Law360 highlights latest developments of Chinese Drywall case (12-14-10)
On December 14, 2010, online legal journal Law360 published an update on the recent court proceedings and motion involving the developers and contracting firms inolved in the Chinese Drywall case. The journal interviewed David Durkee regarding his viewpoint on where this case will head next, and gave key insight on why this case is significant for more than just those who were directly harmed when the toxic material was discovered in their homes. Please see the article in its entirety below.
Drywall Installers May Face Strict Liability In Fla.
By Jesse Greenspan
Law360, New York (December 14, 2010) — A Florida judge has ruled that strict liability claims can be brought against Chinese drywall installers under certain circumstances, finding that the merit of the claims should be decided individually for each defendant.
Judge Glenn D. Kelley of the 15th Judicial Circuit in Palm Beach County, Fla., said Dec. 8 that he could not dismiss the strict liability claims on an omnibus basis against the defendants. Instead, he would decide on an individual basis whether a particular installer is a mere service provider and therefore subject to strict liability claims.
“The predominate purpose of many of the installer defendants may be the mere rendering of a service,” Judge Kelley wrote. “As to this class, strict liability will not lie. On the other hand, with regard to another group of installers, the predominate purpose may be the distribution or sale of drywall.”
Now, plaintiffs bringing strict liability claims only have to show that a product is defective without proof of negligence, according to C. David Durkee, a partner at Roberts & Durkee PA who is the lead plaintiffs’ liaison counsel in the Palm Beach County cases.
He said Judge Kelley’s decision would not establish direct precedent for other Chinese drywall cases, but that it would have a persuasive effect.
“This is really the first time any court has dealt with the issue of what legal liability a drywall installer has,” Durkee said.
An attorney for the defendants was not available for comment on Tuesday.
From 2004 to 2006, the housing boom and rebuilding efforts after major hurricanes hit the U.S. led to a shortage in construction materials, including drywall. The shortage required Chinese-made drywall to be imported into the country.
The Chinese drywall, however, has a significantly higher average concentration of strontium and more detectable levels of elemental sulfur. As a result, it releases odorous sulfur gases that are corrosive to metals, particularly copper and silver.
Homeowners have complained of the smell; the corrosion and blackening of metal wiring, surfaces and objects; and the breakdown of appliances and electrical devices. Many of these homeowners also complained the drywall had an adverse effect on their health.
Manufacturers of Chinese drywall, including Knauf Plasterboard (Tianjin) Co. Ltd., are facing dozens of federal lawsuits that have been consolidated in Louisiana district court. In those cases, there is no question that strict liability applies, according to Durkee.
Meanwhile, three other groups of defendants — building supply distributors, general contractors and installers — are facing suits in state courts throughout the South.
In Palm Beach County, at least, Judge Kelley has determined that strict liability applies for building supply distributors but not general contractors, and that it may apply on an individual basis for installers.
Durkee said he would request that lead cases be scheduled for trial in May now that all of the big legal issues have been decided on an omnibus basis.
The lead plaintiffs’ liaison counsel is Durkee of Roberts & Durkee PA.
The defendants’ liaison counsel is Todd R. Ehrenreich and Michael A. Sexton of Weinberg Wheeler Hudgins Gunn & Dial LLC.
The case is Bennett v. Centerline Homes Inc. et al., case number 2009-ca-014458, in the Circuit Court for the 15th Judicial Circuit for Palm Beach County, Fla.
–Additional reporting by Richard Vanderford