BY ROBERT P. MADER
Of CONTRACTOR’s staff
DENVER — A state court jury has awarded a group of Colorado homeowners more than $23 million in a class-action suit against Goodyear Tire & Rubber Co., agreeing with plaintiffs that Entran II hydronic heating hose produced by Goodyear is defective.
The case is Vista Development v. Goodyear, which was filed in 1998. Six of the homeowners of the luxury Beaver Creek, Colo., development settled with Vista, which fixed their heating systems. Vista then took assignment of their claims, explained attorney Mike Plachy of Rothberger, Johnson & Lyons in Denver, and sued Goodyear.
The plaintiffs alleged six claims that boiled down to the hose being defective and that Goodyear misrepresented the quality of the hose, Plachy said; the jury found in the plaintiffs’ favor on all six claims. Plachy noted that the trial lasted 5 1/2 weeks and the jury took just 2 1/2 hours to reach its decision. In addition, Plachy said, the jury assigned 100% of the blame on Goodyear on a jury form that asks for assignment of liability.
The jury awarded the plaintiffs $5.8 million in actual damages and $5.8 million in punitive damages, Plachy said. In addition, the plaintiffs convinced the jury that Goodyear violated the Colorado Consumer Protection Act, allowing actual damages to be trebled and the plaintiffs reimbursed for their attorneys’ fees and costs.
Expert witnesses for the plaintiffs included CONTRACTOR hydronic heating columnist Mark Eatherton and polymer chemist Mike Roland, currently section head at the Naval Research Laboratory, Washington. Neither could speak to CONTRACTOR because they will be called as expert witnesses in upcoming Entran II suits.
“Goodyear is disappointed with the Colorado jury decision,” the company said in a prepared statement. “The company is confident that on appeal the court will recognize that the Entran II hose, when used in systems that have been properly designed, installed and maintained, will provide many years of service. After a three-week trial in February 2000, a federal court jury unanimously ruled that Entran II hose was fit for sale and use and did not find Goodyear responsible for the failure of Heatway’s radiant heating systems. More than 95% of the Entran II hose installed in homes, much of it in use for 10 years or more, is functioning with no problems.”
Goodyear had manufactured the hose for now-bankrupt Heatway Systems (April 2000, pg. 3). Heatway lost its federal court case against Goodyear, filed for bankruptcy and was purchased out of bankruptcy by Watts Industries. Watts is now running the operation as Watts Radiant. As part of the bankruptcy settlement, Heatway put aside $2.9 million in a fund to compensate homeowners with defective systems and it does not have any other liability for Entran II tubing.
The Beaver Creek case is just one of a number of Entran II class-action suits against Goodyear.
A second Beaver Creek case, Sumerel et al v. Goodyear, is scheduled to begin opening arguments April 15, said Denver attorney Bill Maywort of Holland & Hart.
The facts of Sumerel are similar to those of Vista Development, Maywort said. The case involves one single-family homeowner, four owners of town homes and a homeowners’ association in the Pinehurst development in Beaver Creek. Although four of the units are “town homes,” they’re actually 5,000-sq.-ft., multimillion-dollar homes.
“All of the units, as well as the homeowners’ association (building), have Entran II installed in them,” Maywort said. “The association has Entran for snow melt for the common area. All of the systems have had various problems. Three have now been changed out with other types of hydronic heating systems. The snow-melt system plus two other units have not yet been changed out.”
The homeowners are claiming total damages of around $6 million that include remediation costs, diminution of value and stigma damages.
Two federal class-action cases involving about 40 plaintiffs are also pending in Denver, Maywort said. The case of Hagar et al v. Goodyear is scheduled for trial in February 2003 and Loughridge et al v. Goodyear is slated for April 2003.
A New Mexico state court has certified a class defined as homeowners or persons owning real property in New Mexico as of March 1 that uses a heating system incorporating Entran II hose manufactured by Goodyear, said attorney Brad Berge of Holland & Hart, Campbell & Carr in Santa Fe, N.M. Berge said statistics received from Goodyear and Heatway indicate as much as 3.7 million linear ft. of Entran II hose is installed in New Mexico.
“The court has yet to set a schedule, but the next step is to identify and notify members of the class,” Berge said. His firm hopes to begin notifying members of the class within 90 days. Berge said he anticipates the trial starting late this year or early 2003.
In Boston, the law firm of Todd & Weld has asked the U.S. District for the District of Massachusetts to certify a class of homeowners living in Maine, Vermont, New Hampshire, Massachusetts, Connecticut and Rhode Island, said attorney Kevin Peters. He estimated that there are 5 million linear ft. of Entran II in New England and 2,400 members of the class.
“We have filed our motion to get the class certified,” Peters said. Goodyear’s response was due April 1, and reply briefs from both sides are due April 15. The court may decide on the class certification in May.
Meanwhile, eight plaintiff homeowners have been deposed as of mid-March, with one deposition remaining, and experts from both sides were conducting home inspections.