A lawsuit filed in U.S. District Court in Miami says fire suppression sprinkler systems made with “incompatible” plastic and metal pipes are failing in condominiums across the country and an alleged national cover up by some of the manufacturers, suppliers and distributors has endangered lives and property.
Two condo associations in Miami are the lead plaintiffs in the class action lawsuit, which involves chlorinated PVC pipes made with a resin by Wickliffe, Ohio-based Lubrizol Corp. and steel pipes made by Allied Tube & Conduit Corp. that have an interior anti-microbial coating.
Allied was a division of Tyco International Ltd.'s electrical and metal products business segment until it was sold to Atkore International Inc. in 2010 and became a subsidiary of Harvey, Ill.-based Atkore.
The 56-count lawsuit says the Lubrizol resin, which is used by others to make CPVC pipe, develops pin-hole leaks, cracks and blow outs when exposed to basic construction materials, such as Allied's ABF and ABF II steel pipe.
“The defect in the CPVC pipe is in the resin used to create the CPVC pipe,” the lawsuit says. “The resin breaks down when exposed to common construction materials like anti-corrosives, anti-microbials, pesticides, termaticides, joint compound, adhesives, fire retardants and other common construction products. Additionally, when the CPVC pipe is used in conjunction with metallic pipe manufactured by defendant (Allied), the anti-microbial and anti-corrosion used in Allied's metal piping reacts with the CPVC breaking down CPVC pipe's resin causing the CPVC pipes to fail.”
A spokeswoman with Lubrizol said similar allegations lodged in the past have been addressed and the company stands behind its products.
The lawsuit says the incompatible plastic and metal materials cause fire suppression systems to leak and lose pressure, which leads to property damage and life-safety issues. The problem can't be repaired and the CPVC pipes and fittings must be replaced, according to the 246-page lawsuit filed Nov. 16.
The suit alleges negligence, strict liability and civil conspiracy — and for a subclass of Florida plaintiffs, violation of that state's building code and unfair and deceptive trade practices act.
In addition to Lubrizol, Allied, Tyco and Atkore, the list of defendants includes Tyco Fire Products, Lubrizol Advanced Materials Inc. (formerly known as Noveon Inc.), Viking Corp., Supply Network Inc., Victaulic Co., George Fischel Harvel LLC, Nibco Inc., Spears Manufacturing Co., HD Supply Waterworks Group Inc., and HD Supply Waterworks Ltd.
The lawsuit says Lubrizol licenses its trade name of BlazeMaster to companies that use its resin, including Tyco Fire Products, which was in the chain of distribution for both Blazemaster products and ABF pipes; and Viking, Harvel and Nibco, which were in the distribution chain of BlazeMaster CPVC pipes and fittings. Victaulic, Spears and the HD defendants also supplied CPVC pipes and fittings used in the projects.
The allegation of civil conspiracy is made against Allied, Tyco, Tyco Fire, Lubrizol, Lubrizol Corp. and Atkore. The lawsuit says some officials at those companies knew about pipe failures related to their products in May 2007 but didn't public admit it to the construction industry for almost two years.
Julie Young, director of corporate communications for Lubrizol, denied the conspiracy claim and other allegations in a Dec. 14 email.
“Lubrizol has been made aware of a lawsuit wrongly alleging an industry-wide cover-up of defects in the piping systems in two condominium buildings in Florida,” Young said. “Lubrizol is one of many companies from the fire sprinkler industry that are named in the suit. It is the company's policy to not comment on pending litigation. As the litigation process unfolds, Lubrizol will respond to the complaint.
“Lubrizol has not concealed information and denies the allegations in the lawsuit. There is no reason to believe the lawsuit contains any allegations about CPVC that have not been alleged elsewhere, tested, and addressed. The industry has always taken proper steps to ensure safe installation and use of fire sprinkler systems around the world. As a market leader, Lubrizol has always stood behind its products and will put the same attention to this matter.”
Phone calls and emails seeking a response from Atkore weren't returned.
Damages estimate: $1 Billion
The number of national class members is believed to exceed 100 condo associations and building owners who had fire sprinkler systems installed using ABF and ABF II metal pipe in combination with CPVC products from Jan. 1, 2003, through Dec. 31, 2010.
The lawsuit was filed by the law firm of Colson Hicks Edison, including Ervin Gonzalez, a lawyer who sat on plaintiff steering cases for the Deep Horizon BP oil spill and high-sulfur Chinese drywall cases. The firm said in a news release that the problem is nationwide with buildings constructed from 2005-2009 primarily at risk from the hybrid systems of CPVC and metal pipes containing antimicrobial and anti-corrosion chemicals. They said monetary damages arising from the claims will exceed $1 billion.
“Using CPVC pipe for the fire sprinkler systems without testing if it was compatible with commonly used construction products in condominium buildings is reckless and tantamount to saying that it is safe to fly a plane using new/untested parts and without undertaking a pre-flight safety check,” Gonzalez says in a Dec. 4 news release.
“Each condominium building may have to spend in excess of $50 million to repair their systems. And many homeowners will have to find alternative living arrangements while their condominiums are being repaired,” he added. “This mammoth problem exists nationwide, but is heavily concentrated in Florida.”
The lawsuit says “the most egregious part of this case” is that some or all of the defendants allegedly knew of the defects since 2007 from their own testing and deliberately didn't disclose it. The complaint references many Lubrizol reports and emails starting with an in-house chemist testing sections of failed CPVC pipes from fire sprinkler systems in two Pennsylvania condo projects.
A report dated May 3, 2007, says, “The ABF coating manufactured by (Allied) is not compatible with CPVC. BlazeMaster (CPVC piping) should not be connected to steel piping containing this coating as it may flush into the CPVC and cause environmental stress cracking,” according to the lawsuit.
Within 24 hours, the defendants associated with Lubrizol, Allied and Tyco agreed to suppress the incompatibility of their CPVC and steel piping, the lawsuit further alleges. The information was “intentionally withheld” from the industry until January 2009, it also says.
The goal of the lawsuit is to make sure buildings comply with building codes by having properly functioning fire sprinkler, according to the plaintiffs' law firm.
“The question is not whether the CPVC pipe used in combination with the metal pipes will fail; the question is when it will fail,” Gonzalez said. “This can happen at the very worst time — during a fire when the sprinkler system must operate. Needless to say, this is an important fire safety and public safety matter that must be addressed immediately.”
The law firm has offices in Coral Gables, Fla., Washington D.C. and New Orleans.