudulent concealment as Hennigan. Thus, for the same

reasons that Hennigan’s allegations are sufficient to meet the pleading standard set

forth in Fed. R. Civ. P. 9(b), McHenry’s are, as well. This Court declines to dismiss

McHenry’s claims of breach of express warranty. 

3. Cocks (California Law)

Defendant does not dispute that Cocks’ claim for breach of express warranty is

timely. 

C. Breach of Implied Warranty of Merchantability (Count III)

1. Hennigan (Michigan Law)

GE claims that Hennigan’s breach of implied warranty of merchantability claims

are time-barred by the applicable statute of limitations. Under Michigan law, “[a]n action

for breach of any contract for sale must be commenced within 4 years after the cause of

action has accrued.” M.C.L. § 440.2725(1). “A cause of action accrues when the

breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. A

breach of warranty occurs when tender of delivery is made, except where a warranty

explicitly extends to future performance of the goods and discovery of the breach must

await the time of such performance the cause of action accrues when the breach is or

should have been discovered.” M.C.L. § 440.2725(2). However, “[t]his section does not

alter the law on tolling of the statute of limitations.” M.C.L. § 440.2725(4). 
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Hennigan’s cause of action for a breach of implied warranty accrued when he

purchased his microwave in February of 2001. GE says that “Michigan’s four year

statute of limitations expired in February 2005, more than four years before Hennigan

filed this action.” (Mot. at 19). GE is correct. However, this Court finds that Hennigan

properly pled fraudulent concealment under M.C.L. § 600.5855. Hennigan’s Complaint

was filed within the two year period allowed by the statute, and the Court declines to

dismiss his claim. 

2. McHenry (Ohio Law)

GE claims that McHenry’s breach of implied warranty of merchantability claims

are time-barred by the applicable statute of limitations. Additionally, GE claims that it

excluded all implied warranties in a conspicuous manner. 

a. Statute of Limitations

Under Ohio law, claims for breach of warranty must be commenced within four

years from the date that the cause of action accrues. Ohio Rev. Code § 1302.98(A). “A

breach of warranty occurs when tender of delivery is made, except that where a

warranty explicitly extends to future performance of the goods and discovery of the

breach must await the time of such performance, the cause of action accrues when the

breach is or should have been discovered.” Ohio. Rev. Code § 1302.98(B). McHenry

received his microwave as a gift on or about December 2004. (TAC ¶ 5). McHenry

alleges that his microwave began operating defectively in February of 2006. (TAC ¶ 5). 

McHenry does not argue that his warranty explicitly extended to future performance;

therefore, his claim accrued when delivery was tendered. Even assuming that delivery
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was tendered when McHenry received his microwave as a gift in December 2004, the

four year limitations period expired in December 2008. McHenry filed suit on May 19,

2009, after the expiration of the limitations period. However, the Court declines to

dismiss his breach of implied warranty claims; McHenry pleads facts which, if true, toll

the statute of limitations on his breach of implied warranty claims. 

b. Exclusion of Implied Warranty of Merchantability

“When a seller is a merchant with respect to subject goods, a warranty of

merchantability is implied in the sales contract as a matter of law unless it is excluded.”

Ohio Savings Bank v. H.L. Vokes Co., 560 N.E.2d 1328, 1334 (Ohio Ct. App. 1989).

Under Ohio law, “to exclude or modify the implied warranty of merchantability or any

part of it the language must mention merchantability and in case of a writing must be

conspicuous . . . . Language to exclude all implied warranties of fitness is sufficient if it

states for example, that ‘There are no warranties which extend beyond the description

on the face thereof.’” Ohio Rev. Code Ann. § 1302.29(B). Ohio law defines a

“conspicuous” provision as “when it is so written that a reasonable person against whom

it is to operate ought to have noticed it. A printed heading in capitals . . . is

‘conspicuous.’ Language in the body of a form is ‘conspicuous’ if it is in larger or other

contrasting type or color.” Ohio Rev. Code Ann. § 1301.01(J). The determination of

whether a provision is conspicuous is a finding for the court. Id. 

On the front page of the Owner’s Manual provided by GE to McHenry, the table

of contents lists the warranty on page 35. (Opp’n Br., Ex. C, at 1). On page 35 of the

Manual, GE states in large type “GE Microwave Oven One-Year Limited Warranty.”

(Opp’n Br., Ex. C, at 35). The page continues with smaller type, listing the express
20

warranty under one delineated section, how to make a warranty claim in another

delineated section, and what is not covered by the warranty in another delineated

section. At the end of the last section, entitled “What GE Will Not Cover,” GE writes in

bold type, “Exclusion of implied warranties.” Following this GE writes, “Except where

prohibited or restricted by law, there are no warranties, whether express, oral, or

statutory which extend beyond the description on the face hereof, including specifically

the implied warranties of merchantability or fitness for a particular purpose.” This

statement is not in bold type. 

In Ohio Savings Bank v. H.L. Vokes Co., the Ohio Court of Appeals found a

disclaimer of implied warranties valid where the words “appeared in contrasting solid

capital letters and contained the word ‘merchantability’ in the disclaiming language.” 560

N.E.2d at 1334. Similarly, in DG Equipment Co., v. Caterpillar, Inc., 2008 WL 4758672,

at *4 (S.D. Ohio 2008), a disclaimer in all caps and bold type explicitly containing the

term “merchantability” was found conspicuous under Ohio law. 

In contrast, the Ohio Court of Appeals found a disclaimer inconspicuous where it

was on the back page of a sales contract, was “buried in the middle of a full page of

small type, in a style identical to the rest of the text,” and did not mention

“merchantability.” Ressallat v. Burglar & Fire Alarms, Inc., 606 N.E.2d 1001, 1007 (Ohio

Ct. App. 1992); see also Insurance Co. of North America v. Automatic Sprinkler Corp.

Of America, 423 N.E.2d 151 (Ohio 1981) (finding disclaimer inconspicuous where it was

in an unnumbered paragraph, did not contain the term “merchantability,” and had no

extraordinary type). 

The attempted exclusion of implied warranties by GE is the same type and size
21

as the surrounding type in that section, with the exception of the heading, which is the

same type and size, but bold. While the heading to the disclaimer is in bold type, it is

certainly not as large or noticeable as the rest of the headings on the page. It is not

printed in capital letters, is not in larger type than the surrounding text, and is not in a

contrasting color. The only factor to consider is whether the bold type of the heading is

enough to make it conspicuous as a matter of law. 

The Court is not convinced that the provision is “so written that a reasonable

person against whom it is to operate ought to have noticed it.” The Court finds this

attempted disclaimer is not “conspicuous” under Ohio law. 

3. Cocks (California Law)

GE claims that Cock’s breach of implied warranty of merchantability claims fail

because (1) GE excluded all implied warranties in a conspicuous manner; and (2) he

does not allege privity with GE. Cocks responds that GE’s reliance on California’s

Uniform Commercial Code (UCC) is in error. Cocks argues that California’s SongBeverly Consumer Warranty Act (Beverly-Song Act) is the correct law to apply. 

a. Exclusion of Implied Warranty of Merchantability

Under the Song-Beverly Consumer Warranty Act, “every sale of consumer goods

that are sold in retail in [California] shall be accompanied by the manufacturer’s and the

retail seller’s implied warranty that the goods are merchantable,” unless properly

disclaimed. Cal. Civ. Code § 1792. “Consumer goods” is defined as “any new product .

. . used, bought, or leased for use primarily for personal, family, or household purposes,

except for clothing and consumables.” Id. at § 1791(a). The implied warranty of
22

merchantability under the Song-Beverly Act requires that consumer goods: “(1) Pass

without objection in the trade under the contract description. (2) Are fit for the ordinary

purposes for which such goods are used. (3) Are adequately contained, packaged, and

labeled. (4) Conform to the promises or affirmation of fact made on the container or

label.” Cal. Civ. Code § 1791(1)(a). 

Although Defendant argues that the UCC applies, the Beverly-Song Act provides:

“[W]here the provisions of the Commercial Code conflict with the rights guaranteed to

buyers of consumer goods under the provisions of this chapter, the provisions of this

chapter shall prevail.” Cal. Civ. Code § 1790.3. The meaning of this section is clear, “[t]o

‘the extent that the [Song-Beverly] Act gives rights to the buyers of consumer goods, it

prevails over conflicting provisions of the Uniform Commercial Code.’” Mexia v. Rinker

Boat Co., Inc., 174 Cal. Rptr. 3d 285, 290 (Cal. Ct. App. 2009). 

Because a microwave is a consumer good, the Court looks to the Beverly-Song

Act to determine whether the implied warranty of merchantability has been disclaimed. 

According to the Act, “[n]o implied warranty of merchantability . . . shall be waived,

except in the case of a sale of consumer goods on an ‘as is’ or ‘with all faults’ basis

where the provisions of this chapter affecting ‘as is’ or ‘with all faults’ sales are strictly

complied with.” Cal. Civ. Code § 1792.3. According to § 1792.4 of the Act:

(a) No sale of goods, governed by the provisions of this chapter, on an “as

is” or “with all faults” basis, shall be effective to disclaim the implied

warranty of merchantability or, where applicable, the implied warranty of

fitness, unless a conspicuous writing is attached to the goods which

clearly informs the buyer, prior to the sale, in simple and concise language

of each of the following:

(1) The goods are being sold on an “as is” or “with all faults” basis.

(2) The entire risk as to the quality and performance of the goods is with
23

the buyer.

(3) Should the goods prove defective following their purchase, the buyer

and not the manufacturer, distributor, or retailer assumes the entire cost of

all necessary servicing or repair

The attempted disclaimer by GE did not satisfy the requirements of disclaimer under the

Beverly-Song Act. 

Furthermore, the Beverly-Song Act does not allow manufacturers to limit, modify,

or disclaim implied warranties where express warranties are given. Cal. Civ. Code §

1793. Because GE gave Cocks an express warranty, the Court finds GE’s attempted

disclaimer of the implied warranty of merchantability, ineffective. 

b. Privity

GE also argues that Cocks’ claim must be dismissed because California law

requires privity in claims for breach of implied warranties. “‘The general rule is that

privity of contract is required in an action for breach of either express or implied

warranty and that there is no privity between the original seller and a subsequent

purchaser who is in no way a party to the original sale.’” Blanco v. Baxter Health Corp.,

70 Cal. Rptr. 3d 566, 528 (Cal. App. 4 Dist. 2008) (citing All West Electronics, Inc. v. MB-W, Inc., 64 Cal. Rptr. 2d 509 (Cal. App. 5 Dist. 1998)). However, there is a split of

authority under California law as to whether the general requirement of vertical privity

for breach of warranty is required for claims brought under the Song-Beverly Act. See

Bruce v. Harley-Davidson, Inc., 2010 WL 3521775, at *9 (C.D. Cal. 2010)

(acknowledging the split in case law, but finding “the better reasoned case law does not

require[ ] plaintiffs to be in vertical privity with defendants under the Song-Beverly Act”);

Nvidia GPU Litigation, 2009 WL 4020104, at *4 (N.D. Cal. 2009) (discussing the split in
24

case law). 

The Song-Beverly Act provides, “every sale of consumer goods that are sold at

retail in this state shall be accompanied by the manufacturer’s and the retail seller’s

implied warranty that the goods are merchantable.” Cal. Civ. Code § 1792.1. The

language of the Act does not require privity and appears to contemplate that consumers

will be able to enforce warranties against manufacturers. See Gusse v. Damon Corp.,

470 F.Supp.2d 1110, 1116 n. 9 (C.D. Cal. 2007) (“Although Damon also argues that the

implied warranty claims should be dismissed because there is no vertical privity

between Gusse and the manufacturer, this argument ignores the plain language of the

Song-Beverly Act.”); Nvidia GPU Litigation, 2009 WL 4020104, at *4 (noting that “the

plain language of the Song-Beverly Act does not require vertical contractual privity

between a manufacturer and consumer”). According to California courts, the SongBeverly Act “‘is strongly pro-consumer’ and ‘makes clear its pro-consumer remedies are

in addition to those available to a consumer pursuant to the [Uniform] Commercial

Code. . . .’” Morgan v. Harmonix Music Systems, Inc., 2009 WL 2031765, at *1 (N.D.

Cal. 2009) (citing Murillo v. Fleetwood Enterprises, Inc., 17 Cal. 4th 985, 990 (1998). 

Based on the language of the statute and the pro-consumer nature of the SongBeverly Act, the Court declines to dismiss Cocks’ claim for breach of implied warranty. 

D. Violation of The Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq.

(Count IV)

The Magnuson-Moss Warranty Act provides that “a consumer who is damaged

by the failure of a supplier, warrantor, or service contractor to comply with any obligation

under this chapter, or under a written warranty, implied warranty, or service contract,
25

may bring suit for damages and other legal and equitable relief.” 15 U.S.C. § 2310(d)(1). 

It permits “consumers to enforce written and implied warranties in federal court,

borrowing state law causes of action.” Pearson & Son Excavating Co., Inc. v. Western

Recreational Vehicles, Inc., 2007 WL 836603, at *1-2 (E.D. Mich. 2007). GE claims the

because the Plaintiffs’ state law breach of warranty claims fail, their Magnuson-Moss

Warranty claims fail, as well. 

Because the Court declines to dismiss Hennigan’s, McHenry’s, and Cock’s state

law breach of warranty claims, the Court declines to dismiss their Magnuson-Moss

Warranty Act claims. 

E. Hennigan and Cocks’ Claims for Violation of the State Consumer

Protection Acts (Count V) 

Hennigan and Cocks allege that: (1) GE concealed and/or failed to inform them

that their microwaves were defective; and (2) such concealment and/or failure to inform

violates the Michigan Consumer Protection Act, MCLA §445.901 et seq, and the laws of

California. 

GE says Hennigan’s claim is barred by the statute of limitations, and Cocks does

not satisfy the heightened pleading requirements of Fed. R. Civ. P. 9(b).

1. Hennigan (Michigan Law)

MCLA §445.911(7) says: “An action under this section shall not be brought more

than 6 years after the occurrence of the method, act, or practice which is the subject of

the action[.]”
26

The parties do not dispute that the statute of limitations began to run when

Hennigan purchased his microwave in February 2001. Accordingly, the statute of

limitations expired in February of 2007.

However, Hennigan argues that the statute of limitations is tolled because GE

concealed the fact that he had a cause of action. See M.C.L. §600.5855.

The Court finds Hennigan pled sufficient facts to show GE engaged in affirmative

conduct that prevented Hennigan from ascertaining the potential existence of a claim

under the Michigan Consumer Protection Act, and the statute of limitations is tolled.

Hennigan alleges that he discovered the microwave was defective on June 5,

2008. Accordingly, he had until June 5, 2010 to file a Complaint. Hennigan’s Complaint

was timely filed on May 19, 2009.

The Court declines to dismiss Hennigan’s Michigan Consumer Protection Act

claim. 

2. Cocks (California Law)

California’s Consumer Legal Remedies Act (CLRA) prohibits “unfair methods of

competition and unfair or deceptive acts or practices undertaken by any person in any

transaction intended to result or which results in the sale . . . of goods or services to any

consumer.” Cal. Civ. Code §1770. Under the Unfair Competition Law (UCL), unfair

competition is “any unlawful, unfair or fraudulent business act or practice and unfair,

deceptive, untrue or misleading advertising.” Cal. Bus. & Prof. Code § 17200. GE

contends that Cocks failed to state a claim under these statutes because he did not

allege his claims with the particularity required by Fed. R. Civ. P. 9(b). Cocks responds
27

that Rule 9(b) doesn’t apply to these claim because fraud is not an essential element

under either. 

Under Rule 9(b), all averments of fraud must be stated with particularity. The

Sixth Circuit has recognized that the particularity requirement of Rule 9(b) applies to

cases in federal court even where state law supplies the cause of action. See Minger v.

Green, 239 F.3d 793, 800 (6th Cir. 2001). Fraud is not an essential element of a case

under the UCL or CLRA. Vess v. Ciba-Geiby Corp. U.S.A., 317 F.3d 1097, 1107 (9th

Cir. 2003). “In cases where fraud is not a necessary element of a claim, a plaintiff may

choose nonetheless to allege in the complaint that the defendant has engaged in

fraudulent conduct. In some cases, the plaintiff may allege a unified course of fraudulent

conduct and rely entirely on that course of conduct as the basis of a claim. In that event,

the claim is said to be ‘grounded in fraud’ or to ‘sound in fraud,’ and the pleading of that

claim as a whole must satisfy the particularity requirement of Rule 9(b).” Vess, 317 F.3d

at 1103-04; see also Indiana State Dist. Council of Laborers v. Omnicare, Inc. 583 F.3d

935, 942 (6th Cir. 2009) (noting that claims which sound in fraud must comply with Rule

9(b)). Thus, where a claim alleges that the defendant engaged in “fraudulent conduct”

under the CLRA and UCL, the claims sound in fraud and must be pleaded with

particularity. See Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009). 

“Fraud can be averred by specifically alleging fraud, or by alleging facts that

necessarily constitute fraud (even if the word ‘fraud’ is not used).” Vess, 317 F.3d at

1105. Under California law, the elements of fraud are “(a) misrepresentation (false
28

representation, concealment, or nondisclosure); (b) knowledge of falsity (or scienter); (c)

intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting

damages.” Engalla v. Permanente Medical Group, Inc., 15 Cal. 4th 951, 974 (Cal. 1997)

(internal quotes omitted). Thus, misrepresentation, concealment, and nondisclosure are

all fraud claims which must be pleaded with particularity pursuant to Rule 9(b). See

Kearns, 567 F.3d at 1127. 

Cocks says his UCL and CLRA claims are not premised on fraud, and that to the

extent he alleges any fraud, it is in relation to the statute of limitations issue. However,

California law recognizes that misrepresentation, concealment, and nondisclosure are

all types of fraud. Thus, Cocks alleged fraud as the basis of his claims under the CLRA

and UCL and must comply with Rule 9(b) to sufficiently state a claim.

Cocks alleges that GE was aware of dangerous defects in its microwaves, yet

actively tried to conceal these defects by making false statements to the press and to

consumers. Cocks alleges GE withheld information from the Consumer Product Safety

Commission and violated federal laws by not reporting the known defects. Cocks

alleges multiple false statements, the medium through which those statements were

made, and specific dates on which they were made. For the same reasons that

Plaintiffs adequately plead fraudulent concealment, the Court finds that Cocks

adequately pleads fraud to support his claims under the UCL and CLRA. 

F. Hennigan and Cocks’ Claim for Unjust Enrichment (Count VI)

1. Hennigan (Michigan Law)
29

“The elements of a claim for unjust enrichment are: (1) receipt of a benefit by the

defendant from the plaintiff and (2) an inequity resulting to plaintiff because of the

retention of the benefit by defendant.” Barber v. SMH (US), Inc., 202 Mich. App. 366,

375 (1993) (citing Dumas v. Auto Club Ins. Ass’n, 437 Mich. 521, 546 (1991)).

In light of the fact that the published Michigan cases do not require a direct

benefit to GE from Hennigan, the Court is not persuaded by GE’s reliance on an

unpublished case to support its position that Hennigan’s claim fails because he must

show GE received a “direct payment or . . . benefit.” See M.C.R. 7.215(C)(1) (“An

unpublished opinion is not precedentially binding under the rule of stare decisis”). 

In addition, under Fed. R. Civ. P. 8(e)(2), a party may plead a contract claim and

an alternative claim for unjust enrichment. See Truck Country of Iowa, Inc. v. R&J

Truck Sales, LLC, 2008 WL 2026141 at *9 (E.D. Mich. May 9, 2008) (citation omitted).

The Court declines to dismiss Hennigan’s unjust enrichment claim.

2. Cocks (California Law)

To state a claim for unjust enrichment under California law, a plaintiff must allege

(1) defendant’s receipt of a benefit and (2) that the benefit was unjustly retained at the

plaintiff’s expense. Peterson v. Cellco P’ship., 164 Cal. App. 4th 1583, 1593 (Ca. Ct.

App. 2008). 

GE claims that Cocks must allege mistake, fraud, coercion or request as the

basis for his unjust enrichment claim. (Mot. at 45). However, the case GE relies on

does not stand for this proposition. California law does not require fraud or wrongdoing.

See Frank v. Tavares, 142 Cal. App. 2d 683, 688 (Cal. Ct. App. 1956). California
30

requires that a plaintiff allege that the defendant’s retention of the benefit is unjust, and

Cocks does so. (See TAC ¶ 94). 

In addition, under Fed. R. Civ. P. 8(e)(2), a party may plead a contract claim and

an alternative claim for unjust enrichment. See Truck Country of Iowa, Inc. v. R&J

Truck Sales, LLC, 2008 WL 2026141 at *9 (E.D. Mich. May 9, 2008) (citation omitted).

The Court declines to dismiss Cocks’ unjust enrichment claim. 

V. CONCLUSION

GE’s motion is GRANTED IN PART AND DENIED IN PART. 

The Court DISMISSES McHenry’s strict products liability claim (Count I).

The following claims will proceed to trial:

(1) Hennigan’s, McHenry’s, and Cocks’ breach of express warranty claims (Count II);

(2) Hennigan’s, McHenry’s, and Cocks’ breach of implied warranty of merchantability

claims (Count III);

(3) Hennigan’s, McHenry’s, and Cocks’ claims for violations of the Magnuson-Moss

Warranty Act (Count IV);

(4) Hennigan’s and Cocks’ claims for violations of state consumer protection laws

(Count V);

(5) Hennigan’s and Cocks’ unjust enrichment claims (Count VI). 

IT IS ORDERED.

s/Victoria A. Roberts 

Victoria A. Roberts

United States District Judge

Dated: September 29, 2010
31

The undersigned certifies that a copy of this

document was served on the attorneys of

record by electronic means or U.S. Mail on

September 29, 2010.

s/Linda Vertriest 

Deputy Clerk