Barrett v. U.S. Brass Corp.
| Decision Date | 19 August 1993 |
| Docket Number | No. 01-91-01279-CV,01-91-01279-CV |
| Parties | John BARRETT, Sabrina Barrett, Lars Bengston, Cynthia Bengston, Gilbert Bennett, Karen Bennett, Pauline Borski, Joe Cantu, Rosemarie Cantu, Louie Casias, Sr., Patti Casias, John Christensen, Kristy Christensen, Gudrun Colon-Pomales, Kenny Dingle, Kathy Dingle, Kurt Ditges, Elke Ditges, Adam Farris, Annie Farris, James Fish, Joan Fish, Charles Jackson, Cynthia Jackson, William Jacobs, Anita Jacobs, John Langman, David Love, Tammie Love, Dan Patterson, John Pop, Melena Pop, Peter Reaux, Jeannette Reaux, Charlie Riley, Deanne Riley, Jeffrey Schultz, Timothy Sisk, Allison Sisk, Kevin Stanfill, Carmen Stanfill, M.C. Terdin, Cynthia Sykora, Steve Thumann, Adelcida Thumann, Jeffrey Turner, Tenisa Turner, Richard Yeates, and Sonja Yeates, Appellants and Cross-Appellees, v. UNITED STATES BRASS CORPORATION, Appellee and Cross-Appellant. (1st Dist.) |
| Court | Texas Court of Appeals |
Mike O'Brien, P.C., Mike O'Brien, Fleming, Hovenkamp & Grayson, George M. Fleming, Mark A. Hovenkamp, James R. Moriarty, P.C., James R. Moriarty, Houston, for appellants.
Nelson & Zeidman, Kurt T. Nelson, Mark R. Zeidman, Loreta H. Rea, Houston, for appellee.
Before SAM BASS, * DUNN and PRICE, ** JJ.
The appellants appeal from a final judgment denying them recovery under the Deceptive Trade Practices Act (DTPA) 1 and granting the appellee, United States Brass Corporation (U.S. Brass), judgment notwithstanding the verdict on their DTPA cause of action. U.S. Brass brings cross-points challenging the appellants' recovery on their negligence cause of action and any potential recovery on their DTPA cause of action.
We are asked to decide three issues: (1) Should the 23 appellants who recovered under negligence be allowed to recover under their DTPA cause of action? (2) Should the four appellants who received a take-nothing judgment be allowed to recover under their DTPA cause of action? (3) Should one or more of the 23 appellants be denied recovery under their negligence cause of action?
The judgment of the trial court is affirmed in part and reversed in part. The detailed disposition is set forth in the conclusions at the end of this opinion.
On December 19, 1988, these 27 appellants were among several hundred plaintiff homeowners who sued nine defendant companies, including U.S. Brass, alleging that they had misrepresented the polybutylene plumbing systems installed in the plaintiffs' homes to code bodies, homebuilders, and city officials. The plaintiffs brought causes of action based on violations of the DTPA, negligence, and strict liability. They sought damages, claiming the plumbing system leaked, necessitating its repair and replacement and causing personal injuries, including mental anguish, property damage, and diminution in the value of their homes.
The trial court divided the plaintiffs into two groups. These 27 appellants were in a group of 36 homeowners 2 who went to trial as a test group. All defendants, except U.S. Brass, settled with this group, either before trial, or after the verdict but before judgment was entered. U.S. Brass moved for, and received, a directed verdict with respect to nine plaintiffs. 3 With four exceptions, 4 the jury found in favor of these 27 appellants on their negligence and DTPA causes of action. Two 5 of these who did not receive favorable findings, moved for judgment notwithstanding the verdict, which was denied, while U.S. Brass' motion for judgment on the verdict with respect to all four was granted.
Twenty-three plaintiffs of the 36 moved for judgment in accordance with the verdict and elected to recover under the DTPA. The trial court denied these motions, granted U.S. Brass' motion for judgment notwithstanding the verdict and to disregard the jury's answers to questions one through six on the plaintiffs' DTPA cause of action, and entered judgment for the 23 plaintiffs based on the jury verdict on their negligence cause of action. The trial court also entered a take-nothing judgment against 13 of the plaintiffs: the four who did not receive favorable jury findings and the nine against whom a verdict was directed. The 23 plaintiffs recovering under negligence and these four appeal the judgment against them on their DTPA cause of action.
A polybutylene plumbing system consists of molded plastic (Celcon) insert fittings, polybutylene pipe extruded from polybutylene resin, and aluminum or copper crimp rings. Plumbers install the plumbing system by placing the crimp ring over the end of the pipe, pushing the fitting inside the pipe, and then using a crimp tool to crimp the ring around the outside of the pipe and fitting. The pressure from the crimp ring deforms the pipe and the fitting to make a water-tight seal with the fitting. The defendant companies either made the polybutylene or plastic, molded the fittings from the plastic, or extruded the pipe. In particular, U.S. Brass 6 designed and molded the fittings from the material, Celcon, provided by Hoechst Celanese Corporation (Celanese), extruded pipe from the polybutylene resin provided by Shell Oil Company (Shell), designed the plumbing system, designed the crimping tool, and issued instructions for assembling the system and using the crimp tool. U.S. Brass sold the fittings and pipe to wholesalers, that is, plumbing supply houses. The wholesalers sold to other wholesalers, plumbers, or whoever else had use for it. Homebuilders contracted with plumbing subcontractors to furnish and install plumbing systems in the homes.
The homes of the 27 appellants were built between 1978 and 1985 by homebuilders, Monarch, Fox & Jacobs, Wood Brothers, Weekley, Great American, NPC, Genex, or Champion, in various subdivisions, and bought by the appellants between 1982 and 1988. 7 Some of the appellants purchased their homes "new" from the builder; others purchased them from a previous owner or as a foreclosure. The homes all had polybutylene plumbing systems. One hundred percent of the fittings in four of the homes were made by U.S. Brass (Qest). Two of the homes had no U.S. Brass fittings. In the remaining homes, anywhere from nine percent to 95 percent of the fittings were made by U.S. Brass (Qest). 8 Almost all of the homes experienced one or more leaks in the plumbing system.
What physically caused the leaks? The evidence at trial was conflicting.
Watson was a former U.S. Brass employee who had managed the operations of the U.S. Brass plant in Elkhart, Indiana, and worked on failure analysis of Qest fittings during 1982. He retired from the company at the end of 1982. He testified by deposition that, in his opinion, the leaks in the system were caused by misapplication or abuse, that is by installation error. He defined misapplication as the use of tools that had been gauged incorrectly or not gauged, tools applied to the ring and the fitting at an angle or double crimped, doing things that were not specified or were actually warned against in the literature, or failing to follow instructions or common sense. He also saw evidence of chemical attack, which Celanese confirmed in some instances. The most common attack came from solder flux, used to ease assembly of the components, and cleaning compounds. He also testified that "excessive forces" needed to be guarded against, but stated that the design parameters of the plumbing system were such that the material was not overstressed. He admitted that some of the returned goods showed a production problem or manufacturing error, but stated the instances were minor and constituted a tiny fraction of total production. Watson had not examined any of the fittings in this litigation.
Chudnovsky, the plaintiffs' expert witness, testified that the failures were caused by a combination of chemical degradation and stress. He said the chemical degradation led to the formation of micro-cracks, that the chemical degradation was accelerated by stress, and that the stresses were the immediate cause of crack propagation. He based his opinion on an examination of a sampling of the fittings in the case, as well as a review of documentation. He said he had not done any testing to determine if the mechanical forces alone involved in producing the fitting and in installing the fitting would produce a premature failure. But he also stated the system as designed, was designed to fail, even if properly installed. He also stated that in the fittings he had examined, one leak had occurred where the pipe and fitting had pulled away from each other because the crimp ring wasn't compressed hard enough; others had happened because of nonplastic plumbing failures; and in a very few examples, a residual splitting had appeared in the pipe itself. Chudnovsky also stated that, in his opinion, Celcon was an unsuitable material because it basically fails and is not reliable. He said it was false that Celcon had a 50-year life, was durable, and would not corrode.
Stivala, another expert witness for the plaintiffs, visually examined the fittings and tested them to determine if the molecular weight on the inside was different from that on the outside, indicating that degradation as a result of chemical reaction had occurred in the interior. He testified that Celcon was not suitable as an insert fitting in a polybutylene plumbing system in the particular community because it is inherently susceptible to oxidation, and so long as the water contained any medium that could oxidize the surface, it would do so. He stated a Celcon fitting would not last 25 years in any community that adds chlorine to its water and that it would corrode and fail. However, he admitted on cross-examination that the degradation had not gone beyond the surface layer and that he had not done testing to determine if there was any connection between the...
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