Kohler loses lawsuits - Boat Smart

Boat/US Magazine, July, 2003 by Caroline Ajootian

Hundreds of owners of boats equipped with older Kohler generators have been at risk of carbon monoxide poisoning due to an exhaust component that can deteriorate in the marine environment, according to court records. Now, after eight deaths, multiple lawsuits involving millions of dollars awarded to victims' families and evidence that for years Kohler was fully aware of the risks involved, the company may finally issue a warning.

Earlier this year, juries in three separate wrongful death lawsuits in St. Louis awarded victims' families more than $25 million following a 1999 boating accident on Lake of the Ozarks in Missouri. Four persons aboard a 1987 Silverton 40 equipped with a Kohler 7.5kw generator were overcome by deadly carbon monoxide (GO).

Investigators found that the generator's exhaust tube, made of black iron, had deteriorated from the inside out. While its outer surface appeared intact, the tube was damaged badly enough to allow exhaust gases to escape into the boat's cabin. The part, a pipe nipple that threads into the exhaust elbow, is used only on Kohler's 7.5kw model, was original to the generator and is located in an area difficult to reach and inspect.

The Missouri deaths were not the first CO poisonings caused by the failure of this part. It was also involved in the deaths of two people in Seattle in 1986 and two others in Texas in 1995. After a lawsuit following the Texas deaths, Kohler issued a service bulletin to dealers, but boat owners weren't warned directly. Manufacturers' service bulletins are usually directed only at dealers and repairs are implemented only when owners complain about the problem outlined in the bulletin. Usually, owners pay for those repairs.

Testimony by a high ranking Kohler employee during the St. Louis trials this year revealed that members of the company's legal, marketing and customer service divisions were well aware of and discussed problems associated with the part as far back as 1985 and 1986. In fact, the company employee testified that while on service inspections throughout the country he observed parts that had failed or were near failure. Black iron is prone to degradation when exposed to saltwater and hot, highly acidic exhaust gases.

When the Kohler 7.5kw generator was introduced in the late 1960s, the specifications called for a brass exhaust tube, costing about $8 more than its black iron counterpart, according to the plaintiff's attorney in the Anderson case. He said the company apparently switched to the cheaper part "for cost cutting reasons," adding that the black iron parts have a 16% to 23% failure rate.

In 1988, possibly because of the Seattle accident, Kohler began installing stainless steel pipes on new generators. But, the black iron part was still offered for sale as a replacement part for 10 more years. In court, the Kohler representative testified that at least 200 had been sold to replace deteriorated parts. Generator owners were not advised of any need to upgrade their exhaust systems when Kohler switched to the improved stainless steel part.

"It's all about money," said Ed Hershewe, the attorney who represented the family of Robert and Lois Anderson of Joplin, MO, owners of the Silverton. The Andersons, along with John C. Hams and Robert Stein, died in the accident.

Hershewe told BoatU.S. that money was also an issue when it came to warning the public. "Kohler didn't send out warnings because they would have to pay for recall repairs," which could amount to thousands of dollars per boat, he said.

Court documents make no mention of the U.S. Coast Guard's recall authority, perhaps reflecting the reality that manufacturers, not the Coast Guard, decide whether to initiate recalls. The result? "The Andersons used the boat, not knowing that the exhaust part was dangerous," Hershewe said. 'There's no way you're going to be able to tell the part is defective without disassembling the whole system," he added.

Even so, because Robert Anderson performed some maintenance himself, the jury hearing the case found that he was 30% responsible for his own death. Apparently, the jury believed that, because he was doing his own work, he should have realized there was a problem.

The Kohler employee testified that Kohler was aware their generator exhaust problems are similar to exhaust system failures involving Onan MCCK generators installed on boats built in the 1970s and 1980s. Testimony in lawsuits against Onan showed that at least nine people died and as many more were badly injured as a result of carbon monoxide poisoning. Onan, like Kohler, took no action nor did they initiate a recall to correct defects in generators already installed on boats. Onan did, however, eventually issue service bulletins and later general public safety statements about carbon monoxide.

Because the affected Kohler generators are well past the federal recall statute, which was only recently extended to 10 years, the U.S. Coast Guard cannot compel the manufacturer to recall the units for inspection and make repairs at no cost to owners. The statute was extended, despite opposition by the marine industry, after a series of highly publicized carbon monoxide poisonings on houseboats.