Burke v. Lennox Industries, Inc.

PLAINTIFF’s SMALL DEBT PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

Mark Burke and Joanna Burke, Plaintiffs, file this original petition complaining of Lennox Industries, Inc., Defendant herein, and respectfully show the court the following;

Relevant Facts

Hurricane Harvey

On August 25th of 2017, Hurricane Harvey fiercely announced its evil intentions to Texas. In Kingwood, the Plaintiffs’ home near the Jacinto River was supposed to be above the flood zone, and it was. However, without warning to residents in the Plaintiffs community, the US Army Corp of Engineers made a fateful decision. They opened the dams at the Barker and Addicks reservoirs and the San Jacinto River Authority released water from Lake Conroe. It was this preventable surge of water which flooded Plaintiffs residential property.  When the Hurricane subsided, Plaintiffs were sheltered in the upper floor of the house without electricity or basic supplies, while the water was over 4 ft high inside the property on the ground floor.

Randalls, Authorized Lennox Dealer (2017)

As a result, all air-conditioning units required quick replacement. It was a difficult time to find companies and contractors to quote as they were so busy with jobs. However, Plaintiffs eventually settled with a Lennox-approved dealer in Tomball, Randalls, who quoted $12,000 for the new  replacement Lennox Air Conditioning units (“units”) on Sep. 5, 2017, installed.

Plaintiffs were never advised, nor did Lennox or their Dealer disclose, that Lennox units contain a Lennox Coil [and/or Part(s)] which was and still is defective, because they are apparently unreasonably susceptible to formicary corrosion and failure, causing the  Lennox Air Conditioning units to leak and ultimately stop cooling. See; complaint, Doc. 1, Thomas v. Lennox International, Inc. (1:13-cv-07747) District Court, N.D. Illinois (2013).

After the installation, the Plaintiffs were provided details of the  Lennox warranty, which was for 5 years with an additional 5 years for parts. Plaintiffs noted that these Lennox brochure and postcard enclosures recommended registering their units with Lennox to ensure the warranty was validated. Plaintiffs duly and timely complied and registered on the Lennox website, as admitted[1] by Lennox during the Plaintiffs recent denied warranty claim.

Randalls, Unauthorized Lennox Dealer (2022)

The Hottest Summer

The summer of 2022 turned out to be one of the hottest ever recorded in Houston. Unfortunately, during the peak heatwave in July[2], one of the 3-units cooling the residence, and which  was responsible for cooling the upstairs, stopped working. The upstairs includes 2 bedrooms. Plaintiff Mark Burke and Joanna Burke occupy those bedrooms. The heat made it unbearable to sleep. This untenable situation has persisted for the reasons explained herein.

Plaintiff  Mark Burke [“MB”] made a call to the original dealer, Randalls, and arranged for them to come out. Once more, due to the heat surge in Houston, that appointment would be scheduled for a couple of days out, which turned out to be late afternoon on July 14, 2022.

The Sales Pitch was Questioned

The owner’s son [“Tech”] arrived in his personal vehicle. His analysis; No coolant in the unit, which would require a complete refill of freon, and; replacement of the [evaporator] Coil – with a disclaimer part(s) would require to be ordered and another appointment scheduled thereafter.

MB was skeptical, as Lennox advertised these units as never needing coolant. As stated, Tech confirmed it was a ‘leak’ and the part(s) would need to be ordered to fix the leak, however, he had ‘special additive’ in his freon which ‘seeks out and patches any areas that are leaking’, and as an immediate fix to get cool air into the home during the extreme heat in July.

Again, MB was skeptical, and specifically stated to the Tech he had a friend when living in Scotland (20 years ago) who used to try and sell that kind of ‘additive’ for motor vehicles to reduce fuel consumption. MB didn’t believe him either and he was a close friend.  The Tech didn’t contest MB’s statement, instead changed the topic to the cost to fill the freon[3].

Providing Cool A/C to the Elder Parents was Essential

Considering any part(s) would require to be ordered, MB couldn’t let his elder mother suffer any more without A/C upstairs and so he pulled the trigger on filling the freon.

The Sales Pitch Was Correctly Called by Mark Burke

The new freon with the special additive to fix leaks lasted less than a week, and at a cost of $1,311 – a very expensive fill-up. Plaintiffs called the Tech’s company to revisit with the replacement Coil [part] and other essential parts as required. The Plaintiffs explained the coolant had leaked and the unit had stopped providing cool air.

Randalls refused. It was during a conversation with John Burke (father/husband, recently deceased), the company sheepishly admitted it was no longer an authorized Lennox dealer. It is axiomatic that an unauthorized Tech [normally] voids any warranty.

Mark Burke is Dissatisfied with Lennox Warranty Claims

Around the time calls were being made to Randalls by John Burke, MB submitted a warranty claim[4] to Lennox, via a form on their website.

On August 2[5], C. Muse, Customer Support at Lennox (“Muse”), responded via email requesting information. This was submitted by return on August 3[6].

On August 9[7], Muse finally responded, but his response was called out as being duplicative by MB on the same day.

On August 15[8], Muse responds denying the warranty claim to replace the ‘lemon’ unit, stating that the warranty only covers parts, not labor, nor a replacement unit;

“The Lennox warranty does not cover labor, including refrigerant, however, in the event a part needs to be replaced, the part will be supplied, under the terms of the warranty provided with your unit.”

However, this contradicts Muse’s opening statement – an irrefutable admission;

“Lennox run tests it’s equipment prior to shipment, and once a system has been installed, charged, and sealed, it is not necessary to add more refrigerant in the future.”

The Death of John Burke, Father and Husband

On August 18[9] and in response to the denial of the warranty claim, MB expressed (i) his legal arguments to Muse including Lennox admissions, and; (ii) expressed how sick 85 year old John Burke had become (John Burke would expire in ICU at Humble Memorial Hospital on Sunday, Sep. 4, 2022). There was no empathy or concern from Muse as to the elder Burkes and the toll this issue was having on the family in such extreme weather.

No Blame Assigned to Randalls or Lennox

Muse responded on August 22[10] to explain the authorized Lennox dealer network system and it works. It is a tainted perspective.

Muse did not address the fact that Randalls scheduled an appointment, and then arrived at the Burkes residence knowing they were no longer authorized Lennox dealers and without disclosing that fact to the Plaintiffs.

Muse did not explain how or why Randalls were no longer authorized dealers.  The Plaintiffs were left to consider the circumstances presented.

Based on the ‘sales pitch’ and conversation MB had with Tech, it was apparent the parents were no longer active in the Randalls business and the son, Tech, was not capable of running the company, and had little motivation to do so. MB was told by Tech he was actively marketing his home for sale to live in an RV on Lake Conroe with his dog, girlfriend and to fish and travel – to watch his prospect son play college football. Tech admitted ‘good’ staff ‘willing to work’ was an issue and that is why he was on this call-out.

It was very evident to MB, combining all the evidence; Tech needed the money from this call-out. In short, due to the change in the family business management, it’s now a struggling business, one which appears destined  for imminent closure.

Muse did not say Randalls unauthorized visit voided the Lennox warranty, no he worded the response carefully, stating that “Lennox “recommends” that the system be serviced by a qualified service technician at the beginning of each cooling and/or heating season.”  Muse refers only to an annual inspection “recommendation”, which is optional. What is not optional is repair by an unauthorized Lennox dealer. The Plaintiffs complied with the terms of the warranty, understandably believing Randalls to be an authorized dealer. Lennox had repeated opportunities to send out an authorized  Lennox dealer to  (i) confirm the leak; (ii) independently assess the unit[s], and; (iii) Randalls determination the freon was leaking due to an inferior Evaporator Coil [and/or parts] and as such would need replaced.  Lennox waived that right.

Lennox Admits to Liability for any Leaks

On August 23[11], MB responded to Muse, expressing forcefully the facts. The controlling arguments;

First, Muse and Lennox’s admission is legally binding;

“Lennox run tests it’s equipment prior to shipment, and once a system has been installed, charged, and sealed, it is not necessary to add more refrigerant in the future”.

The Lennox Coil [Part(s)] are also Faulty and ‘Inferior’

Second, Lennox  states it will pay for the part(s) causing the leak, but not the labor. As admitted by Lennox, there should be no need for the Coil [part(s)] to be replaced, per Lennox’s response above.

However, temporarily setting that admission by Lennox aside,  when MB researched the Coil [part(s)] to be replaced, he uncovered;

• Lennox settled a class action regarding the inferior Coil [part(s)][12] in federal court on Dec. 9, 2015. See; Thomas v. Lennox International, Inc. (1:13-cv-07747) District Court, N.D. Illinois (2013-2015).
• There are literally hundreds of Lennox customers complaining[13] about the same Coil [part(s)], and as recently as this summertime. The consumer complaints highlight (a) the expense of the labor to install the parts, (b) the delay in the dealer obtaining the parts from Lennox and (c) the fact that the parts generally fail once more within a short period of time.

Despite raising these facts with Muse, he responded on August 26[14] with further general denials and unavailing arguments. The Plaintiffs did not respond to Muse, as John Burke would be rushed to hospital by ambulance and admitted to ER and then moved to ICU. He would not recover.

If Lennox Only Offers to Replace Parts on Its Warranty, You Cannot Continue to Sell Inferior and Faulty Parts

Asking consumers to pay thousands of dollars in labor to replace the leaking freon and the back-ordered Coil, only to find out this part is defective and generally fails to work in a short amount of time, leaves the consumer no choice but to purchase new replacement Air Conditioning units from another vendor, or face the uncertainty and distinct possibility of having to replace the inferior and faulty coil every other year or so and the costly expenses ( including labor) incurred to do so.

If Lennox Coil [Part(s)] are Faulty, Unit Replacement Should be Standard Under the Terms of the Warranty

The Plaintiffs assert the Lennox Warranty[15] is contractually void as it is fails to provide the consumers any protection, or viable options apart from a promise to replace the defective unit. In this instance, the replacement is necessary as the Coil [part(s)] required are known to be defective, based on the evidence provided herein.

See; A California federal jury found on Tuesday, October 4^th, 2022, General Motors breached certain warranties and violated a state consumer protection law by selling cars with a hidden engine defect that caused excessive oil consumption, awarding about 38,000 owners in the class action damages totaling just over $100 million. The case was filed in the United States District Court for the Northern District of California on December 19, 2016 (Siqueiros v. General Motors LLC, 16-cv-07244-EMC).

The purported disclaimer of warranties is also ineffective because Lennox does not provide the Lennox Warranty to purchasers of Lennox units before or at the time of purchase. Consumers only learn of such purported disclaimers at the time of installation of their Lennox Air Conditioning units, and such limitations cannot be part of the bargain.

Current Cost to Replace Lennox Units

As stated above, the Plaintiffs products are inferior, and one unit has stopped working. The Plaintiffs anticipate that the other 3-ton unit and the 5-ton unit is likely to fail, as they too rely on the same defective parts and as clearly identified in the original Randalls quote[16].

The cost to repair rather than replace is unreasonably expensive and the facts clearly show that these repairs are short-term. The only possible solution is full replacement and installation of these 3 units from another vendor. The Plaintiffs are currently mourning the loss of John Burke, father and husband of  Joanna Burke for 64 years and will provide proof of damages and cost to replace units with another vendor before trial.

Count I

Express Warranty

Plaintiffs re-allege and incorporates each allegation set forth above as if fully written herein.

Lennox breached its express warranties because the Lennox units were not fit for the ordinary purpose in which they are used and because they were not free from defects in parts and workmanship that affect performance under normal use and maintenance.

Lennox also breached its express warranty by refusing to replace the defective ‘lemon’ unit with a new unit when Plaintiffs expressed knowledge from online research from real customers that the ‘parts’ offered to fix any leak were also defective, parts were known to be unavailable, as well as very expensive when including labor charges to repair the unit and for these repairs to fail again in a short period of time.

Count II

Implied Warranty of Merchantability

Plaintiffs re-allege and incorporates each allegation set forth above as if fully written herein.

Lennox breached the implied warranty of merchantability because Lennox unit[s] are not of merchantable quality or fit for their ordinary and intended use. They contain a defect at the time of their sale which resulted in leaking of freon and failure of the product, when used in a normal, unsurprising, and customary way.

The defects at issue are latent defects. Plaintiffs could not have known about their Lennox units propensity for failure. Plaintiffs notified Lennox of the breach. Plaintiffs sustained injuries and damages because of the breach. The exclusions and/or limitations on Lennox’s implied warranties are unconscionable and/or fail their essential purpose.

As a direct and proximate result of Lennox’s breach of the implied warranty of merchantability, Plaintiffs have suffered damages in amount of $20,000, to be proven at trial.

Plaintiffs are entitled to the full remedies provided under Chapter 2 of the Texas Business and Commerce Code (Tex. Bus. & Com. Code Ann. §§ 2.101 to 2.725), as well as all other applicable remedies.

Count III

Implied Warranty of Fitness for a Particular Purpose

Plaintiffs re-allege and incorporates each allegation set forth above as if fully written herein.

Lennox has breached the implied warranty of fitness for a particular purpose. The defectively designed Lennox units are not fit for the particular purpose for which they were purchased by Plaintiffs to perform. The Lennox units are not fit for their intended use because the design or manufacturing defects alleged herein render them incapable of providing cool air to Plaintiffs home. Lennox’s actions, as complained of herein, breached their implied warranty that the Lennox units were fit for such use, in violation of Texas laws.

Moreover, the limitations on Lennox’s implied warranties are unconscionable and/or fail their essential purpose.

Plaintiffs have incurred damages as described herein as a direct result of the failure of Lennox to honor its implied warranty. Plaintiffs would not have purchased the Lennox units had they known the truth about the defects; nor would they have suffered the collateral effects and damages associated with these defects.

Count IV

Texas Deceptive Trade Practices — Consumer Protection Act. TEX.BUS. COM.CODE ANN. § 17.41-.63 (Vernon 1987 and Supp. 1995)

Plaintiffs re-allege and incorporates each allegation set forth above as if fully written herein.

Defendants’ acts and practices, alleged herein, constitute unfair, deceptive, and/or fraudulent business practices in violation of the Texas Deceptive Trade Practices Consumer Protection Act and Texas Business and Commerce Code, including but not limited to, Defendants’ sale of defective Lennox units.

Defendants intended for Plaintiffs to rely on its deceptive acts and practices, and such deceptive acts and practices occurred in the course of conduct involving trade or commerce. Plaintiffs were exposed to such misrepresentations and were deceived.

Defendants’ violation of Texas laws as stated above caused Plaintiffs to sustain substantial and ascertainable losses of money and/or property and other damages because they were induced to purchase or paid a price premium due to the false and misleading advertising and marketing of Lennox units and/or Defendant’s failure to disclose the defects of said products. In reality, their purchases are of significantly diminished value because the Lennox unit(s) do not perform their sole function without the need for costly repairs.

Count V

Unjust Enrichment

Plaintiffs re-allege and incorporates each allegation set forth above as if fully written herein. Plaintiffs conferred a benefit upon Lennox. Namely, Plaintiffs paid money for ownership of their Lennox units.

Lennox retained that benefit under circumstances which make it inequitable for Lennox to retain it without paying the value thereof. Specifically, Lennox retained that benefit even though the Lennox units which were delivered and installed in Plaintiffs residence contain known defective part(s).

Plaintiffs purchased the Lennox units from a Lennox’s dealer/agent, in part, because of Lennox’s advertisements, marketing and product claims, and a result, a relationship between the parties has been created even though Plaintiffs did not purchase Lennox units directly from Lennox.

As set forth above, Lennox misrepresented the relevant Lennox units as free from design defect through it marketing, advertising, product packaging, and print publications specifically designed to entice Plaintiffs, homeowners, builders, contractors, and others to buy Lennox units.

Because Lennox’s retention of the non-gratuitous benefit conferred on it by Plaintiffs is unjust and inequitable, Lennox must pay restitution to Plaintiffs for its unjust enrichment, as ordered by the Court.

Count VI

Fraudulent Concealment

Plaintiffs re-allege and incorporates each allegation set forth above as if fully written herein.

Lennox knew or should have known that the Lennox units were defective in both design and part(s), were not fit for their ordinary and intended use, and performed in accordance with neither the advertisements, marketing materials and warranties disseminated by Lennox nor the reasonable expectations of ordinary consumers.

Lennox fraudulently concealed from and/or intentionally failed to disclose to Plaintiffs the Coil [Part(s)] were defective and still are defective.

Lennox had exclusive knowledge of the defective nature of the units, which house the defective Coil Part(s) at the time of sale.

The defect is latent and not something that Plaintiffs, in the exercise of reasonable diligence, could have discovered independently prior to purchase, because it is not feasible.

Lennox had the capacity to, and did, deceive Plaintiffs into believing that they were purchasing a Lennox Unit, Condenser and Coil Part(s) as listed in the Randalls quote, free from defects.

Lennox undertook active and ongoing steps to conceal the defect. Plaintiff is aware of nothing in Lennox advertising, publicity or marketing materials that disclosed the truth about the defect, despite Lennox’s awareness of the problem.

The facts concealed and/or not disclosed by Lennox to Plaintiff are material facts in that a reasonable person would have considered them important in deciding whether to purchase Lennox units.

Lennox intentionally concealed and/or failed to disclose material factors for the purpose of inducing Plaintiffs to act thereon.

Plaintiffs justifiably acted or relied upon the concealed and/or non-disclosed facts to their detriment, as evidenced by their purchase of Lennox units. Plaintiffs suffered a loss of money because of Lennox’s fraudulent concealment and nondisclosure because they would not have purchased the units on the same terms if the true facts concerning the defective Lennox Units and Coil Part(s)  had been known.

By reason of the foregoing, Plaintiffs suffered, and continue to suffer, financial damage and injury.

Requests for Relief

WHEREFORE, Plaintiffs Mark Burke and Joanna Burke seeks judgment against Defendant as follows:

1. For an order finding in favor of the Plaintiffs on all counts asserted herein;
2. For an order awarding damages in an amount of $20,000 (twenty thousand U.S. dollars);
3. For prejudgment interest on all amounts awarded;
4. For an order of restitution and all other forms of injunctive and/or equitable relief;
5. For an order awarding Plaintiffs fees and expenses associated with the cost of this suit; and
6. For all further relief, as the Court deems appropriate.

RESPECTFULLY submitted this 5th day of October, 2022.

I declare under penalty of perjury that the foregoing  is true and correct (Texas Civil Practice & Remedies Code 132.001).

______________________

Mark Burke / DOB: June 20, 1967
State of Texas / Pro Se

 

46 Kingwood Greens Dr
Kingwood, Texas 77339
Phone Number: (281) 812-9591
Fax: (866) 705-0576
Email: markburkeusa@gmail.com

 

I declare under penalty of perjury that the foregoing  is true and correct (Texas Civil Practice & Remedies Code 132.001).

 

______________________

Joanna Burke / DOB:  Nov 25, 1938
State of Texas / Pro Se

46 Kingwood Greens Dr
Kingwood, Texas 77339
Phone Number: (281) 812-9591
Fax: (866) 705-0576
Email: joanna@2dobermans.com