I was reading Scott Wolfe’s (@scottwolfejr) post on whether or not builders are getting a free pass on Chinese Drywall claims and I began to think about how a class action lawsuit will help homeowners remedy the problems with their homes today.
Based on the uptick in traffic coming to this blog and my firm’s website from defective Chinese Drywall searches it is obvious that homeowners and condominium associations are following the recently filed lawsuits alleging class action claims against the manufacturers and distributors of Chinese Drywall. The main question that people are trying to answer is “how does a class action suit help me get the defective material out of my home?” Assuming class certification is even possible (and that is a subject for another blog), it will take many years for the class actions to be adjudicated. It may be more practical and cost effective to just file individual lawsuits against the manufacturer and distributors of the Chinese Drywall for violation of product liability statutes and state consumer fraud statutes, and against builders and contractors for negligence and breach of express and implied warranties. There may be many other claims that can be asserted against these defendants depending upon the law of the state governing the litigation. Since the manufacturer of the product is a Chinese company owned by a German parent company, collectability from these entities is open to question. Builders and subcontractors typically have commercial general liability insurance that may well provide an easier, quicker and much less expensive means for counsel to obtain relief for innocent victims who are stuck with homes containing hazardous Chinese Drywall. Filing individual suits has many potential advantages over waiting for class action suits to be adjudicated.
The question of whether the class action will be certified is often an expensive and very protracted battle because the plaintiff in a class action has to satisfy many onerous requirements including showing that they are representative of the entire class damaged by Chinese Drywall. Proving “commonality” among class members and “typicality” of claims may be very difficult. The manufacturer and distributors may make many creative arguments to challenge class certification. Among those that come most readily to mind are that the homes in the purported class are: (1) made of different materials which interface with the drywall differently; (2) designed by different architects using different design schemes; (3) located in different climates with different moisture conditions which affect the drywall and related materials differently; (4) were built using different subcontractors who installed the drywall and other building components in different ways in different homes; and (5) that there are other unrelated materials contributing to or serving as independent or intervening causes of the damages being attributed to the Chinese Drywall. The argument will be that these differences and many others prevent the plaintiffs in the class from satisfying the requirements for class certification. This battle will take years and will cost a fortune. Even if the battle is won, all that means is that the class is certified. The litigation of the liability and damages issues will then need to be fully litigated on the merits and tried if it cannot be settled.
The bottom line is that homeowners and condominium associations may want to consider why they should bother with this when individual suits against insured defendants may be sufficient to get you what you really want–money to pay to fix your homes. You should seek counsel from a qualified, experienced construction litigation attorney before deciding the best way for you to handle your individual claims.
If you suspect your home may be built with defective Chinese drywall, contact us here for a free no obligation case review.