Posted on 08 Sep 2011
Hundreds of Floridians may want to opt out of a proposed $55 million federal settlement over faulty Chinese drywall in hopes of pursuing individual lawsuits in state courts, the attorney for two families said Wednesday.
The lawyer, David Durkee, said a key hearing Friday in Broward County could be a major step in determining whether people dissatisfied with the class-action settlement can take their cases before juries in Florida courts.
"They don't want any part of that settlement," Durkee said. "They have chosen state court. They want to proceed individually and they want their day in court."
The settlement, first announced in June, involves Banner Supply Co., a major distributor of Chinese drywall, and thousands of affected homeowners, builders, installers and others in Florida. U.S. District Judge Eldon Fallon in New Orleans - where lawsuits in several states were consolidated for pretrial purposes - gave the deal preliminary approval in July.
Thousands of homes mainly in the South were affected by installation of Chinese drywall that has a foul odor, can corrode wiring and metal in appliances and cause health problems. The Banner settlement involves mostly Floridians.
Fallon also ordered a temporary halt to drywall lawsuits filed against Banner in state court. The hearing Friday before Broward County Circuit Judge Charles Greene concerns whether cases filed by the families represented by Durkee can proceed despite the federal order and settlement.
Joseph and Patricia Pensabene of Davie, one of the families suing Banner in state court, said Wednesday they don't believe the federal settlement will fairly compensate them for the gutting of their home and health problems suffered by their two daughters, including vomiting and eye irritation.
"This has been an absolute tragedy for myself and my family," said Joseph Pensabene. "We believe we were 100 percent done wrong. We want our day in court and a chance to be heard."
The total amount to be divided among class members in the Banner settlement has not yet been revealed, Durkee said. But he said a key issue for
Florida homeowners is whether others affected by the defective drywall - builders, installers and others in the remodeling and construction businesses - could also claim a chunk of the settlement cash. Many of them have also been sued.
"We think it could be just a few thousand dollars for these families," Durkee said. "This is a very small percentage of their losses."
There are hundreds of other people across Florida who have either filed state lawsuits or wish to against Banner, depending on the outcome of these initial cases in Broward County and elsewhere.
In court papers, Banner said it supports the settlement and opposes the attempt by Durkee's clients to pursue their separate state lawsuits. Michael Peterson, a lawyer for Banner Supply, said the South Florida plaintiffs' lawyers are trying to derail the settlement by creating the false and misinformed impression that the Banner settlement is the only settlement that will fund homeowner repairs and that those funds will be insufficient.