Antitrust Law Daily Wrap Up, ADVERTISING—S.D. Tex.: Claims over allegedly defective HVAC system blown by failure to timely serve defendants, (Jul 17, 2015)

By Michael Menzhuber, J.D., LL.M.

A consumer’s claim that a home air conditioning/heating (HVAC) system manufacturer, and the installer of that system, made false and misleading statements in the marketing and sale of the HVAC system, in violation of the Deceptive Trade Practice Act (DTPA), was dismissed by the federal district court in Houston, Texas. The court determined that the claim was barred by the DTPA two-year statute of limitation because of a failure to show due diligence in timely serving the defendants (Lundstrom v. Dependable Comfort Air Conditioning & Heating Inc., July 16, 2015, Werlein, E.).

Background. Vonnie Lundstrom suffered from respiratory issues that were aggravated by environmental pollutants and irritants. Desiring to have the “cleanest air possible”, she contacted Dependable Comfort Air Conditioning & Heating Inc. (Dependable Comfort) about installing a Trane CleanEffects System (HVAC system). The installation was done in mid-May 2008 and Dependable Comfort performed regular maintenance calls on the HVAC system through 2010.

Lundstrom’s respiratory issues continued to worsen after the installation of the HVAC system and she ultimately decided to relocate to Montana in search of clean air. In October 2010, in the course of selling her house, she discovered that the HVAC system was blowing dirty air and airborne allergens into her home. She filed suit against Dependable Comfort and Trane U.S. Inc. (Trane), the manufacturer of the HVAC system, and its parent company, Ingersoll-Rand (collectively, “defendants”) alleging: (1) negligence; (2) violation of the DTPA; (3) breach of contract; and (4) strict products liability. After she voluntarily abandoned her strict products liability claim, the defendants moved for summary judgment on the three remaining claims.

Deceptive Trade Practices Act (DTPA). Both Trane and Dependable Comfort argued that Lundstrom’s DTPA claim was barred by the DTPA two-year statute of limitations. The court determined that, because she did not discover the defects in the HVAC system until October 2010 and she filed her DTPA claim on September 2012, Lundstrom’s lawsuit was filed within the two-year statute of limitations period. However, the court found that she took no action to serve any of the defendants in a timely manner. Lundstrom did not obtain summons from the court until February 12, 2013, causing Trane to be served on February 13, 2013, and Dependable Comfort on February 18, 2013.

The court noted that, under Texas Law, “a plaintiff must not only file suit but also use due diligence in procuring service on the defendant in order to toll the statute of limitations.” The court further noted that lack of due diligence maybe found as a matter of law if the plaintiff offers not excuse for his failure to procure service or if the excuse conclusively negates diligence.

Instead of attempting to show due diligence, Lundstrom claimed to be excused from the statute of limitations because she was fully disabled. The court, however, found that a determination that one is disabled and entitled to Social Security benefits (as was Lundstrom) did not carry an exemption from the statute of limitations. It also found that, even if Lundstrom’s hospitalization was sufficient to raise a fact issue on whether due diligence was shown, there was no rational excuse for not exercising due diligence after being released from the hospital. Since she failed to exercise due diligence in timely serving each defendant after filing the case and within a “due diligence” period of time after the statute of limitations expired, her DTPA claims were time barred.

Remaining Claims. The court dismissed Lundstrom’s negligence claim against Trane because she offered no evidence to raise a genuine issue of material fact. The court also dismissed Lundstrom’s negligence and breach of contract claims against Dependable Comfort, as they pertained to her contention that Dependable Comfort caused her injuries, because there was no evidence that the HVAC system was the cause of aggravating her respiratory problems.

The court did, however, find there was a genuine issue of material fact as to whether Dependable Comfort’s installation and maintenance of HVAC system was defective and caused damages by the repairs and diminished market value of the house. Therefore, it denied Dependable Comfort’s motion to dismiss Lundstrom’s negligence and breach of contract claims as they pertained to the alleged defective installation and negligent maintenance of the HVAC system.

The case is No. H-13-1728

Attorneys: Vonnie Lundstrom, pro se. Christine Kirchner (Chamberlain, Hrdlicka, White, Williams & Aughtry) for Dependable Comfort Air & Heat, Inc. Bobby Lance Vincent (Ritcheson Lauffer Vincent) for Trane, American Standard Inc., and Ingersoll-Rand Co.

Companies: Dependable Comfort Air & Heat, Inc.; Trane; American Standard Inc.; Ingersoll-Rand Co.

Cases: Advertising StateUnfairTradePractices TexasNews