Malek v. Goodyear Tire & Rubber Co. , 160 F. App'x 702 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 20, 2005
TENTH CIRCUIT
Clerk of Court
FREDERIC V. MALEK; MARLENE
A. MALEK; MORRIS BART;
CHARLES PATTERSON; FONDA
PATTERSON; STEVEN SPIRITAS, No. 04-1455
on behalf of the AK41 Trust; (D.C. No. 02-B-1772 (MJW))
RANDALL LEE JOHNSON; NANCY (D. Colo.)
M. RIEMER; WARREN
LICHTENSTEIN; ROBERT J. FREY;
JULIE BETH NASTER; BEAVER
CREEK LODGE CONDO OWNERS
ASSOCIATION; JEFFREY MILLER;
PAULA MILLER; GARY LESNICK;
WOODROW CHAMBERLAIN;
BARBARA CHAMBERLAIN;
MICHAEL AMISS; BERRYDALE
CORPORATION; ROLLAND
MCGINNISS; CAROLYN
MCGINNISS; DR. RICHARD
MARKS; MARLENE MARKS;
STEVE GRANTHAM; DONNA
GRANTHAM; AKE LJUNGBERG; C.
JAMES PADGETT; ANTHONY
MOORES; LISBETH MOORES;
PAMELA WATSON JOHNSON;
DIANE LICHTENSTEIN; HELEN E.
STONE; SHARON BURROW;
GRADY BURROW; SUSAN J.
MCFARLANE; LAWRENCE MARX,
as Trustee on behalf of the Lawrence
Marx III Qualified Personal Residence
Trust No. 1 and Trust No. 2 and the
Susan Marx Qualified Personal
Residence Trust No. 1 and Trust No.
2; SUSAN MARX, as Trustee on
behalf of the Lawrence Marx III
Qualified Personal Residence Trust
No. 1 and No. 2 and The Susan Marx
Qualified Personal Residence Trust
No. 1 and Trust No. 2; ROBERT S.
WEST; WARNER BROS.
DISTRIBUTING INC.; JOHAN
LJUNGBERG; JENNY LJUNGBERG,
Plaintiffs-Appellees,
v.
GOODYEAR TIRE AND RUBBER
COMPANY, an Ohio corporation,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, MURPHY, Circuit Judges and ARMIJO **, District Judge.
This appeal arises from a diversity action brought under Colorado state law
by the owners of 26 Colorado homes (“Homeowners”) against Defendant-
Appellant Goodyear Tire and Rubber Company (“Goodyear”). After a jury trial,
some, but not all, Homeowners were awarded damages against Goodyear. The
district court awarded prejudgment interest on those damages. Goodyear appeals
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1 (G). The cause therefore
is ordered submitted without oral argument.
**
The Honorable M. Christina Armijo, District Judge, United States District
Court for the District of New Mexico, sitting by designation.
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the district court’s determination of prejudgment interest. Because Goodyear’s
contentions are controlled by the ruling in Loughridge v. Goodyear Tire & Rubber
Co., Nos. 04-1261, 1263, slip op. at 40-48 (10th Cir. 2005), we affirm the district
court’s amended judgment.
This case is one in a series of litigation in which plaintiffs have alleged that
Goodyear manufactured a defective hose, “Entran II,” that was used in the
hydronic heating systems installed in their homes. These systems use Entran II to
circulate warm fluid under indoor flooring as an alternative to conventional
heating systems, or under driveways and sidewalks to melt snow and ice.
Homeowners began noticing problems with their hydronic heating systems,
including cracking, leaking and sediment build-up in their Entran II hose, as early
as 1991. In many cases, these problems required the removal and replacement of
the hose in its entirety, as well as the replacement of most other parts of the
hydronic heating system.
Homeowners brought claims against Goodyear under Colorado law seeking
recovery for sale of a defective product and negligence, including negligent
design and negligent failure to warn. After the district court granted, in part, the
Homeowners’ motion for summary judgment based on collateral estoppel, only
two issues were tried to the jury: causation and damages. Homeowners claimed
that Goodyear was liable for the costs of removing and replacing the Entran II
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hose installed in their homes, the diminution in value of their homes, and other
costs and losses. The jury returned special verdicts in favor of the Homeowners
of 20 homes for sale of a defective product and negligence, awarding them
removal and replacement costs as well as other costs and losses.
After trial, the prevailing Homeowners moved for prejudgment interest
under Colo. Rev. Stat. § 5-12-102(1)(b) (2004) arguing that prejudgment interest
should accrue on their damages from the date Entran II was installed in their
respective homes. The district court granted Homeowners’ motion in part and
denied it in part. The court held that (1) Homeowners who owned their homes at
the time Entran II was installed are entitled to prejudgment interest from the date
of installation; and (2) Homeowners who purchased their homes after Entran II
had been installed are entitled to prejudgment interest from the date they
purchased their homes. Accordingly, the district court entered an amended
judgment awarding the prevailing Homeowners prejudgment interest in the
aggregate of approximately $4.9 million.
Goodyear appeals from the district court’s amended judgement arguing that
the district court should have set the accrual date for prejudgment interest on one
of two alternate dates: (1) when the Homeowners paid for their repair or
replacement costs; or (2) when the Homeowners’ claims accrued for the purposes
of the statute of limitations.
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In Loughridge v. Goodyear Tire & Rubber Co., Nos. 04-1261, 1263, slip
op. at 40-48 (10th Cir. 2005), this court gave thorough consideration to virtually
identical arguments as to the accrual date for prejudgment interest, but ultimately
rejected them. Based on such authority, the district court’s amended judgment is
AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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