The suits seek to recover damages caused by the dip tubes and name the dip tube manufacturer and two water heater manufacturers as defendants.
The lawsuits were filed in late January in Kansas and Missouri by the law firm Humphrey, Farrington and McClain in Independence. Defendants named in the suits include Perfection Corp., which made the dip tubes, and Rheem Manufacturing Co. and American Water Heater Co., which bought the tubes and installed them in more than 20 million of their water heaters. A law firm representative told Contractor that the firm planned to add at least two other heater manufacturers to the list of defendants in early March.
Dip tubes are extensions of the cold-water inlet to a water heater. The tubes force cold water to the bottom of a tank to prevent it from contacting hot water already occupying the tank, thus increasing the heater’s efficiency. The problem is the polypropylene dip tubes are reacting with hot water by falling apart. The dip tubes either deteriorate into a white sludge that sticks to the interiors of water heaters and pipes, or break apart into chips that float through plumbing systems and get trapped in dishwasher and clothes washer filters, faucets and showerheads.
The lawsuits allege, among other claims, that the defendants failed to disclose their knowledge of any defects, potential problems or other facts related to the dip tubes, that the eventual failure of the dip tubes is virtually certain and that any problems consumers have encountered because of dip tube problems have been compounded by the defendants’ failure to accept full responsibility for replacing the defective dip tubes.
"Many homeowners out there are not getting complete satisfaction from the water heater companies," said Ralph Phalen, an attorney with Humphrey, Farrington and McClain. "I’m hearing all sorts of stories from clients. The main complaint is that water heater manufacturers are not paying to fix the complete problem. A lot of times they will send a new dip tube but will not pay for a new water heater or pay to clean out a home’s pipes. Some will limit their payouts to $50 or $60. And the only reason some customers have been getting complete satisfaction is because they’re raising a big stink."
Phalen is hoping a judge will certify one of the suits as a national class action. "But I’m not sure if a state judge would deem it a federal class action," he said. "If not, we will file the suit in each state as a class action if we have to.
"The discovery process has not yet begun, no documents have been collected and defendants have not been served yet, but once this case gets going we will take whatever steps are necessary to get this resolved." Phalen added that the lawsuit is not seeking a specific dollar amount because it is too early to determine the extent of any damage.
Water heater manufacturer representatives contacted by Contractor said they were handling each dip tube-related problem individually and were taking care of their customers in whatever way was necessary. New dip tubes or water heaters were supplied and pipes were flushed on a case-by-case basis as long as a licensed plumbing contractor confirmed that a dip tube was the source of the problem and that all the repairs were necessary.
"We believe the approach we have been taking is best," said Herb Foster, director of consumer affairs, Bradford White. "If a consumer has a problem they are instructed to go through their plumbing professional and allow that person to diagnose the problem. And if the problem points to the dip tube, Bradford White will pay for the cost of repairing the problem, within reason, and pass any appropriate costs on to Perfection. If a new heater truly is needed we don’t have a problem with that. But you can’t make a broad brush statement about how to fix this problem because each situation is unique."
Ed O’Connor, vice president/human resources and public affairs for A.O. Smith, would not comment on the lawsuit, but said A.O. Smith was handling dip tube problems in a manner similar to Bradford White’s. A.O. Smith has been treating dip tube problems as warranty situations and instructing customers to work through their contractor.
"I believe we are acting responsibly," O’Connor said. "We are taking care of our customers as best we can and treating each case individually."
The dip tube problem is affecting oil-fueled water heaters as well, said Don Metrish, marketing manager, Weil McLain. The problem is more isolated with Weil-McLain and each problem is handled individually.
"We try our best to take care of our customers," Metrish said. "If there’s work that needs to be done beyond replacing the dip tube we tell the customer to work through our local office and we will do what needs to be done to take care of the problem. Each area of the country is different so problems and prices may differ, and we try our best to service customers’ needs."
Representatives of Rheem and American Water Heater were not available for comment.
Frank Volgstadt, vice president/research, codes and standards, Perfection Corp., would not comment on the lawsuits. He did say that once a dip tube is determined to be the source of a problem, a new dip tube--or water heater if needed--is sent to replace the old item and Perfection has paid for any costs associated with the transactions.
Contractors have had different experiences with water heater manufacturers regarding dip tube problems. A contractor in the Midwest has had pleasant contact with its water heater supplier, a spokeswoman said. "A.O. Smith is taking good care of us and our customers in this situation," said Jennifer Montalvo, a dispatcher with Hutzel Plumbing and Heating in Ann Arbor, Mich. "We even had a situation where a customer had invested hundreds of dollars in faucets, which were damaged because of the dip tube, and A.O. Smith paid to replace them all. We’ve only had to replace one water heater, and they had no problem with doing that. We’ve had to do some backflushing of the pipes and they’ve taken care of that as well."
Calls regarding dip tubes have been coming in at the rate of three to five a day for the past month, Montalvo said. The cost to repair damage has varied from customer to customer, and has reached up to $200 in the most extensive situation, with A.O. Smith paying each time.
On the other hand, John Griffin, service manager, General Utilities, Plainview, N.Y., said he has not been having as much luck with the manufacturers he deals with.
"What one manufacturer came up with was to replace the dip tube and give us a small allowance for labor," Griffin said. "If pushed hard enough they might replace the tank. And even that takes a lot of convincing. I’ve called them and told them we need a new tank because it’s impossible to really clean all the tube grit out of it, and if we don’t put a new tank in the grit problem will pop up again. They said the tube should disintegrate completely and nothing should be left in the tank, meanwhile I’ve got a 2-ft. piece of tube in my hand that I found in the tank.
"As far as any extra plumbing bills are concerned they treat them on a case-by-case basis. And aside from the small labor allowance, they have not paid the full cost of cleaning out any of our customers’ pipes," Griffin said.
"This area is a low-profit market," he explained. "And when we have to absorb $300 for cleaning out someone’s pipes it’s hard, and we’ve lost accounts because we can’t afford do it. When we tell the customers we can’t clean out their pipes because the manufacturer won’t stand behind its product, they tell us that we installed an inferior product at an inflated price. We tell them we’re installing top-of-the-line equipment but they don’t care," he said.
Dip tube lawsuits settled
Dip tubes failing in water heaters