Introduction
In August 2007, a class action lawsuit was filed against Viking Industries, Inc. The case is currently pending in the United States District Court, Eastern District of California - Sacramento Division, entitled Cartwright v. Viking Industries, Inc., Case No. 2:07-cv-2159 FCD/EFB. The lawsuit charges that the Viking Series 3000 windows manufactured by Viking between 1989-1999 are defective.
Plaintiffs' Allegations
Plaintiffs charge that the Viking Series 3000 window products, including horizontal sliding windows, single hung windows, and fixed windows manufactured from 1989 to 1999 are defective. The primary defect relates to the failure of the lower corners of the windows to keep water within the window frame.
The complaint alleges that the defects in Viking window products are not perceptible to consumers until water intrusion caused by the defect penetrates sheetrock and/or drywall, paint or wallpaper. When consumers have contacted Viking to report moisture problems with their windows, Viking has routinely denied their windows were defective and attributed the damage to other causes.
The Product Defect
Windows in residential buildings must be watertight. Viking Industries, Inc. placed a sticker on all Series 3000 windows asserting that the windows met the R-20 certification. The R-20 certification constitutes a representation to consumers, building professionals and trades that the windows meet American Architectural Manufacturers' Association ("AAMA") standards and that the windows are watertight. In fact, the Viking Series 3000 windows neither meet the "R-20" certification nor are they watertight. Read more about the Viking window product defect.
The Viking Warranty
Upon launching the Viking Series 3000 in 1989, Viking offered a one-year warranty on the 3000 Series products. In March, 1991, however, Viking amended the 3000 Series warranty, offering a "Lifetime Warranty" that claimed that the 3000 Series products would be "free from defects in material and workmanship...." Read more about the Viking Warranty.
The Defense Testing
Defendant's experts subjected 68 randomly selected homes to water testing. Approximately 43% of these purportedly randomly selected windows, 29 out of 68, failed the water test. In every case of failure, the windows leaked at the lower corners. Read more about the defense testing of the Viking windows.
Uniformity of the Defect
The scientific evidence developed both by Plaintiffs' and Defendant's experts demonstrate that the design flaws in the Viking Series 3000 windows are so fundamental that failure of the windows is inevitable. The nature of the failures are unique to the design and manufacture of the windows. The failure mechanisms are common to all Viking Series 3000 windows, and present uniform factual and legal issues for resolution in this case.
Case Status: Classes Certified
The case is entitled Cartwright v. Viking Industries, Inc., and was filed in California Superior Court. Subsequently, it was removed by Viking to the U.S. District Court for the Eastern District of California in Sacramento.
On September 11, 2009, U.S. District Court Judge Frank C. Damrell, Jr., granted in part, and denied in part Plaintiffs' motion for class certification, which allows the case to proceed as a class action.
With respect to Plaintiffs' claims for violation of the California Consumer Legal Remedies Act and Unfair Competition Law and fraudulent concealment and unjust enrichment claims, the Court certified the following class:
All current and past owners of residential property in California in which Viking Series 3000 windows manufactured by Viking Industries Inc. between approximately March 1, 1991 and 1999 (the "Class Period") are or have been installed. The proposed class includes property owners who have replaced their Viking windows. Excluded from the Plaintiff Class are the Defendant, any entity in which Defendant has a controlling interest, and their legal representatives, heirs and successors, and any judge to whom this case is assigned, and any member of the judge's immediate family. Claims for personal injury are excluded from the claims of the Plaintiff Class which are alleged herein.
The court also certifies the following subclass with respect to plaintiffs' breach of express and implied warranty claims:
All original owners of residential property in California who are the first occupant resident owner in which Viking Series 3000 windows manufactured by Viking Industries Inc. between approximately March 1, 1991 and 1999 (the "Class Period") are or have been installed. The proposed class includes property owners who have replaced their Viking windows. Excluded from the class are named Plaintiffs in pending lawsuits against Viking Industries, Inc. relating to Series 3000 windows other than in Cartwright v. Viking; also excluded is the Defendant, any entity in which the Defendant has a controlling interest, and their legal representatives, heirs and successors, and any judge to whom this case is assigned, and any member of the judge's immediate family. Claims for personal injury are excluded from the claims of the Plaintiff Class which are alleged herein.
Parallel Class Action in California State Court
On April 9, 2009, in Case No. CV 025771, the Honorable Carter Holly of the Superior Court of California, County of San Joaquin, Stockton Division, certified a litigation class in express and implied warranty for the same products at issue in this lawsuit, the Viking Series 3000 windows. See Deist v. Viking Industries, Inc., Case No. CV025771 (San Joaquin Sup. Ct.). Read more about the California parallel action.
Your Opt-Out Rights
The Court will rule on or about August 7, 2009 in the Cartwright v. Viking case, whether the matter will be certified as a class action. If the Cartwright matter is not certified as a class action by the Federal District Court, you will have no claim in the Cartwright matter. You will participate in the Deist matter only, unless you exclude yourself, (opt-out) from the Deist matter.
If the Cartwright case is certified as a class action, you will have the option to exclude yourself from the Deist matter and participate in the Cartwright matter. In that event, your rights will be determined by the settlement or judgment in the Cartwright matter. You will need to inform yourself whether the Cartwright matter has been certified, which we expect will be on or about August 7, 2009.
Importantly, the "Opt-Out" date for class members to exclude themselves from the Deist class is August 28, 2009. That means you will have between approximately August 7, 2009 and August 28, 2009 to decide whether to opt-out of the state court Deist class action. The status of the Cartwright class certification motion will be posted at this website on August 7, 2009.
Contact Class Counsel
If you own or owned a property in California with Viking windows manufactured from 1989 to 1999, and wish to learn more about this litigation, please click here to contact class counsel.
Lieff Cabraser Heimann & Bernstein, LLP and David Birka-White are not affiliated with Viking Window Systems. The use of the Viking name on this website is strictly for product identification and informational purposes.
