                                                              F I L E D
                                                        United States Court of Appeals
                                                                Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                            December 20, 2005
                             TENTH CIRCUIT
                                                               Clerk of Court

FREDERIC V. MALEK; MARLENE
A. MALEK; MORRIS BART;
CHARLES PATTERSON; FONDA
PATTERSON; STEVEN SPIRITAS,                     No. 04-1455
on behalf of the AK41 Trust;            (D.C. No. 02-B-1772 (MJW))
RANDALL LEE JOHNSON; NANCY                       (D. Colo.)
M. RIEMER; WARREN
LICHTENSTEIN; ROBERT J. FREY;
JULIE BETH NASTER; BEAVER
CREEK LODGE CONDO OWNERS
ASSOCIATION; JEFFREY MILLER;
PAULA MILLER; GARY LESNICK;
WOODROW CHAMBERLAIN;
BARBARA CHAMBERLAIN;
MICHAEL AMISS; BERRYDALE
CORPORATION; ROLLAND
MCGINNISS; CAROLYN
MCGINNISS; DR. RICHARD
MARKS; MARLENE MARKS;
STEVE GRANTHAM; DONNA
GRANTHAM; AKE LJUNGBERG; C.
JAMES PADGETT; ANTHONY
MOORES; LISBETH MOORES;
PAMELA WATSON JOHNSON;
DIANE LICHTENSTEIN; HELEN E.
STONE; SHARON BURROW;
GRADY BURROW; SUSAN J.
MCFARLANE; LAWRENCE MARX,
as Trustee on behalf of the Lawrence
Marx III Qualified Personal Residence
Trust No. 1 and Trust No. 2 and the
Susan Marx Qualified Personal
Residence Trust No. 1 and Trust No.
2; SUSAN MARX, as Trustee on
behalf of the Lawrence Marx III
Qualified Personal Residence Trust
 No. 1 and No. 2 and The Susan Marx
 Qualified Personal Residence Trust
 No. 1 and Trust No. 2; ROBERT S.
 WEST; WARNER BROS.
 DISTRIBUTING INC.; JOHAN
 LJUNGBERG; JENNY LJUNGBERG,

          Plaintiffs-Appellees,
 v.

 GOODYEAR TIRE AND RUBBER
 COMPANY, an Ohio corporation,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before KELLY, MURPHY, Circuit Judges and ARMIJO **, District Judge.


      This appeal arises from a diversity action brought under Colorado state law

by the owners of 26 Colorado homes (“Homeowners”) against Defendant-

Appellant Goodyear Tire and Rubber Company (“Goodyear”). After a jury trial,

some, but not all, Homeowners were awarded damages against Goodyear. The

district court awarded prejudgment interest on those damages. Goodyear appeals


      *
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1 (G). The cause therefore
is ordered submitted without oral argument.
      **
        The Honorable M. Christina Armijo, District Judge, United States District
Court for the District of New Mexico, sitting by designation.

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the district court’s determination of prejudgment interest. Because Goodyear’s

contentions are controlled by the ruling in Loughridge v. Goodyear Tire & Rubber

Co., Nos. 04-1261, 1263, slip op. at 40-48 (10th Cir. 2005), we affirm the district

court’s amended judgment.

      This case is one in a series of litigation in which plaintiffs have alleged that

Goodyear manufactured a defective hose, “Entran II,” that was used in the

hydronic heating systems installed in their homes. These systems use Entran II to

circulate warm fluid under indoor flooring as an alternative to conventional

heating systems, or under driveways and sidewalks to melt snow and ice.

      Homeowners began noticing problems with their hydronic heating systems,

including cracking, leaking and sediment build-up in their Entran II hose, as early

as 1991. In many cases, these problems required the removal and replacement of

the hose in its entirety, as well as the replacement of most other parts of the

hydronic heating system.

      Homeowners brought claims against Goodyear under Colorado law seeking

recovery for sale of a defective product and negligence, including negligent

design and negligent failure to warn. After the district court granted, in part, the

Homeowners’ motion for summary judgment based on collateral estoppel, only

two issues were tried to the jury: causation and damages. Homeowners claimed

that Goodyear was liable for the costs of removing and replacing the Entran II


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hose installed in their homes, the diminution in value of their homes, and other

costs and losses. The jury returned special verdicts in favor of the Homeowners

of 20 homes for sale of a defective product and negligence, awarding them

removal and replacement costs as well as other costs and losses.

      After trial, the prevailing Homeowners moved for prejudgment interest

under Colo. Rev. Stat. § 5-12-102(1)(b) (2004) arguing that prejudgment interest

should accrue on their damages from the date Entran II was installed in their

respective homes. The district court granted Homeowners’ motion in part and

denied it in part. The court held that (1) Homeowners who owned their homes at

the time Entran II was installed are entitled to prejudgment interest from the date

of installation; and (2) Homeowners who purchased their homes after Entran II

had been installed are entitled to prejudgment interest from the date they

purchased their homes. Accordingly, the district court entered an amended

judgment awarding the prevailing Homeowners prejudgment interest in the

aggregate of approximately $4.9 million.

      Goodyear appeals from the district court’s amended judgement arguing that

the district court should have set the accrual date for prejudgment interest on one

of two alternate dates: (1) when the Homeowners paid for their repair or

replacement costs; or (2) when the Homeowners’ claims accrued for the purposes

of the statute of limitations.


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      In Loughridge v. Goodyear Tire & Rubber Co., Nos. 04-1261, 1263, slip

op. at 40-48 (10th Cir. 2005), this court gave thorough consideration to virtually

identical arguments as to the accrual date for prejudgment interest, but ultimately

rejected them. Based on such authority, the district court’s amended judgment is

AFFIRMED.

                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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