Proposed Class Overbroad in Home Depot Window Suit

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By Martina Barash

Sept. 8 — Property owners allegedly misled by Home Depot's assurances of quality window and door installation can't proceed as a class because class members can't be clearly identified.

Even the named plaintiffs' second class definition, a refinement of the first, “is overbroad and fails to render the putative class clearly ascertainable,” the U.S. District Court for the Middle District of Florida said Sept. 4. It declined to certify the class under Fed. R. Civ. P. 23.

‘Closed' Inspection Installations Targeted

Plaintiffs David A. Varnes, Betty Spencer, Joseph Williams and Jason Nimey alleged that Home Depot USA, Inc. and a related company followed different practices in counties with “open” and “closed” inspections, according to the court.

In open counties, where inspectors can observe the installation, Home Depot told its subcontractors to follow the Florida Building code and window and door makers' instructions, the plaintiffs said.

But in “closed” counties, Home Depot told installers to use the existing window or door support, regardless of whether it had adequate “bucks,” or structural framing members, the plaintiffs alleged.

The installers' building-code violations resulted in water intrusion, structural weakness and lower energy efficiency, they said.

After various dismissal motions were granted, the plaintiffs' surviving claim for which they wanted to proceed as a class was under the Florida Deceptive and Unfair Trade Practices Act.

The plaintiffs first defined the class as encompassing all “Florida property owners whose windows or sliding-glass doors were installed” by Home Depot in a specified time period. They subsequently narrowed the definition to property owners in closed-inspection counties and cities.

The Buck Stops Here

But the court said the definition was still overbroad. Wood-framed window and door openings don't need added bucks because the wood itself acts as a buck, the court said. Indeed, the plaintiffs referred to masonry openings in their brief, the court said.

But even adding a masonry limitation to the class definition wouldn't be sufficient because some people have adequate preexisting bucks, the court said.

“If an adequate preexisting buck was already present, then Defendants had no need to install a new buck,” the court said. “[T]he putative plaintiff would have suffered no damages” and would lack a viable claim, the court said.

Finally, whether potential claimants have a cause of action here depends on whether the installation violated the Florida Building Code and the manufacturer's instructions, the court said. To determine this, the court said, the plaintiffs “would have to rely on one of their experts to measure the window or door units, remove side jamb screws, and probe the interior of the windows”—for each putative class member.

Such “individualized subjective tests” are prohibited within the Eleventh Circuit, the court said.

Judge Brian J. Davis wrote the opinion.

Morgan & Morgan PA represented the plaintiffs.

Moseley, Prichard, Parrish, Knight & Jones, along with King & Spalding, represented Home Depot.

To contact the reporter on this story: Martina S. Barash in Washington at

To contact the editor responsible for this story: Steven Patrick at

The opinion is available at

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