Products Liability Law Daily  Partial accord reached in putative class action involving certain allegedly defective toilet tanks
Tuesday, May 7, 2019

 Partial accord reached in putative class action involving certain allegedly defective toilet tanks

By Georgia D. Koutouzos, J.D.

Mexican toilet manufacturer agrees to reimburse owners of tanks manufactured in 2011 that allegedly cracked suddenly, resulting in property damage.

A Texas federal court preliminarily approved a settlement agreement between a Mexico-based toilet manufacturer and a putative class of individuals who had asserted products liability and other claims against the company arising from the spontaneous cracking of toilet tanks made by the company in 2011. Among the benefits provided under the settlement are reimbursement of up to $300 per tank inclusive of acquiring a replacement tank, installation of replacement tanks for those within a certain geographic area, and 100-percent reimbursement of out-of-pocket expenditures up to $4,000 for those with appropriate documentation of property damage expenses incurred (Cone v. Vortens, Inc., May 3, 2019, Mazzant, A.).

Individuals who owned certain Vortens™ toilets made by Sanitarios Lamosa (now known as Porcelana Corona) who experienced property damage when the toilets' tanks allegedly cracked suddenly and spontaneously filed a putative class-action lawsuit against the manufacturer, asserting causes of action for strict products liability, breach of implied warranty, negligence, and violations of the Texas Deceptive Trade Practices Act (DTPA). The tank owners sought injunctive relief and monetary damages against the company, including exemplary damages, treble damages under the DTPA, and attorney fees.

Class scope. The putative class originally consisted of owners of five model numbers of Vortens toilets manufactured between 2004 and 2012. After a mediation conference in August 2018, the parties reached a partial settlement with respect to past and current owners of Vortens tank model #3412 and #3464 manufactured between January 1, 2011, through December 31, 2011, who previously had expended funds to repair and replace their allegedly faulty tanks. However, no agreement was reached regarding tank owners that experienced property damage due to a cracked 2011 tank, tanks manufactured in years other than 2011, or any other tank models.

After a subsequent mediation conference in October 2018, the parties further resolved claims brought by owners of tank models #3412 and/or #3464 manufactured between January 1, 2011-December 31, 2011, providing relief to class members that incurred property damage other than to the product itself. The parties were unable to reach agreement regarding the remaining claims and a second motion for class certification currently is pending before the court.

Thereafter, the parties sought preliminary approval of a proposed partial class action settlement comprised of owners of tank models #3412 and/or #3464, manufactured between January 1, 2011, and December 31, 2011. The court entered an order severing the claims in the 2011 Settlement from the remaining claims that are pending conditional certification.

Settlement class. The court granted preliminary approval of the stipulated settlement involving Vortens tank models #3412 and/or #3464, manufactured between January 1, 2011, and December 31, 2011. The settlement agreement further refines the class members into two categories, consisting of a “Replacement and Installation Subclass” consisting of all owners of the above-mentioned tanks that: (1) have not cracked; or (2) experienced a crack from which no other property damage occurred, and a “Damages Subclass” consisting of owners of the above-mentioned tanks that fractured between the date of manufacture and the date of class certification, and resulted in property damages.

Settlement benefits. For the “Replacement and Installation Subclass,” the settlement agreement provides eligible class members with reimbursement of up to $300 per tank inclusive of acquiring a replacement tank and installation (receipts for installation will be required to support reimbursement request). In lieu of monetary benefits, eligible class members can elect to participate in the “Distribution Center Program,” which is available to eligible class members who reside within a 100-mile radius of a designated distribution center and enables the company to provide either a replacement tank through the conclusion of the claim period or an extended warranty on existing tanks to December 31, 2021.

Individuals in the “Damages Subclass” are entitled to recovery for unreimbursed out-of-pocket expenses incurred because of a cracked or broken tank. Those providing documentary proof of ownership and expenses are entitled to 100-percent reimbursement of out-of-pocket expenditures not to exceed an amount greater than a total of $4,000, while those without approved expense documentation who submit a signed declaration under oath attesting to damages and payment details are eligible for cost reimbursement of up to $150 per eligible tank.

Disclaimer of liability. The order granting preliminary approval of the settlement specifies that the settlement and approval order are not admissions of liability or fault by Porcelana Corona or a finding of the validity of any claims in the action or of any wrongdoing or violation of law by the manufacturer. The settlement is not a concession by the parties and cannot be offered or received as evidence in any pending or future civil, criminal, or administrative action or proceedings to establish any liability of or admission by the manufacturer.

Injunction. The preliminary settlement approval order enjoined all 2011 settlement class members from commencing, maintaining, continuing and/or prosecuting any action asserting any claims that fall within the scope of the released claims as defined in the stipulated settlement until the entry of the Final Order and Judgment, unless those individuals have validly opted out of the settlement and the court has approved the opt-out.

The case is Nos. 4:17-CV-001-ALM-KPJ and 4:19-CV-248-ALM-KPJ.

Attorneys: Nathan Scott Carpenter (Carpenter & Schumacher, PC) for Steven Cone. Darrell Lee Barger (Hartline Dacus Barger Dreyer LLP) for Sanitarios Lamosa S.A. de C.V., Vortens, Inc. and Porcelana Corona de Mexico, S.A. de C.V.

Companies: Sanitarios Lamosa SA de C.V.; Vortens, Inc.; Porcelana Corona de Mexico, S.A. de C.V.

MainStory: TopStory SettlementAgreementsNews ClassActLitigationNews HouseholdProductsNews DamagesNews DesignManufacturingNews TexasNews

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