## F I L E D United States Court of Appeals Tenth Circuit 

### December 20, 2005

Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

FREDERIC V. MALEK; MARLENE A. MALEK; MORRIS BART; CHARLES PATTERSON; FONDA PATTERSON; STEVEN SPIRITAS, on behalf of the AK41 Trust; RANDALL LEE JOHNSON; NANCY 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. 04-1455 (D.C. No. 02-B-1772 (MJW))

(D. Colo.)* After examining the briefs and appellate record, th is panel has determined

unanimously that oral argument would not materiallyassist 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 de signation. - 2 - 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”) a gainst DefendantAppellant Goodyear Tire and Rubber Company (“Goodye ar”). After a jury trial, some, but not all, Homeowners were awarded damages against Goodyear. The district court awarded prejudgment interest on thos e damages. Goodyear appeals- 3 -

the district court’s determination of prejudgment i nterest. Because Goodyear’s contentions are controlled by the ruling in Loughri dge 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 whichplaintiffs 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 al ternative to conventional heating systems, or under driveways and sidewalks t o melt snow and ice. Homeowners began noticing problems with their hydro nic heating systems, including cracking, leaking and sediment build-up i n their Entran II hose, as early as 1991. In many cases, these problems required th e 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 Co lorado law seeking recovery for sale of a defective product and neglig ence, including negligent design and negligent failure to warn. After the di strict court granted, in part, the Homeowners’ motion for summary judgment based on co llateral 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- 4 -

hose installed in their homes, the diminution in va lue of their homes, and other costs and losses. The jury returned special verdic ts in favor of the Homeowners of 20 homes for sale of a defective product and neg ligence, awarding them removal and replacement costs as well as other cost s and losses. After trial, the prevailing Homeowners moved for pr ejudgment interest under Colo. Rev. Stat. § 5-12-102(1)(b) (2004) argu ing that prejudgment interest should accrue on their damages from the date EntranII was installed in their respective homes. The district court granted Homeo wners’ motion in part and denied it in part. The court held that (1) Homeown ers who owned their homes at the time Entran II was installed are entitled to pr ejudgment interest from the date of installation; and (2) Homeowners who purchased their homes after Entran II had been installed are entitled to prejudgment inte rest from the date they purchased their homes. Accordingly, the district c ourt entered an amended judgment awarding the prevailing Homeowners prejudg ment 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 pai d for their repair or replacement costs; or (2) when the Homeowners’ clai ms accrued for the purposes of the statute of limitations.- 5 -

In Loughridge v. Goodyear Tire & Rubber Co. , Nos. 04-1261, 1263, slip op. at 40-48 (10th Cir. 2005), this court gave thor ough consideration to virtually identical arguments as to the accrual date for prej udgment interest, but ultimately rejected them. Based on such authority, the distri ct court’s amended judgment is
AFFIRMED. Entered for the Court
Paul J. Kelly, Jr. Circuit Judge