Jaime Gonzalez, Patricia Wright, Kevin v. Corning

• Decision Date: 31 March 2016
• Docket Number: Civil Action No. 14-cv-0826,Civil Action No. 13-cv-1378
• Parties: JAIME GONZALEZ, PATRICIA WRIGHT, KEVIN WEST, and GERALD BOEHM, On behalf of themselves and all others similarly similarly situated, Plaintiffs, v. OWENS CORNING and OWENS CORNING SALES, LLC, Defendants. EDWARD MAAG and DIANE MAAG, on behalf of themselves and all others similarly situated, Plaintiffs, v. OWENS CORNING and OWENS CORNING SALES, LLC, Defendants.
• Court: U.S. District Court — Western District of Pennsylvania

JAIME GONZALEZ, PATRICIA WRIGHT, KEVIN WEST, and GERALD BOEHM, On behalf of themselves and all others similarly similarly situated, Plaintiffs, v. OWENS CORNING and OWENS CORNING SALES, LLC, Defendants.

EDWARD MAAG and DIANE MAAG, on behalf of themselves and all others similarly situated, Plaintiffs, v. OWENS CORNING and OWENS CORNING SALES, LLC, Defendants.

Civil Action No. 13-cv-1378

Civil Action No. 14-cv-0826

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

March 31, 2016

OPINION

CONTI, Chief District Judge

These putative class actions were filed against Owens Corning and Owens Corning Sales, LLC (collectively, "Owens Corning" or "defendants") and arise out of Owens Corning's manufacture and sale of allegedly defective Oakridge-brand fiberglass asphalt roofing shingles. One case was filed against Owens Corning in this court, and three separate cases were filed in federal district courts in other states. Those other federal district courts transferred the three cases to this court. After being transferred two of those cases were consolidated for all purposes with the case filed here at civil action 13-1378.¹ (ECF No. 45.) The last case transferred to this court (Civ. No. 14-0826) was consolidated at civil action 13-1378 only for pretrial purposes. (14-cv-826, ECF No. 14.) The named plaintiffs in the four cases are Patricia Wright ("Wright"), Kevin West ("West"), Jaime Gonzalez ("Gonzalez"), Gerald Boehm ("Boehm"), and Edward and Diane Maag (the "Maags") (collectively, "plaintiffs" or the "named plaintiffs").

The procedural history, facts, and legal claims pertinent to each of the cases will be discussed in detail in the findings of fact that follow. By way of summary, plaintiffs contend that Owens Corning acted unlawfully by manufacturing Oakridge-brand shingles in accordance with defective design specifications, and by promising that all Oakridge-brand shingles would last for at least 25 years, when, due to those defective design specifications all Oakridge-brand shingles were "vulnerable" or "susceptible" to lasting no more than 20 years.

Plaintiffs filed a motion for class certification, seeking to certify classes pursuant to Federal Rules of Civil Procedure 23(b)(1)(B), (b)(2), and (b)(3). (ECF No. 150.) Plaintiffs' motion was fully briefed by the parties, and the court conducted a hearing on the motion on December 17, 2015. (ECF Nos. 151-54, 161-62, 164-66, 169-70, 12/17/2015 Minute Entry.) Thereafter, the parties filed proposed findings of fact and conclusions of law. (ECF Nos. 176-77.) Several weeks later, plaintiffs volunteered a notice of supplemental authority in further support of their motion for class certification. (ECF No. 179.) Owens Corning filed a short response thereto, and stated its willingness to more fully respond at the court's request. (ECF No. 180.) The court did not request further briefing.

The court concludes that the proposed Rule 23(b)(1)(B) class cannot be certified because the named plaintiffs ask this court to answer a question that the Court of Appeals for the Third Circuit already answered. Owens Corning cannot, and has stated that it will not, relitigate the issue. In addition, the appellate court answered the question in a way that makes it impossible for this court to enter any classwide rulings with respect to the effect that Owens Corning's bankruptcy proceedings have on proposed class members' claims.

The court also concludes that the proposed Rule 23(b)(2) and Rule 23(b)(3) classes cannot be certified because, among other reasons, the named plaintiffs seek to pursue relief under various state-law theories that are not the same for all members of a proposed class, it is impossible to determine whether an owner is a member of the class, and the record contradicts any finding that either all (or even most or many) Oakridge-brand shingles suffer from an common defect or Owens Corning represented that its Oakridge-brand shingles would not crack, degranulate, fragment, or deteriorate for, or would have a useful life of, at least 25 years. Plaintiffs proffer no evidence about how often Owens Corning manufactured shingles "at or near" the allegedly defective "low-end" of its specifications. FOF 181. The only statistical evidence in the record reflects that only one half of one percent of Oakridge-brand shingle installations result in a warranty claim, and only half of the approximately 300 warranty claim shingles tested by plaintiffs measured "at or near" the allegedly defective "low end" of Owens Corning's design specifications. The record reflects that plaintiffs acknowledge that not all Oakridge-brand shingles will be manufactured "at or near" the allegedly defective "low end" of Owens Corning's design specifications, and plaintiffs never identify how near the "low end" of Owens Corning's design specifications a measurement must be to qualify as design defect. With respect to plaintiffs' claims that Owens Corning made misstatements about its Oakridge-brandshingles, plaintiffs fail to establish that Owens Corning made uniform representations about the expected useful life of Oakridge-brand shingles, or about whether the shingles would experience any form of deterioration for a set number of years.

Under those circumstances and as more fully explained in the findings of fact and conclusions of law, the court will deny plaintiffs' motion for class certification.

FINDINGS OF FACT²

A. The Proposed Classes

1. The Originally-Proposed Classes

FOF 1: In their initial briefing on the motion for class certification, plaintiffs moved to certify the following classes:

Rule 23(b)(1)(B) Impaired Judgments Class: All individuals and entities that own a building or structure physically located in the United States on which Owens Corning's Oakridge-brand shingles are or have been installed, where those shingles were purchased on or before September 26, 2006.

Rule 23(b)(2) Injunctive Relief Class and Rule 23(b)(3) Monetary Relief Class: All individuals and entities that own a building or structure physically located in the states of California, Illinois, Pennsylvania, or Texas on which Owens Corning's Oakridge-brand shingles are or have been installed from 1992 through 2012.

(ECF No. 154 at 23.)

FOF 2: With respect to the originally-proposed Rule 23(b)(1)(B) class, plaintiffs explained in their initial briefing in support of the motion for class certification that "class members nationwide are vulnerable to Owens Corning asserting a dischargeability defense against them" even though the Court of Appeals for the Third Circuit ruled in favor of Wright and West on this bankruptcy-based defense during the pendency of the instant case. (ECF No. 154 at 34); Wright v. Owens Corning, 679 F.3d 101 (3d Cir. 2012).

a. In October 2000, Owens Corning voluntarily filed for bankruptcy relief under Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for District of Delaware. Wright, 679 F.3d at 103; Wright v. Owens Corning, 450 B.R. 541, 545 (W.D. Pa. 2011).

b. Owens Corning's final reorganization plan was confirmed on September 26, 2006. Wright, 679 F.3d at 103; Wright, 450 B.R. at 545.

c. In Wright, the court of appeals refused to retroactively apply a newly-announced bright-line legal test for determining whether a claim is discharged by a bankruptcy court's entry of a confirmation order. Wright, 679 F.3d at 107-09. The court of appeals instead engaged in a fact-specific inquiry, as required under the previously-applicable legal test, and concluded that Wright's and West's claims were not discharged by Owens Corning's bankruptcy proceedings. Id.; see FOF 229-31.

FOF 3: The originally-proposed Rule 23(b)(2) and Rule 23(b)(3) classes shared the same class definition. Membership in the proposed Rule 23(b)(2) class, therefore, was coterminous with membership in the proposed Rule 23(b)(3) class. Owners were notrequired to demonstrate any kind of shingle deterioration, property damage, or actual repair or replacement costs in order to obtain relief.

a. At the hearing on plaintiffs' class certification motion, in response to questions from the court about the seeming redundancy of the proposed Rule 23(b)(2) and Rule 23(b)(3) classes, plaintiffs clarified that the proposed Rule 23(b)(2) injunctive relief class was intended to be an alternative in the event that the court declined to certify the proposed Rule 23(b)(3) monetary relief class. (ECF No. 173 at 37-38.)

b. Plaintiffs explained at the hearing on their class certification motion that if the court refused to certify the Rule 23(b)(3) monetary relief class, then members of the proposed Rule 23(b)(2) class would obtain a declaration that the shingles are defective or that Owens Corning did not provide what was promised. (ECF No. 173 at 38-39.)

FOF 4: Plaintiffs sought to litigate four categories of legal claims on behalf of the classes proposed under Rules 23(b)(2) and 23(b)(3): (1) breach of express warranty (PA owners only); (2) breach of implied warranty of merchantability (PA, CA, and TX owners); (3) violation of state-specific consumer protection statutes (CA, TX, and IL owners); and (4) unjust enrichment (PA, CA, TX, and IL owners). (ECF No. 154 at 40-45.)

a. The unjust enrichment claim was the only cause of action on which plaintiffs sought class certification under the laws of all four states in which the named-plaintiffs' structures are located. The three remaining causes of action were being pursued on behalf of varying combinations of owners located in the states of Pennsylvania, Illinois, California, and Texas. (Id. at 45.)b. The named plaintiffs' operative complaints assert numerous legal claims for which class certification was not being sought.

i. For example, although Gonzalez, Boehm, and the Maags plead breach of express warranty claims under Texas, California, and Illinois law, respectively, plaintiffs sought to pursue only the breach of express warranty claim asserted by Wright under Pennsylvania law on behalf

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