The U.S. Court of Appeals for the Third Circuit and New Jersey’s Supreme Court issued a series of decisions in 2020 that undercut the preemptive effect of New Jersey’s Products Liability Act (PLA) with respect to implied warranties. On its face, the PLA suggests that only claims pursuant to the act and claims for breach of express warranties can be brought. As a result of the Sun Chemical v. Fike decisions, a carveout now exists for implied warranty claims that are based on a defendant’s alleged express or affirmative misrepresentations, i.e. misrepresentations that a product would have a certain feature, rather than as to the defective nature of the product itself. See Sun Chemical v. Fike, 981 F.3d 231, 235 (3d Cir. 2020); Sun Chemical v. Fike, 243 N.J. 319, 324 (2020). There has been minimal treatment of the issue since 2020, but that limited body of case law provides some guidance regarding this potential avenue of exposure.

Background

New Jersey’s PLA, N.J.S.A. 2A:58C-1 et seq., was enacted in 1987, and has traditionally held exclusive provenance over harms caused by a product regardless of the underlying theory, except for express warranty claims. N.J.S.A. 2A:58C-1(b)(3). Separately, the implied warranty of merchantability requires a good to be fit for the ordinary purposes for which such goods are used. N.J.S.A. 12A:2-314(1); 12A:2-314(2)(c). Similarly, the implied warranty of fitness for a particular purpose is implicated in the event a seller has reason to know at the time of purchase both that the purchaser has a particular purpose for which the goods are being obtained and that the buyer is relying on the seller's skill or judgment to select or furnish goods suitable for that purpose. N.J.S.A. 12A:2-315. Reviewing courts have long held that there is minimal practical distinction between the two implied warranties. See, e.g., Volin v. GE, 189 F. Supp. 3d 411, 419 (D.N.J. 2016) (citing Henningsen v. Bloomfield Motors, 32 N.J. 358, 161 A.2d 69, 76 (1960)). As a general rule, there was little dispute prior to 2020 that breach of implied warranty claims were subsumed by the PLA. See, e.g., Ford Motor Credit v. Mendola, 427 N.J. Super. 226 (App. Div. 2012).