Cummings v. HPG International, Inc.

United States Court of Appeals
For the First Circuit
____________________

No. 00-1842

WILLIAM S. CUMMINGS AND JOYCE M. CUMMINGS, TRUSTEES OF
W.S. CUMMINGS REALTY TRUST, LUNDQUIST, INC.,
6 WCP, INC., AND ST. THOMAS REALTY FUND, INC.,

Plaintiffs, Appellants,

v.

HPG INTERNATIONAL, INC.

Defendant, Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

____________________

Before

Selya, Lynch, and Lipez, Circuit Judges.

____________________

David R. Suny, with whom Susan F. Brand and Cummings Properties,
LLC, were on brief, for appellants.
Jeffrey M. Graeber, with whom Graeber & Davis, P.C., Kenneth H.
Zucker, Michael S. Hino, Stuart D. Lurie, and Pepper Hamilton LLP, were
on brief, for appellee.

____________________
 March 22, 2001
____________________

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 LYNCH, Circuit Judge. In the early 1980s, Cummings

Properties bought several roofs manufactured by HPG International. The

roofs were installed on commercial buildings in Woburn and Burlington,

Massachusetts. The roofs were composed of unreinforced polyvinyl

chloride membranes and were sold with ten year warranties. After the

warranty period, Cummings learned that such PVC roofs were subject to

catastrophic failure and, in 1997, inquired of HPG. HPG recommended

the immediate replacement of all of the roofs. Before Cummings did so,

one of the roofs shattered and had to be replaced, mid-winter.

Although the roofs had outlasted the warranty periods,

Cummings sued for deceit and negligent misrepresentation, based on oral

statements HPG had made at the time of sale. Cummings also sued for

violations of Mass. Gen. Laws ch. 93A, saying, inter alia, that HPG at

least had a duty to warn, both before and after the end of the ten year

warranty period.

The district court entered summary judgment for HPG on all

claims. The case presents numerous issues under Massachusetts

commercial law.

I.

On appeal from entry of summary judgment, we summarize the

facts in the light most favorable to plaintiffs.1

In 1980, Cummings sought to replace the roof on one of

1 Plaintiffs include William S. and Joyce M. Cummings, trustees
of the W.S. Cummings Realty Trust; Lundquist, Inc. and 6 WCP, Inc.,
subsidiaries of the Trust; and St. Thomas Realty Fund, Inc., a Trust
affiliate. Collectively we call them "Cummings."

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several commercial buildings in Massachusetts that it owns. Cummings

considered a variety of roofing systems on the market, including

unreinforced polyvinyl chloride (PVC) membrane roofs manufactured by

HPG International. During several meetings between HPG and Cummings,

HPG representatives told Cummings that their PVC roof: 1) would last

20 years; 2) would perform better and last the same or longer than

other commercial roof systems on the market; and 3) was suitable for

use in the variable climate of Massachusetts. In 1980, 1981, and 1983,

Cummings purchased unreinforced PVC roofs from HPG for three of their

buildings. In 1990, St. Thomas Realty Fund, Inc., a Cummings entity,

purchased a building which had had such a HPG roof installed in 1986.

Each roof carried with it a ten year warranty, which covered any

condition caused by defective material supplied by HPG.

Unreinforced PVC membrane roofs proved to be prone to

"shattering," or sudden fragmentation of the membrane. Unreinforced

PVC roofs are most likely to shatter in cold weather. HPG learned of

the problem as early as 1988, but it is not clear how well known the

shattering phenomenon was before that time. By 1990, HPG maintained a

log of "Shatter Occurrences" documenting 121 of its roofs that had

shattered, at an average age of between eight to ten years.

In 1990, two roofing companies elsewhere that had installed

HPG unreinforced PVC membrane roofs contacted HPG about the shattering

problem. One asked HPG to join it in sending a notice to owners of

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those roofs to warn them of the defect and to recommend remedial action

to prevent possible future shattering. The other, a warranty service

contractor for HPG, expressed concern about the risk of shattering and

urged HPG to issue a statement. It also suggested HPG offer reduced

price upgrades on out-of-warranty roofs to prevent shattering. HPG

apparently did not act on those suggestions, nor did it notify Cummings

of the shattering phenomenon.

Also in 1990, two roofing industry trade groups issued a

joint paper documenting the shattering phenomenon occurring in

unreinforced PVC roofs and recommending safety and replacement

procedures. Another paper, published sometime after 1992, documented

problems between 1979 and 1984 with unreinforced PVC roofs such as

embrittlement, shrinkage, and impact fractures, although it was unclear

whether there were any incidents of shattering during that period.

Cummings learned of the shattering phenomenon around 1997 and

contacted HPG, which recommended the immediate replacement of Cummings'

unreinforced roofs. Before Cummings had taken any action, however, on

December 15, 1997, the roof installed in 1980 shattered, forcing

Cummings to replace it on an emergency basis. Cummings has since

replaced two of the remaining three roofs as a precaution, and plans to

replace the fourth roof soon. HPG has refused to assume financial

responsibility for those replacements.

Cummings instituted this action seeking compensation for the

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costs associated with replacing the four roofs, claiming that HPG made

representations about the useful life and quality of the roofs which,

in light of the shattering defect, were false and misleading. Cummings

says it relied on HPG's false representations and, since the roofs did

not last 20 years or perform better than other roofs, the fact that the

warranties have expired should not bar its claims. Cummings also

alleges that HPG committed unfair practices in violation of

Massachusetts' consumer protection law, Mass. Gen. Laws ch. 93A, § 11,

because HPG failed to warn it of the shattering defect, which HPG

allegedly knew about by 1988, while Cummings' warranties were still in

effect.

The district court granted summary judgment in favor of HPG,

concluding that HPG's representations were non-actionable statements of

opinion, and also finding that there was no evidence HPG knew the

statements were false at the time they were made. The court held that

HPG had not violated Chapter 93A by failing to warn Cummings about the

risk of shattering, if a duty to warn existed at all. HPG was also

granted summary judgment on Cummings' claim based on the roof owned by

plaintiff St. Thomas Realty, as the court found no evidence that St.

Thomas Realty's predecessor was the recipient of any false

representations.

II.

We review de novo the district court's grant of summary

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judgment. Thomas v. Eastman Kodak Co., 183 F.3d 38, 47 (1st Cir.

1999), cert. denied, 528 U.S. 1161 (2000). Summary judgment is

appropriate if "the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law." Id. (quoting Fed.

R. Civ. P. 56(c)). Massachusetts law governs.

A. The Misrepresentation Claims

At first blush, it seems odd to permit an action for either

deceit or negligent misrepresentation where the supposed

misrepresentation is the subject of an express warranty (which

disclaims all other warranties by its terms) and it is clear there was

no breach of that warranty. In general, under Massachusetts law, if

"the contract was fully negotiated and voluntarily signed, [then]

plaintiffs may not raise as fraudulent any prior oral assertion

inconsistent with a contract provision that specifically addresses the

particular point at issue." Starr v. Fordham, 648 N.E.2d 1261, 1268

(Mass. 1995) (quoting Turner v. Johnson & Johnson, 809 F.2d 90, 97 (1st

Cir. 1986)).

But as to deceit actions, Massachusetts courts, for public

policy reasons, have long held that a party cannot induce a contract by

fraudulent misrepresentations and then use contractual devices to

escape liability. See Bates v. Southgate, 31 N.E.2d 551, 558 (Mass.

-7-
1941) ("[C]ontracts or clauses attempting to protect a party against

the consequences of his own fraud are against public policy and void

where fraud inducing the contract is shown . . .."). Here, Cummings

claims that it would not have bought the roofs but for HPG's

misrepresentations, and so its deceit claim, based on HPG's allegedly

fraudulent misrepresentations, is not barred by the existence of an

express warranty.

As for Cummings' negligent misrepresentation claim, in some

circumstances an express warranty will operate as a bar to recovery.

Where the legality of the bargaining process is not at issue, a party

cannot avoid its contractual obligations by seeking recovery for

negligent misrepresentation. See Sound Techniques, Inc. v. Hoffman,

737 N.E.2d 920, 927 (Mass. App. Ct. 2000) (declining to "ignore our

general policy of upholding freedom to contract by allowing [plaintiff]

to avoid a contractual disclaimer that it agreed to, uninfluenced by

any fraud or other egregious or intentional misbehavior on

[defendant's] part"). The express warranty in this case does not

contain an integration clause like the one in Sound Techniques, which

stated that the party "has not been influenced to enter into this

transaction nor has [it] relied upon any warranties or representations

not set forth in this instrument." Id. at 922.2 We do not, however,

2 Indeed, the record only includes warranties for two of the
four roofs that are the subject of this litigation. Those warranties
purport to disclaim all other warranties, in general terms, but do not

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explore whether this difference in warranty language matters under

state law, as HPG has not argued this point.

1. Opinion v. Fact

There is an important threshold determination for any

misrepresentation claim, be it for deceit or for negligent

misrepresentation: only statements of fact are actionable; statements

of opinion cannot give rise to a deceit action, McEneaney v. Chestnut

Hill Realty Corp., 650 N.E.2d 93, 96 (Mass. App. Ct. 1995), or to a

negligent misrepresentation action, Logan Equip. Corp. v. Simon

Aerials, Inc., 736 F. Supp. 1188, 1199 (D. Mass. 1990) Cummings argues

that the district court erred in concluding that HPG's representations

about its roofs were non-actionable statements of opinion. As to the

first statement -- that the roof would last twenty years -- we do not

consider it to be a statement of opinion. The second statement, the

supposed superiority of the PVC product, does fall in the opinion

category, as normal commercial puffing. HPG's statement that the roof

was suitable for the New England Climate is close to the line between

the two categories, but it is at least arguably more like a statement

of fact than of opinion.

To draw the difficult distinction between a statement of fact

and a statement of opinion, Massachusetts courts have looked to the

contain any type of integration clause disclaiming any representations
or warranties not set forth in the agreement.

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Restatement (Second) of Torts, which provides that a representation is

one of opinion "if it expresses only (a) the belief of the maker,

without certainty, as to the existence of fact; or (b) his judgment as

to quality, value, authenticity, or other matters of judgment."

Restatement (Second) of Torts § 538A (1977), quoted in McEneaney, 650

N.E.2d at 96. Statements touting the superlative quality of an item,

such as "mint condition" or "prime merchandise" are considered mere

"puffing" or "seller's talk," non-actionable statements of opinion.

Greenery Rehab. Group, Inc. v. Antaramian, 628 N.E.2d 1291, 1293 (Mass.

App. Ct. 1994); see also Powell v. Rasmussen, 243 N.E.2d 167, 168

(Mass. 1969) (statements of mere opinion, estimate, or judgment cannot

give rise to deceit action).

In contrast, statements that are susceptible of actual

knowledge can give rise to a claim of deceit, if those statements are

false. Zimmerman v. Kent, 575 N.E.2d 70, 74-75 (Mass. App. Ct. 1991).

For example, a statement by the builder of a house that "there would be

no water in the cellar" was deemed an actionable misrepresentation

because it was susceptible of the builder's actual knowledge, Pietrazak

v. McDermott, 167 N.E.2d 166 (Mass. 1960), as was a false

representation by a corporate agent about a corporation's net worth,

Gopen v. American Supply Co., 407 N.E.2d 1255, 1257 (Mass. App. Ct.

1980). Even a statement that in form is one of opinion "may constitute

a statement of fact if it may reasonably be understood by the recipient

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as implying that there are facts to justify the opinion or at least

that there are no facts that are incompatible with it." McEneaney, 650

N.E.2d at 96. Here, HPG's representation that their roofs would last

twenty years was specific and verifiable, not a mere expression of

opinion or estimate. That statement was susceptible of HPG's actual

knowledge, and, even if opinion, indicated that HPG, the manufacturer

of the roofs, knew facts to justify its statement. Similarly, HPG's

statement that the roofs were suitable for the Massachusetts climate is

at least arguably a statement of fact.

2. Elements of Deceit

The borderline between what is an action for deceit and what

is an action for negligent misrepresentation is unclear under

Massachusetts case law. In an action for deceit under Massachusetts

law, a plaintiff must show that the defendant: made a false

representation of material fact; for the purpose of inducing reliance;

and that plaintiff relied upon the representation to his or her

detriment. Danca v. Taunton Sav. Bank, 429 N.E.2d 1129, 1133 (Mass.

1982); Snyder v. Sperry and Hutchinson Co., 333 N.E.2d 421, 428 (Mass.

1975). Proof of intent to deceive is not required, so long as there is

proof of a false representation of fact susceptible of the speaker's

knowledge. Snyder, 333 N.E.2d at 428. The uncertainty has to do with

what role the speaker's knowledge of the falsity plays.

Many Massachusetts cases say that an element of deceit is

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that the speaker "made a false representation of a material fact with

knowledge of its falsity." Danca, 429 N.E.2d at 1133 (emphasis added);

see also Slaney v. Westwood Auto, Inc., 322 N.E.2d 768, 779 (Mass.

1975) (comparing common law fraud to Chapter 93A claim); Barrett Assoc.

v. Aronson, 190 N.E.2d 867, 868 (Mass. 1963); Kilroy v. Baron, 95

N.E.2d 190, 191 (Mass. 1950); Rood v. Newberg, 718 N.E.2d 886, 892

(Mass. App. Ct. 1999); accord Borden v. Paul Revere Life Ins. Co., 935

F.2d 370, 379 (1st Cir. 1991). But other deceit cases say "plaintiffs

need not prove that [defendant] knew his statement to be false" so long

as there is proof that the representation was false and susceptible of

actual knowledge. Nickerson v. Matco Tools Corp., 813 F.2d 529, 530

(1st Cir. 1987); see also VMark Software, Inc. v. EMC Corp., 642 N.E.2d

587, 593 n.9 (Mass. App. Ct. 1994) (speaker need not know statement is

false if fact represented is susceptible of actual knowledge);

Zimmerman, 575 N.E.2d 70 at 74 (same); Acushnet Fed. Credit Union v.

Roderick, 530 N.E.2d 1243, 1244-45 (Mass. App. Ct. 1988) (same).

At the very least, there is a lack of clarity in

Massachusetts case law. See In re Friedlander, 170 B.R. 472, 476-78

(Bankr. D. Mass. 1994) (noting confusion). The confusion may stem from

the mixing of the concept of knowledge with the concept of intent to

deceive, or from use of language without an effort to distinguish which

sort of misrepresentation is alleged. The Supreme Judicial Court has

not, as best we can tell, addressed this question. But it has referred

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to the Restatement (Second) of Torts in this area, see Robertson v.

Gaston Snow & Ely Bartlett, 536 N.E.2d 344, 349 (Mass.) (intentional

misrepresentation), cert denied, 493 U.S. 894 (1989); Rasmussen, 243

N.E.2d at 168-69 (same); Danca, 429 N.E.2d at 1134 (negligent

misrepresentation), so we will use those Restatement definitions.

Since Massachusetts considers deceit to be a variety of

fraud, we utilize the definition in Restatement (Second) of Torts §

526:

A misrepresentation is fraudulent if the maker
(a) knows or believes that the matter is not as
he represents it to be, (b) does not have the
confidence in the accuracy of his representation
that he states or implies, or (c) knows that he
does not have the basis for his representation
that he states or implies.

"Knowledge" for the purpose of showing fraud is established by any of

these three conditions. A claim of deceit has been categorized as an

intentional tort, Mohr v. Com, 653 N.E.2d 1104, 1115 n.16 (Mass. 1995);

G & B Assoc. v. Springfield, 653 N.E.2d 203, 205 (Mass. App. Ct. 1995).

As will be discussed later, "[m]ere negligence in discovering the

falsity before making the representation is not sufficient for an

action in tort for deceit, but it is enough for an action in

negligence." 37 J. Nolan & L. Sartorio, Massachusetts Practice § 143

at 240-41 (2d ed. 1989). A defendant who makes a false statement may

be liable for deceit if he implicitly conveyed that he had knowledge of

the represented fact. See McEneaney, 650 N.E.2d at 96; Restatement

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(Second) of Torts § 526.

The issue is whether, at the time HPG made the statements,

HPG knew that the statements were false within the Restatement test.

See Zimmerman, 575 N.E.2d at 74. Here, Cummings has failed to offer

evidence that HPG had any basis for knowledge that the statements, at

the time they were made, were false, a failure that is fatal to

Cummings' deceit claim. See id. at 74-75.

The latest that HPG could have made any allegedly false

representations was 1986, assuming arguendo that Cummings can maintain

a claim based on the 1986 roof on a building sold to St. Thomas Realty

in 1990, see infra. Cummings offers a single article, dated 1986,

reporting problems (other than shattering) with PVC roofs in the early

1980s, and admits that it has no basis to impute knowledge of that

report to HPG at the time of the sales. The letters and the other

articles Cummings relies on post-date the 1986 sale, as does the

shatter log, which shows that by 1990, HPG had tracked claims of 121

shattered roofs. There is simply no evidence to suggest that HPG knew

or should have known that its statements about its product were false,

in the Restatement sense, when HPG made the statements.

3. Negligent Misrepresentation

Cummings also pursues a negligent misrepresentation claim,

which, under Massachusetts law, requires it to prove that HPG provided

it with false information and "with failure to exercise reasonable care

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or competence in obtaining or communicating the information." Nota

Constr. Corp. v. Keyes Assoc., 694 N.E.2d 401, 405 (Mass. App. Ct.

1998).

a. Economic Loss Doctrine

The district court dismissed the negligent misrepresentation

claim, predicting that Massachusetts courts would apply the "economic

loss doctrine" in a new context -- to preclude claims of negligent

misrepresentation about statements as to the viability of products made

in a commercial setting to induce the purchase of products where the

product is subject to warranties. The district court relied on the

thoughtful analysis of the question contained in Sebago, Inc. v. Beazer

East, Inc., 18 F. Supp. 2d. 70 (D. Mass. 1998).

In the context of ordinary negligence claims in tort actions,

the Supreme Judicial Court has held that "purely economic losses are

unrecoverable in tort and strict liability actions in the absence of

personal injury or property damage." FMR Corp. v. Boston Edison Co.,

613 N.E.2d 902, 903 (Mass. 1993) (rejecting claim that negligent repair

of electric lines caused power outages which caused loss of profits);

accord Garweth Corp. v. Boston Edison Co., 613 N.E.2d 92, 93-94 (Mass.

1993) (rejecting claim that negligent oil spill caused damages for

delay in ability to complete contract work). The SJC thus aligned

itself with the majority rule as to the economic loss doctrine and

cited a Supreme Court case which held that where a commercial product

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injures itself and nothing or no one else, there is no need to create

a product liability cause of action independent of contract obligation.

See FMR Corp., 613 N.E.2d at 903 (citing East River Steamship Corp. v.

Transamerica Delaval, Inc., 476 U.S. 858, 871-75 (1986)).

On the other side of the issue, as the district court here

and in Sebago recognized, Danca suggests that the economic injury rule

does not apply to bar negligent misrepresentation claims. Danca

recognized a cause of action against a bank that made

misrepresentations that led to plaintiffs proceeding to a sale which

they otherwise would have cancelled. Danca, 429 N.E.2d at 1134. The

court handled the overlap between this tort and contractual obligations

by using special damages rules. Id. Danca can perhaps be

distinguished, as Sebago suggests, as a case in which the contract

obligation and the tort liability were not entirely coextensive because

the misrepresentation claim stemmed from the provision of services, and

not a defective product. See Sebago, 18 F. Supp. 2d at 96. But in

1998 the Massachusetts Appeals Court flatly stated, without drawing

distinctions, that "[a]n exception to the [economic loss] doctrine

permits recovery for economic losses resulting from negligent

misrepresentation." Nota, 694 N.E.2d at 405.

It is not clear to us which route Massachusetts will take as

to the application of the economic loss doctrine to negligent

misrepresentation claims. It may choose the FMR model or it may choose

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the Danca model, or do something else. As a result, we turn to a more

traditional form of analysis, which disposes of the claim.

b. Elements of Negligent Misrepresentation

Looking to the Restatement (Second) of Torts definition,

Massachusetts courts have held that in order to recover for negligent

misrepresentation, a plaintiff must show that the defendant: (1) in the

course of its business, (2) supplied false information for the guidance

of others (3) in their business transactions, (4) causing and resulting

in pecuniary loss to those others (5) by their justifiable reliance

upon the information, and (6) that it failed to exercise reasonable

care or competence in obtaining or communicating the information. Fox

v. F & J Gattozzi Corp., 672 N.E.2d 547, 551 (Mass. App. Ct. 1996)

(citing Restatement (Second) of Torts § 552(1) (1977)); see also

Massachusetts School of Law at Andover, Inc. v. American Bar Ass'n, 142

F.3d 26, 41 (1st Cir. 1998). Although courts sometimes analyze

negligent misrepresentation claims and deceit claims together, the

degree of culpability a plaintiff must prove to establish liability for

negligent misrepresentation is different, and less demanding, than that

to establish liability for deceit. See Sound Techniques, 737 N.E.2d at

926 ("Fraud and [negligent misrepresentation] embody two different

states of mind . . ..") (quoting Snyder v. Lovercheck, 992 P.2d 1079,

1088 (Wy. 1999)); W. Page Keeton, ed., Prosser and Keeton on Torts, §

107 at 742 (5th ed. 1984) (scienter element distinguishes deceit action

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from negligent misrepresentation action).

In general, Massachusetts courts treat negligent

misrepresentation claims more as negligence actions than deceit

actions, focusing on the degree of care exercised by the speaker in

making the statement. See Danca, 429 N.E.2d at 1133 (finding conduct

and words "negligently made" gave rise to negligent misrepresentation

claim). For a negligent misrepresentation claim, courts ask simply

whether the speaker was negligent in failing to discover the falsity of

his or her statements. See id.; Prosser and Keeton on Torts, § 107 at

745 (representation may be negligent where there is a "lack of

reasonable care in ascertaining the facts, or in the manner of

expression, or absence of skill and competence required by a particular

business or profession").

Even under a negligence standard, however, Cummings has

failed to provide any evidence that HPG could have known that the

representations were false when made. The future performance of the

roofs cannot alter what HPG knew at the time the statements were made.

Accordingly, Cummings' negligent misrepresentation claim, like its

deceit claim, must fail. See Lawton v. Dracousis, 437 N.E.2d 543, 547

(Mass. App. Ct. 1982) (rejecting negligent misrepresentation claim

where no evidence speaker had knowledge of undisclosed facts).

B. Chapter 93A, § 11 Claims

Cummings also argues that the district court's summary

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judgment was improper on its claims under Mass. Gen. Laws ch. 93A, §§

2, 11, because HPG's misrepresentations and failure to warn it of the

shatter defect constitute actionable "unfair or deceptive acts or

practices." Chapter 93A is broad in scope and does not catalogue the

type of conduct falling within its prohibition; instead, it references

the interpretations of unfair acts and practices contained in section

5 of the Federal Trade Commission Act, 15 U.S.C. § 45(a)(1). See Mass.

Gen. Laws ch. 93A, § 2(a). Conduct is unfair or deceptive if it is

"within at least the penumbra of some common-law, statutory, or other

established concept of unfairness" or "immoral, unethical, oppressive,

or unscrupulous." PMP Assoc., Inc. v. Globe Newspaper Co., 321 N.E.2d

915, 917 (Mass. 1975), quoted in Cambridge Plating Co., Inc. v. Napco,

Inc., 85 F.3d 752, 769 (1st Cir. 1996). The context in which the

unfair act took place is of great import. Kattar v. Demoulas, 739

N.E.2d 246, 257 (Mass. 2000).

1. Unfair Misrepresentations

Cummings argues that its failure to sustain deceit and

negligent misrepresentation claims should not prevent it from

establishing a Chapter 93A violation based on misrepresentation. While

it is true that an action under Chapter 93A need not articulate every

element of a common law tort claim in order to survive, see

Massachusetts Farm Bureau Fed'n, Inc. v. Blue Cross, Inc., 532 N.E.2d

660, 664 (Mass. 1989), a defendant's allegedly unfair conduct "must at

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least come within shouting distance of some established concept of

unfairness," Massachusetts School of Law, 142 F.3d at 42. Here,

Cummings' Chapter 93A claim is not even within earshot of a

misrepresentation claim. There can be no claim of unfairness based on

a misrepresentation where, as we previously found, Cummings has failed

to show HPG made any deceitful or even negligently false statements.

2. Duty to Warn

Cummings' allegation of unfairness based on HPG's failure to

warn is less easily dispatched.3 It is uncontested that during at

least some of Cummings' warranty periods, HPG knew that there was a

substantial occurrence of shattering in its unreinforced PVC roofs. By

some time in 1990, HPG had sufficient notice that the roofs were prone

to catastrophic failure. At that time, three of the roofs were still

under warranty and one was not. Yet HPG said nothing. The question is

whether Cummings has created a jury question as to whether HPG's

silence rises to the level required to show unfair or unscrupulous

behavior actionable under Chapter 93A.

Like the district court, we reject Cummings' argument that

HPG was under a continuing post-sale duty to warn based on Vassallo v.

3 Although failure to warn sounds in tort, Massachusetts courts
have generally held that the economic loss doctrine does not bar
recovery in actions brought under Chapter 93A. See Anastasi Bros.
Corp. v. Massachusetts Convention Ctr. Auth., 1993 WL 818553, at *3
(Mass. Super. Nov. 1, 1993); cf. Logan Equip., 736 F. Supp. at 1203
(allowing Chapter 93A claim based on misrepresentations despite finding
economic loss doctrine barred negligence claim).

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Baxter Healthcare Corp., 696 N.E.2d 909 (Mass. 1998). That case

involved claims under the more forgiving consumer standard contained in

section 9 of Chapter 93A, where the defective product resulted in

personal injury. Id. at 924. As the district court noted, to extend

the rule in Vassallo to claims between commercial parties under section

11 would be an unwarranted expansion of liability under Chapter 93A.

We analyze this failure to warn claim under section 11 of

Chapter 93A first by seeing if Massachusetts case law dealing with

failure to warn liability would apply here, thus, by analogy,

indicating the existence of a 93A claim. Cf. Cambridge Plating, 85

F.3d at 769 (referring to common law torts to determine whether conduct

gives rise to Chapter 93A liability). A post-sale duty to warn of a

defective product only arises under Massachusetts law if the product

was negligently designed as originally sold. See Williams v. Monarch

Machine Tool Co., 26 F.3d 228, 232 (1st Cir. 1994); see also Cigna Ins.

Co. v. Oy Saunatec, Ltd., 2001 WL 118896, *8 (1st Cir. Feb. 15, 2001).

In Cigna, applying Massachusetts law, we upheld a damages award for

failure to warn where plaintiff showed that the defective product

failed to conform to industry safety standards at the time it was sold

and later required modification. See id. at *9. Here, Cummings has

offered no direct evidence that HPG's roofs were negligently designed.

We are reluctant to reason backwards to that conclusion from the mere

fact of failure. In addition, there are Massachusetts cases saying

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that the purchaser of a manufactured product who claims as damages only

economic loss or damages caused by the product itself cannot maintain

a claim for negligent design (where a warranty action is available).

E.g., Marcil v. John Deere Indus. Equip., 403 N.E.2d 430, 434-35 (Mass.

App. Ct. 1980).

That analysis does not necessarily dispose of the unfairness

question under Chapter 93A. Indeed, there is an argument, which is not

frivolous, that HPG should have notified Cummings about the risk of the

roofs shattering, and that its failure to do so was unethical and

reaches the level of "unscrupulousness" required in an action under

section 11 of Chapter 93A. The sudden collapse of a roof in a

commercial building could easily lead to damage to the building's

tenants, and there are arguably good public policy reasons to support

a duty to warn.

Even assuming arguendo the existence of such a duty, however,

Cummings has not shown that HPG's failure to warn it about the roof

defect caused it any actual damage. It is not enough for Cummings to

say that had it known of the defect it would not have purchased the

roofs; that argument belongs with the misrepresentation claims. To

prove that HPG's failure to warn was actionable unfair conduct,

Cummings must produce some evidence of injury that directly resulted

from HPG's silence. There is no evidence of a missed opportunity to

reinforce the roofs less expensively than replacing them, or some

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damages, other than to the roof itself, that could have been avoided.

See McCann v. Davis, Malm & D'Agostine, 669 N.E.2d 1077, 1079 (Mass.

1996) (upholding dismissal of Chapter 93A claim where plaintiff failed

to show that defendant's negligence caused its damages and failed to

identify unfair conduct); Weeks v. Harbor Nat'l Bank, 445 N.E.2d 605,

607 n.2 (1983) ("[D]amages are an essential element of the cause of

action" under Mass. Gen. Laws ch. 93A, § 11.). Indeed, Cummings does

not even argue for such damages. Rather, it seeks the replacement cost

for the roofs. But the roofs were warranted for only ten years and

lasted that long, and longer, without failing. There was, to be sure,

a risk that they would fail within that period, but they did not. And

Cummings did have notice before the last one failed. We see no damages

from the failure to warn. Summary judgment on the Chapter 93A claims

was appropriate.

Finally, we note that Cummings is not entitled to attorneys'

fees for its claims that HPG violated section 11 of Chapter 93A.

Attorneys' fees are available under section 11 if a plaintiff sustained

a loss of "money or property" due to a defendant's unfair practice.

Mass. Gen. Laws ch. 93A, § 11; see also Jet Line Servs., Inc. v.

American Employers Ins. Co., 537 N.E.2d 107, 114 (Mass. 1989). Here,

Cummings has not shown any such loss due to HPG's failure to warn, and

as the Massachusetts Supreme Judicial Court has held, where a plaintiff

fails to prove any damages, "relief solely in the form of attorneys'

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fees may not be had." Jet Line, 527 N.E.2d at 115.

C. St. Thomas Realty's Claim

We need not review that part of the district court's decision

relating to the roof of plaintiff St. Thomas Realty, as that claim is

premised on Cummings' failed misrepresentation and Chapter 93A claims.

III.

For these reasons, the judgment of the district court is

affirmed. Costs are awarded to defendant.

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