Wind Condominium v. Allied Tube

Transcription

Case 1:15-cv-24266-XXXX Document 1 Entered on FLSD Docket 11/16/2015 Page 1 of 246
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
CASE NO.
WIND CONDOMINIUM ASSOCIATION,
INC., a Florida condominium association; and,
LATITUDE ON THE RIVER
CONDOMINIUM ASSOCIATION, INC., a
Florida condominium association,
Plaintiffs,
v.
CLASS ACTION
ALLIED TUBE & CONDUIT
CORPORATION, a Delaware corporation;
TYCO INTERNATIONAL PLC, f/k/a TYCO
INTERNATIONAL, LTD., a foreign limited
company; TYCO FIRE PRODUCTS, LP, a
Delaware limited partnership; LUBRIZOL
ADVANCED MATERIALS, INC., f/k/a
NOVEON, INC. a Delaware corporation; THE
LUBRIZOL CORPORATION, an Ohio
corporation; THE VIKING CORPORATION, a
Michigan corporation; SUPPLY NETWORK,
INC., a/k/a VIKING SUPPLYNET, a Michigan
corporation; VICTAULIC COMPANY, a New
Jersey company, GEORG FISCHEL HARVEL
LLC, a Pennsylvania limited liability company;
NIBCO INC., an Indiana corporation; SPEARS
MANUFACTURING CO., a California
corporation; ATKORE INTERNATIONAL,
INC., f/n/a Tyco International Ltd. Electrical &
Metal Products division, a Delaware
corporation; HD SUPPLY WATERWORKS
GROUP, INC., a Delaware company; HD
SUPPLY WATERWORKS, LTD., a Florida
Limited Company;
Defendants.
____________________________________/
CLASS ACTION COMPLAINT AND DEMAND FOR JURY TRIAL
SIEGFRIED, RIVERA, HYMAN, LERNER, DE LA TORRE, MARS & SOBEL, P.A., ATTORNEYS AT LAW
201 ALHAMBRA CIRCLE, ELEVENTH FLOOR, CORAL GABLES, FL 33134-5108 • 305-442-3334 • FAX 305-443-3292
Page 2 of 246
Pursuant to Federal Rule of Civil Procedure 23, S.D. Fla. LR 23.1, Plaintiffs Wind
Condominium Association, Inc., and Latitude on the River Condominium Association, Inc.
individually (collectively “Plaintiffs” or “Class Representatives”), and on behalf of others
similarly situated (“Class Members”), bring this nationwide class action and subclass for Florida
condominium associations and building owners against above-captioned Defendants for claims
of negligence, strict liability, civil conspiracy, and in addition for the Florida subclass, violation
of Florida’s Unfair and Deceptive Trade Practices Act, breach of statutory implied warranties
pursuant to Florida Statutes section 718.203, and violation of Florida’s Building Code, Florida
Statutes section 553.84 for damages and state as follows:
INTRODUCTION
1.
This is a products liability and construction defect class action case concerning
a national cover up over a significant life safety issue in multi-unit condominiums in Florida and
across the country.
2.
Defendants are manufacturers, distributors and suppliers of defective CPVC 1
piping in condominiums and other buildings that supply water for fire suppression sprinkler
systems in numerous condominiums and other buildings across the country. The fire suppression
systems have failed. The failure of these systems may allow fires to burn out of control and
endanger the lives of thousands of people and property.
3.
The most egregious part of this case is that some or all of the Defendants had
knowledge of the defects via their own testing since 2007 and deliberately did not disclose it to
the Class Representatives or Class Members, leading to potential loss of lives, injury and
property damage.
1
Chlorinated polyvinyl chloride.
Page 3 of 246
4.
The defect in the CPVC pipe is in the resin used to create the CPVC pipe. The
resin breaks down when exposed to common construction materials like anti-corrosives, antimicrobials, 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 Tube & Conduit Corporation (“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.
5.
The corrosion and breakdown of the CPVC pipes caused by Allied’s ABF and
ABF II 2 pipe and common construction materials results in pin-hole leaks, cracks and blow-outs
in the CPVC. This process is referred to as “environmental stress cracking” (“ESC”). Simply
put, a leak, crack or blow-out in a CPVC sprinkler system will render the sprinkler system
unable to put out fires in buildings, resulting in potential injuries, loss of life and property
damage. All of which could have been prevented had Defendants revealed the defects to Class
Representatives and timely fixed the defect or adequately warned of the defect.
6.
ABF steel pipes have physically damaged or compromised the CPVC piping,
CPVC fittings and other fire suppression system components, the damage cannot be repaired,
requiring that the CPVC piping, CPVC fittings and other fire suppression system components be
replaced as they will continue to fail over time, resulting in future leaks, damage, and loss of use
as well as presenting a fire hazard.
JURISDICTION, VENUE AND PARTIES
Plaintiffs/Class Representatives
2
Hereinafter, ABF shall mean ABF and ABF II pipe unless otherwise specified.
Page 4 of 246
7.
At all times relevant hereto, Wind Condominium Association, Inc. (“Wind”)
was a not for profit Florida corporation and condominium association organized pursuant to the
provisions of Chapter 718, Florida Statutes and operating in Miami-Dade County, Florida.
8.
Wind is the entity responsible for the management and operation of the Wind
Condominium located at 350 South Miami Avenue, in Miami, Florida, which consists of
approximately 489 Units.
9.
At all times relevant hereto, Latitude on the River Condominium Association,
Inc. (“Latitude”) was a not for profit Florida corporation and condominium association organized
pursuant to the provisions of Chapter 718, Florida Statutes and operating in Miami-Dade County,
Florida.
10.
Latitude is the entity responsible for the management and operation of the
Latitude Condominium located at 185 Southwest 7th Street in Miami, Florida, which consists of
approximately 454 Units.
11.
The Class Representatives bring these actions pursuant to Florida Statutes
section 718.111(3). Under Florida Statute 718.111 (3), the Associations may bring an action in
their own name on behalf of all unit owners concerning matters of common interest unit owners,
including, but not limited to, the common elements of the building or improvements or other
damages that are of common interest to unit owners.
12.
The individual Unit Owners are a real party of interest in the litigation. The
Associations, pursuant to Florida Statutes section 718.111(3) and the Declaration of
Condominium, collectively have a duty to maintain common elements. One of the purposes of
maintaining common elements, such as the Life Safety System (fire sprinkler system), is so that
the common elements do not damage individual unit owners’ property.
Page 5 of 246
13.
Individual Unit Owners own an undivided share of the Life Safety System, a
common element. Damages to other common elements and damages to personal property caused
by the defective ABF pipe and CPVC pipe in the Life Safety System affect all individual Unit
Owners’ property interest.
A defective Life Safety System that damages individual Unit
Owners’ property and common elements is a matter of common interest to all Unit Owners.
14.
The fire system leaks and becomes depressurized due to the defective ABF pipe
and CPVC pipe and fittings, the Life Safety System needs to be replaced to stop or prevent
damages to the Associations’ property and individual Unit Owners’ property and to protect the
life or property of the Associations, its members or individuals at the Projects. Repair to
common elements contained within or adjacent to individual units will not repair the
construction defect.
15.
Individual Unit Owners own an undivided share of the common elements. The
Association is responsible for repairing the common elements and the Units Owners are
responsible in accordance with their ownership share for paying for the repair and replacement of
the Life Safety System, which has in the past or will in the future damage individual Unit
Owners’ property and the common elements.
16.
All Unit Owners have a common interest in the damages to unit owner property
being caused by the Life Safety System because and have a duty to pay for the cost to fix the
Life Safety System and are subject to threatened litigation as a result of the defects in the Life
Safety System.
Defendants
Defendant Allied
Page 6 of 246
17.
At all times relevant hereto, Allied was and is a Delaware corporation organized
and existing under the laws of the state of Delaware.
18.
At all times relevant hereto, Allied, directly and through its agents, engaged in
substantial, continuous, systematic, and non-isolated business activity within the state of Florida.
Allied is registered to do business in the State of Florida. It is subject to personal jurisdiction in
the state of Florida because it regularly conducts business in the state of Florida and committed
the unlawful acts alleged herein nationwide and in the state of Florida.
19.
Allied manufactures and sells to the construction industry steel pipe with an
anti-microbial and anti-corrosion interior coating under the trade name “ABF” and “ABF II.”
The purpose of the coating was to prevent microbes that cause corrosion in the interior of steel
piping. Allied advertised and advised the construction industry that ABF was safe to use with
CPVC.
20.
In 2003 or 2004, Allied, a subsidiary and related company of Tyco, introduced a
new anti-microbial interior coating for its steel piping called ABF, which, Allied has referred to
as its “new ABF” product. It is also defective and incompatible with CPVC.
21.
Allied, at all times material, was a division of Tyco’s Electrical and Metal
Products division or business segment.
The Tyco Defendants
22.
At all times relevant hereto, Tyco International PLC, f/k/a Tyco International
Ltd. (“Tyco”) was a foreign company conducting business in Miami-Dade County, Florida.
23.
At all times relevant hereto, Tyco also did business as Tyco Electrical and Metal
Products, Tyco Fire Suppression & Building Products and Tyco Fire Protection Products,
Defendant Tyco Fire Products, LP, and Defendant Allied Tube & Conduit Corporation.
Page 7 of 246
24.
At all times relevant hereto, Tyco, directly and through its agents, engaged in
It is subject to personal jurisdiction in the state of Florida because it regularly conducts business
in the state of Florida and committed the unlawful acts alleged herein nationwide and in the state
of Florida.
25.
Tyco’s business segments also included Tyco Fire Suppression & Building
Products and Tyco Fire Protection Services which manufactured, distributed, sold or supplied
and is within the distributive chain of ABF products and CPVC products.
26.
Tyco exercised control, did business as and provided corporate services for
itself and the Tyco Defendants and participated in the acts described herein. The Tyco
Defendants have the knowledge or actions imputed to each other, and acted in concert in the
allegations in this Complaint.
27.
At all times relevant hereto, Tyco Fire Products LP (“Tyco Fire”) was a
Delaware company and conducted business in Miami-Dade County, Florida.
28.
At all times relevant hereto, Tyco Fire, directly and through its agents, engaged
in substantial, continuous, systematic, and non-isolated business activity within the state of
Florida. Tyco is registered to do business in the State of Florida. It is subject to personal
jurisdiction in the state of Florida because it regularly conducts business in the state of Florida
and committed the unlawful acts alleged herein nationwide and in the state of Florida.
29.
Tyco Fire at all times material, was a subsidiary or division of Tyco.
30.
Tyco Fire manufactured, designed, distributed, supplied or sold Lubrizol
licensed Blazemaster CPVC pipes and fittings and ABF metal pipes.
Page 8 of 246
31.
At all times relevant hereto, Tyco and Tyco Fire, the “Tyco Defendants”
manufactured, designed, distributed, supplied or sold defective CPVC and metal pipes and were
in the chain of distribution of both ABF steel pipe and Blazemaster CPVC.
32.
The Tyco Defendants are the designers, manufacturers, wholesalers,
distributors, retailers or suppliers and in the distributive chain of the steel piping and fittings used
in the CPVC Life Safety System, which is a component in the Life Safety System of the Project.
33.
The Tyco Defendants are the designers, manufacturers, wholesalers,
distributors, retailers or suppliers and in the distributive chain of Tyco Blazemaster CPVC pipes
and fittings.
34.
The Tyco Defendants holds themselves out in the industry and to the general
public as an entity with specialized knowledge and skill with regard to the design and
manufacture of steel pipes or CPVC to be used in CPVC Life Safety Systems, in projects similar
to the one involved in this dispute.
35.
The Tyco Defendants supplied ABF pipes or Blazemaster CPVC directly for
these Projects.
36.
The Tyco Defendants’ ABF steel pipes are in the Life Safety System in the
Project.
37.
The Tyco Defendants’ Blazemaster CPVC pipes or fittings are in the Life
Safety System in the Project.
Lubrizol Defendants
38.
At all times relevant hereto, Lubrizol Advanced Materials, Inc. f/k/a Noveon,
Inc. (“Lubrizol”) was a Delaware corporation and conducted business in Miami-Dade County,
Florida.
Page 9 of 246
39.
At all times relevant hereto, Lubrizol, directly and through its agents, engaged
Florida. Lubrizol is registered to do business in the State of Florida. It is subject to personal
40.
At all times relevant hereto, Defendant Lubrizol Corporation (“Lubrizol Corp.”)
was an Ohio corporation and conducted business in Miami-Dade County, Florida.
41.
At all times relevant hereto, Lubrizol Corp., directly and through its agents,
engaged in substantial, continuous, systematic, and non-isolated business activity within the state
of Florida. Lubrizol is registered to do business in the State of Florida. It is subject to personal
42.
Lubrizol and Lubrizol Corp., collectively, the Lubrizol Defendants, designed,
manufactured or sold a plastic resin that is used by others to produce CPVC. The Lubrizol
Defendants license their “BlazeMaster” trade name to companies that use Lubrizol’s resin to
make CPVC pipe and fittings for life safety systems.
43.
The Lubrizol Defendants are related companies, have the knowledge or actions
imputed to each other, and acted in concert in the allegations in this Complaint.
Viking Defendants
44.
At all times relevant hereto, Viking Corporation (“Viking”) was a Michigan
corporation and conducted business in the State of Florida.
45.
At all times relevant hereto, Viking, directly and through its agents, engaged in
Page 10 of 246
Viking is registered to do business in the State of Florida. It is subject to personal jurisdiction in
46.
Viking is a designer, manufacturer, wholesaler, distributor, retailer or supplier
and in the distributive chain of the Blazemaster CPVC pipes and fittings used in the CPVC Fire
Suppression (Sprinkler) System, which is a component in the Life Safety System of the Projects.
47.
At all times relevant hereto, Supply Network, Inc. known as Viking SupplyNet
(“Viking SupplyNet”) was a Michigan Corporation, had offices in the state of Florida and
conducted business in the State of Florida.
48.
At all times relevant hereto, Viking SupplyNet, directly and through its agents,
of Florida. Viking SupplyNet is registered to do business in the State of Florida. It is subject to
personal jurisdiction in the state of Florida because it regularly conducts business in the state of
Florida and committed the unlawful acts alleged herein nationwide and in the state of Florida.
49.
Viking SupplyNet is a wholesaler, distributor, retailer or supplier and in the
distributive chain of the Blazemaster CPVC pipes and fittings used in the CPVC Fire
Suppression (Sprinkler) System, which is a component in the Life Safety System of the Projects.
50.
Viking and Viking SupplyNet Blazemaster CPVC pipes or fittings are in the
Life Safety System in the Projects.
51.
Viking supplied its products directly for the Projects.
52.
Viking SupplyNet supplied its products directly for the Projects.
Defendant Victaulic
Page 11 of 246
53.
At all times relevant hereto, Victaulic Company (“Victaulic”) was a New Jersey
company and conducted business in the State of Florida.
54.
At all times relevant hereto, Victaulic, directly and through its agents, engaged
Florida. Victaulic is registered to do business in the State of Florida. It is subject to personal
55.
Victaulic is the designer, manufacturer, wholesaler, distributor, retailer or
supplier and in the distributive chain of the CPVC pipes and fittings used in the CPVC Life
Safety System in the Projects.
56.
Victaulic CPVC, pipes or fittings, are in the Life Safety System in the Projects.
Defendant Georg Fischel Harvel LLC
57.
At all times relevant hereto, Georg Fischel Harvel LLC, (“Harvel”) was a
Pennsylvania company and conducted business in the state of Florida.
58.
At all times relevant hereto, Harvel, directly and through its agents, engaged in
of Florida.
59.
Harvel is the designer, manufacturer, wholesaler, distributor, retailer or supplier
of Blazemster CPVC and in the distributive chain of the CPVC pipes and fittings used in the
CPVC Life Safety System in the Projects.
60.
Harvel CPVC, pipes or fittings, are in the Life Safety System in the Projects.
Page 12 of 246
Defendant Nibco, Inc.
61.
At all times relevant hereto, Nibco, Inc., (“Nibco”) was an Indiana corporation
and conducted business in the state of Florida.
62.
At all times relevant hereto, Nibco, directly and through its agents, engaged in
of Florida.
63.
Nibco is the designer, manufacturer, wholesaler, distributor, retailer or supplier
of Blazemaster CPVC and in the distributive chain of the CPVC pipes and fittings used in the
CPVC Life Safety System in the Projects.
64.
Nibco CPVC, pipes or fittings, are in the Life Safety System in the Projects.
Defendant Spears Manufacturing Co.
65.
At all times relevant hereto, Spears Manufacturing Co., (“Spears”) was a
California corporation and conducted business in the state of Florida.
66.
At all times relevant hereto, Spears, directly and through its agents, engaged in
of Florida.
67.
Spears is the designer, manufacturer, wholesaler, distributor, retailer or supplier
of CPVC and in the distributive chain of the CPVC pipes and fittings used in the CPVC Life
Safety System in the Projects.
Page 13 of 246
68.
Spears CPVC, pipes or fittings, are in the Life Safety System in the Projects.
HD Supply Defendants
69.
At all times relevant hereto, HD Supply Waterworks Group, Inc. (“HD Supply”)
was a Delaware corporation and conducted business in the State of Florida.
70.
At all times relevant hereto, HD Supply, directly and through its agents,
of Florida. HD Supply is registered to do business in the State of Florida. It is subject to personal
71.
At all times relevant hereto, HD Supply Waterworks, Ltd. (“HD Supply
Waterworks”) was a Florida limited company conducting business in the State of Florida. HD
Supply Waterworks’ registered agent is Corporate Creations Network, Inc., 11380 Prosperity
Farms Road, #221E, Palm Beach Gardens, Florida 33410.
72.
HD Supply is a related company to HD Supply Waterworks and exercised
control or the right of control over HD Supply Waterworks.
73.
HD Supply and HD Supply Waterworks were the wholesalers, distributors,
retailer or suppliers and within the distributive chain of the CPVC pipes or fittings contained in
the Life Safety System at the Projects.
74.
HD Supply and HD Supply Waterworks supplied their products directly for the
Projects.
75.
At all times relevant, HD Supply and HD Supply Florida were also doing
business as HD Supply, Inc. or Hughes Supply.
Page 14 of 246
Defendant Atkore & its Relationship with the Tyco Defendants & Allied
76.
At all times Atkore International, Inc. (“Atkore”) formerly known as Tyco
International Ltd. Electrical and Metal Products division, was a foreign corporation and
conducted business in the state of Florida.
77.
In
2010,
Defendant
Tyco
sold
its
Electrical
and
Metal
Products
division/business to Atakore and Atkore assumed a portion of the assets and liabilities of Tyco
and specifically, assumed a portion of the liabilities of the product defect alleged herein.
78.
Atkore’s acquisition of Tyco’s Electrical and Metal Products division included
the ABF steel piping.
79.
At all times relevant hereto, Atkore, directly and through its agents, engaged in
Atkore is registered to do business in the State of Florida. It is subject to personal jurisdiction in
80.
Defendant Allied is a subsidiary of Atkore.
81.
At all times relevant the Defendants acted by and through their employees,
agents, and representatives who were all working within the scope of their employment, agency,
and representative capacity with Defendants and working in furtherance of Defendants’ interests.
82.
All conditions precedent to the bringing of this action have occurred, have been
waived or have been otherwise satisfied.
83.
Plaintiffs have complied with Florida Statutes chapter 558 notice requirements.
Page 15 of 246
84.
The amount in controversy exceeds $5,000,000.00, exclusive of interest and
85.
The putative classes consist of 100 or more condominium associations and
costs.
building owners and thousands of unit owners.
86.
This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1332(d).
87.
Venue is proper within this District because a substantial part of the events
giving rise to the claims occurred and continue to occur in this District.
GENERAL ALLEGATONS
Defective Life Safety System
88.
A hybrid steel pipe and CPVC Life Safety System was designed and installed at
the Class Representatives respective condominiums and other buildings, hereinafter, the
“Projects.”
89.
The Life Safety Systems in the Projects are compromised and need to be
replaced as a result of the defective CPVC and defective ABF steel piping which are
incompatible.
90.
CPVC is chlorinated polyvinyl chloride, a specialty thermoplastic compound
used to produce pipe and related fittings.
91.
Since 1984, the Lubrizol Defendants knew that a variety of chemicals and
construction products adversely affect CPVC piping. For example, petroleum-based cutting oils
(used to cut threads on steel pipe) and some pipe sealants can damage CPVC piping, cause it to
crack and thus cause a Life Safety System to fail.
92.
To keep the construction industry and fire protection industry advised, and to
encourage use of CPVC piping in fire sprinkler systems, the Lubrizol Defendants routinely
Page 16 of 246
circulated a list of specific products to the construction industry that were incompatible or
compatible with CPVC piping/fittings.
93.
Sometime before 2005, the Lubrizol Defendants created and maintained a
website listing known incompatible products and products that had been tested and found to be
incompatible with CPVC (“Compatibility Website”). The Lubrizol Defendants identified these
products by name and manufacturer, and updated the website on an ongoing basis.
94.
The Lubrizol Defendants hold themselves out in the industry and to the general
public as an entity with specialized knowledge and skill with regard to the design and
manufacture of CPVC to be used in life-safety CPVC Life Safety Systems, in projects similar to
the one involved in this dispute
95.
The Lubrizol Defendants also participated in training many contractors in the
proper method of installing CPVC Piping. Part of the training included warnings against using
known incompatible products.
96.
The Lubrizol Defendants intended that the construction industry would refer to,
and rely on, it’s Compatibility Website as a reliable source of information regarding products
known to be compatible or incompatible with CPVC.
Environmental stress cracking (ESC) of CPVC Piping and fittings.
97.
When CPVC is exposed to incompatible products it can develop pin-hole leaks,
cracks and blow-outs. This process is referred to as “environmental stress cracking” (“ESC”).
Because fire sprinkler system pipes are often installed under extreme pressure inside of walls and
ceilings, damage to a building and its contents can be extensive when CPVC Piping fails due to
ESC.
Page 17 of 246
98.
ESC results from the combination of: (a) a CPVC product (pipe or fitting), (b)
the presence of a product that acts over time to disentangle the polymer chains within the CPVC
product, or (c) external stress acting on the pipe or fitting.
99.
The Lubrizol Defendants knew from 1984 that all CPVC Piping is subject to
internal stress caused by the extrusion process employed to manufacture the pipe. It also knew
that CPVC Piping installed in a fire sprinkler system is subject to external stress of varying
degrees. External stress can result from flexion of the pipe, improperly sized or installed pipe
hangers, and adjacent materials or products coming in contact with the CPVC pipe or fittings.
As early as late 2006 / early 2007, Lubrizol Defendants tested and confirmed that CPVC
Piping in hybrid fire suppression/sprinkler systems was failing
100.
In late 2006, the Lubrizol Defendants’ in-house chemist, Michelle Knight,
received sections of failed CPVC Piping from a fire sprinkler system at a project known as
“Palmer’s Mill” located in Marple Township, Pennsylvania. Knight conducted tests on the pipe
to determine the cause of failure. In her report dated January 5, 2007, Knight concluded the
CPVC Piping failed due to ESC caused by the presence of an ethoxylated fatty acid amide oil of
unknown origin. She reported that in addition to the crack causing the leak in question, there was
“severe crazing” on the interior surface of the both the CPVC pipe and fitting. Crazing is a type
of damage caused by the presence of a chemical that is incompatible with CPVC.
101.
In January 2007, Knight received sections of failed CPVC Piping from a project
called the “Mews” in Pennsylvania for testing. In her report dated February 1, 2007, Knight
concluded that the pipe failed due to ESC caused by the presence of a polyethoxylated
alkanolamide surfactant of unknown origin. She noted that the CPVC Piping had numerous
interior fracture initiation sites, cracking and crazing.
Page 18 of 246
As early as April/May 2007, Lubrizol Defendants’ tests concluded and the Lubrizol
Defendants communicated to the Allied Defendants and the Tyco Defendants, that the
ABF II anti-microbial coating in the Tyco Defendants and Allied Defendants’ ABF Steel
Piping was incompatible with the Lubrizol Defendants’ resin and CPVC made therefrom
102.
On April 19, 2007, Knight e-mailed Allied’s sales manager, Robert Bussiere,
reporting that she reviewed the chemical ingredients in Allied ABF Steel Piping and advised him
that,
Unfortunately this [ABF II] appears to be very incompatible with
CPVC. I will go ahead and test the sample which you are sending to
me, but I don’t hold out much hope for it passing [a compatibility
test]. (Emphasis supplied).
103.
Shortly thereafter, Knight received a liquid sample of ABF II from Allied and
conducted testing to determine whether the ABF II was compatible with CPVC Piping. Knight
issued her report on May 3, 2007 concluding that,
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. (Emphasis supplied).
104.
The report was sent to Bussiere and Lubrizol’s manager, including Matthew
Kuwatch.
105.
On May 3, 2007, Lubrizol prepared for publication to the construction industry
Ms. Knight’s conclusion that Allied ABF II is incompatible with Lubrizol’s CPVC.
106.
In the evening on May 3, 2007, Lubrizol’s Kuwatch was scheduled to see
Allied’s Bussiere at the National Fire Safety Association (NFSA) trade association. Prior to, but
also on May 3, an e-mail dialogue within Lubrizol, and between or among Lubrizol, Allied and
Tyco, establishes that the Lubrizol Defendants were prepared to disclose Knight’s
incompatibility findings.
Page 19 of 246
107.
At 1:30 p.m., Kuwatch e-mailed Tom Prymak, a Tyco entity employee and
agent, and Bussiere stating:
Please see the attached lab test completes on the ABF Coating. At
this time since there has been a noted field failure and the analysis of
the material has been completed - [Lubrizol] will construct wording
for the incompatibility section of the chemical compatibility section of
the www.blazemaster.com website. We will pass the wording /
write-up to you for review before placing on the website.
108.
At 1:33 p.m., Kuwatch directed Lubrizol’s Barry Ash to work with
Knight on the wording for the Lubrizol Defendants’ Compatibility Website stating:
Barry- Please work with Michelle on wording to be added to our
website regarding this. We need to asap.
109.
At 1:42 p.m., Lubrizol’s Gary Johnson asked Kuwatch and Knight about issuing
an alert:
Should we consider some kind of special alert? I think this coating is
applied wet and dry’s. It is suppose[d] to be good for 75 flushes.
110.
At 1:43 p.m., Prymak emailed Bussiere communicating that Knight’s
report was problematic stating:
Attached, please find the [Lubrizol] report regarding the Allied ABF
coating. The report concludes that Allied [ABF II] coating is
INCOMPATIBLE with [CPVC] BlazeMaster. This is not good news.
We have contractors who are installing basements in black steel pipe
(that could potentially be Allied’s product), Without a BlazeMaster
listing for exposed TJI joists, this could be a problem in many
areas in which the TJI’s are exposed in the basement areas. The
black steel installation in basements is common.
Also, I am aware that there are other manufacturers who are
applying some type of internal MIC coating or treatment to their
products. By way of copy, Matthew, have you tested any other
products? This may affect far more than just Allied Tube. Tom
(Emphasis supplied). (Capital letters in the original).
Page 20 of 246
111.
In another e-mail, Kuwatch reported that he would see Bussiere “tonight” at
the NFSA, and would discuss with him Knight’s language for the Lubrizol Compatibility
Website and that Allied ABF Steel Piping would be identified, by name, as being incompatible
with CPVC.
112.
At 2:13 p.m. (still on May 3, 2007), Kuwatch sent an e-mail to Bussiere stating:
We have not reviewed others as we were not aware of any problems until now.
Can you provide a list of these manufacturers? We will target the list
immediately. Additionally notification will need to be sent out to the appropriate
people asap. I will be conducting two sessions tomorrow at NFSA on system
compatibility. Certainly- this information needs to be given out at the session.
(Emphasis supplied).
113.
At 3:38 p.m., Lubrizol’s Johnson e-mailed Knight asking “if [the ABF II]
comes[s] off over time (20-30 flushes) can we check the compatibility of that process?” Knight
responded succinctly as follows:
Not compatible. It’s just not compatible. Even little droplets of this
oil flushing into the CPVC will be bad. Much worse than your
average cutting oil. (Emphasis supplied).
114.
At 7:22 p.m. (still on May 3, 2007), Knight proposed a new category of
products (‘corrosion inhibitors’) be added to Lubrizol’s website with the following
Some types of corrosion inhibitors applied as coatings to the interior
of steel sprinkler pipe to prevent MIC [microbial induced corrosion]
may be incompatible with CPVC. If BlazeMaster [CPVC] pipe and
fittings are to be installed with a connection to steel piping, it is
important to confirm the compatibility of any coating on the interior
of the steel, as oils from the coatings may flush into the CPVC
portion of the system and compromise its integrity. (Emphasis
supplied).
Within 24 hours, the Lubrizol Defendants, Allied and the Tyco Defendants conspired and
agreed to suppress the incompatibility between Allied / Tyco ABF Steel Piping and
Lubrizol Defendants’ CPVC
Page 21 of 246
115.
On May 3, 2007, at 5:45 p.m., Allied’s Bussiere e-mailed Lubrizol’s Johnson
asking:
Can you hold your guy [Kuwatch] back from making the incompatibility
statement at the training sessions until our tech guys can review?
116.
The next day, May 4, 2007, Lubrizol’s Johnson and Andy Olah, another
Lubrizol chemist, discussed the incompatibility issue with Bussiere and suggested that Kuwatch
only report at the NFSA sessions that “it has come to our attention that a problem may exist and
we are currently looking into it.”
117.
On the evening of May 3 or 4, 2007, Bussiere met with and urged Kuwatch to
(a) not make a public disclosure of Knight’s test results, (b) not report her finding of
incompatibility to the NSFA attendees, and (c) not list ABF II on Lubrizol’s website as
incompatible with CPVC.
118.
Kuwatch agreed to Bussier’s requests.
119.
In furtherance of the Allied, the Lubrizol Defendants and Tyco Defendants
agreement to intentionally conceal the incompatibility issue, on May 5, 2007, Kuwatch wrote to
Knight and Johnson and stated:
We need not alert folks of this as a problem yet as we need to
conduct further R&D review to prove the package of the ABF creates
incompatibility.
120.
Minutes later, Kuwatch e-mailed Knight, Olah, Johnson and others at Lubrizol,
that:
We are conducting an R&D review with Allied on this matter. No
announcement will be placed on the website or sent out unless
concrete evidence show that there is a problem. Currently there is
none.
Page 22 of 246
121.
Upon information and belief, (a) Knight’s suggested language regarding the
possible incompatibility of anti-MIC coatings with CPVC was posted on Lubrizol’s
compatibility website, for as little as one day, (b) Kuwatch learned of said posting and
immediately ordered the posting be removed, and (c) the posting was removed.
122.
Neither Allied nor Lubrizol made any other public announcement advising the
construction industry of Knight’s incompatibility findings.
123.
After the May 2007 Agreement between Allied, the Tyco Defendants and the
Lubrizol Defendants to not disclose the incompatibility, the Lubrizol Defendants continued to
confirm, but not disclose, incompatibility between Allied ABF Steel Piping with Lubrizol’s
CPVC.
124.
On August 10, 2007, Knight issued another report of tested samples of Allied
ABF Steel Piping. In said report, Knight reported that the CPVC test sample subjected to
the ABF II suffered “severe crazing” within 24 hours. She concluded that the ABF II coating
was,
sufficiently mobile in water to be washed off the pipe. However, its
poor general water-solubility also means that it would be likely to
float on the surface of the water and lodge in pockets further up in
BlazeMaster portions of a combined system. The mobile components
of the anti-MIC coating have been demonstrated to be aggressive
environmental stress cracking agents for CPVC. (Emphasis
supplied).
125.
Neither Knight’s report nor the information within same, was published on
Lubrizol Defendants’ Compatibility Website and was not otherwise disclosed by either Allied,
Tyco Defendants or Lubrizol Defendants to the construction industry.
126.
In September 2007, Allied’s Bussiere suggested to Lubrizol’s Kuwatch that new
tests be conducted and that said test be run for shorter periods of time and with no agitation of
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the water-filled pipe sections. Bussiere’s stated reason for this test methodology was to “better
simulate real world conditions.” Upon information and belief, Bussiere’s real motive was to set
weakened conditions resulting in test results that would allow Lubrizol to report to the public
that Allied’s ABF II was compatible with CPVC.
127.
On September 7, 2007, Knight e-mailed Kuwatch and Olah advising the
following about Allied’s proposed test:
We can certainly do the test as requested, but even if zero [ABF II] comes off,
I’m not sure how this helps us decide whether to make a warning or not. We
know it can come off, and when it does it can be really bad for the cpvc.
(Emphasis supplied).
Contractors begin to question Lubrizol, Allied and the Tyco Defendants about the
compatibility between Allied ABF Steel Piping and Lubrizol’s CPVC
128.
By late 2007, contractors began to ask Lubrizol and Allied whether Allied ABF
Steel Piping could damage CPVC Piping, and CPVC Piping manufacturers informally organized
a “CPVC Summit”, which met on several occasions, to discuss the issue.
129.
On December 13, 2007, the CPVC Summit met at Lubrizol’s headquarters in
Brecksville, Ohio. Representatives from seven CPVC Piping manufacturers attended the
meeting. Nine Lubrizol representatives including Kuwatch, Johnson, Knight, and Olah were
present. The Lubrizol representatives failed to disclose to the attendees that Lubrizol already
tested Allied ABF Steel Piping and repeatedly concluded that it contained an aggressive ESC
agent and should not be used with CPVC Piping.
130.
At Allied and the Tyco Defendants’ request, in March of 2008, Lubrizol
conducted a new test of ABF II’s effects on CPVC, the methodology of which was materially
different from that previously employed by Knight. To wit, instead of applying ABF II from
failed samples of CPVC Piping to CPVC test bars and observing the result, CPVC was simply
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immersed in beakers of water taken from the interior of two small sections of ABF II coated pipe
supplied by Allied.
131.
Doug Wetzig, another Lubrizol chemist, issued a report dated March 25, 2008
concluding that “when tested in this fashion no detrimental effects were observed to the CPVC
test bar.” With Lubrizol’s knowledge, Allied immediately disclosed the results of this test to the
construction industry in press releases and on its website.
132.
Thereafter, Lubrizol’s Johnson wrote to Knight, Olah and others asking if Allied
ABF Piping could now be added to the compatible list of products on Lubrizol’s Compatibility
Website as that would be good for marketing. Knight responded: “With their current
formulation? Not a chance.” (Emphasis supplied).
Throughout 2008 through 2010, testing confirming that the incompatibility between Tyco’s
ABF Steel Piping and CPVC caused failures in CPVC Piping is not disclosed
133.
On January 24, 2008, Knight issued a report on failed CPVC Piping samples
from the Miami Project known as Neo Vertika. Though Knight knew that Allied ABF Steel
Piping was used in Neo Vertika, in her report, she disclosed the presence of an ESC agent, but
without specifically identifying Allied ABF Steel Piping by name or report its presence on the
project. Further, this information was not published on Lubrizol’s Compatibility Website and
was not otherwise disclosed by either Allied or Lubrizol to the construction industry.
134.
In April of 2008, Knight received a failed piece of CPVC Piping from The Lofts
in Wilton Manors, Florida. On April 15, 2008, Knight issued a report finding that the presence of
“an [unnamed] antimicrobial coating” contributed to the failure. Knight knew, but again did not
disclose, that the anti-MIC coating in question came from Allied ABF Steel Piping. Neither
Allied nor Lubrizol disclosed the results of this test to the construction industry.
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135.
In June of 2008, Knight received a failed piece of CPVC Piping from the
Hampton Inn in Westford, Massachusetts. On June 5, 2008, Knight issued a report finding that
the presence of ABF II contributed to the ESC failure. Once again neither Allied nor Lubrizol
disclosed the results of this test to the construction industry.
136.
In September of 2008, Knight received a failed piece of CPVC Piping from
Martin’s Brook in North Reading, Massachusetts. On September 30, 2008, Knight issued a
report finding that the failure resulted from ESC caused in part by “an [unnamed] anti-MIC
coating used in some types of steel sprinkler pipe.” Knight knew, but once again, did not
disclose, that the anti-MIC coating in question came from Allied ABF Steel Piping. Neither
Allied nor Lubrizol disclosed the results of this test to the construction industry.
137.
In September of 2008, Knight received a failed piece of CPVC Piping from
River Shores Regency in West Bend, Wisconsin. On October 3, 2008, Knight issued her report
finding that the failure resulted from ESC caused in part by “an[unnamed] anti-MIC coating.”
Knight knew, but did not disclose, that the anti-MIC coating in question came from Allied ABF
Steel Piping. Neither Allied nor Lubrizol disclosed the results of this test to the construction
industry.
138.
On December 18, 2008, Lubrizol employee, Barry Just, wrote to Knight asking,
“Was a bent bar [compatibility] test ever done on Allied’s ABF? If so, did it pass?” Knight
responded with a one-word email, stating: “Failed.” (Emphasis supplied).
139.
In June of 2009, Harvel Plastics, a CPVC Piping manufacturer, submitted a
piece of failed CPVC to Knight from a project called “Stone Farm” to determine the cause of the
failure. Knight concluded that an unnamed anti-MIC coating contributed to the ESC failure.
Knight knew, but did not disclose, that the anti-MIC coating in question came from Allied ABF
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Steel Piping. Neither Allied nor Lubrizol disclosed the results of this test to the construction
industry.
140.
In September of 2010, Viking, a CPVC Piping manufacturer and seller, and a
defendant in this case, submitted a piece of failed CPVC Piping to Knight from an unnamed
project to determine the cause of the failure. On September 20, 2010, Knight issued a report
observing the presence of crazing in addition to the crack and concluded that the presence of
ABF II contributed to the ESC failure. Neither Allied nor Lubrizol disclosed the results of this
test to the construction industry.
141.
In September of 2010, Viking also submitted a failed piece of CPVC Piping
from Creighton University Medical Center in Omaha, Nebraska to Knight to determine the cause
of the failure. Knight concluded that a chemical that was a reasonable match for ABF II
contributed to the ESC failure. Neither Allied nor Lubrizol disclosed the results of this test
to the construction industry.
142.
Knight acknowledged that ABF II had never passed any tests. In fact, it is the
only anti- MIC (“microbial induced corrosion”) coating to fail consistently for 2 years.
143.
Upon information and belief, the Tyco Defendants intentionally withheld
knowledge that its ABF Steel Piping was incompatible with CPVC from the construction
industry because the Tyco Defendants did not want to admit responsibility for losses suffered to
date and in the future, many of which would be in the multiple millions of dollars. Furthermore,
the Tyco Defendants were working on developing a steel pipe coating that would be compatible
with CPVC and did not want to lose market share to other coated steel pipe manufacturers before
that product was available. The Tyco Defendants would have sustained losses from both their
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ABF products and CPVC products from past construction, current construction and loss of future
market share.
144.
Upon information and belief, the Lubrizol Defendants intentionally withheld
knowledge that ABF Steel Piping was incompatible with Lubrizol’s resin used to make CPVC
from the construction industry because the Lubrizol Defendants did not want to admit
responsibility for losses suffered to date and in the future, many of which would be in the
multiple millions of dollars.
145.
The Tyco Defendants and the Lubrizol Defendants knew that hybrid fire
suppression systems incorporating ABF II pipe were being installed on an ongoing basis
throughout the United States, that many would be adversely affected by ESC damage, and that
the construction industry looked to and relied on Lubrizol Defendants’ Compatibility Website as
an authoritative source of information for products that were compatible or incompatible with
CPVC.
146.
The Lubrizol Defendants in January 2009 belatedly admitted that Allied steel
pipe coated with ABF II is not compatible with CPVC and recommends that Allied steel pipe
coated with ABF II not be used in Blazemaster CPVC systems.
The Tyco Defendants and Lubrizol Defendants’ Illegal Acts
147.
The Tyco Defendants and the Lubrizol Defendants unfairly, deceptively and
unlawfully agreed to hide the incompatibility between ABF steel pipe and CPVC.
148.
The Tyco Defendants and the Lubrizol Defendants’ acts and agreements
constitute a conspiracy to commit a tortious act for which they are all jointly and severally liable.
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149.
The Tyco Defendants and the Lubrizol Defendants’ acts and agreements
constitute concerted action in committing a tortious act for which they are all jointly and
severally liable.
150.
It was reasonably foreseeable that ABF or CPVC Life Safety System products
and or components manufactured and placed in the stream of commerce or manufactured,
distributed, fabricated, sold or delivered to these Projects by Allied, the Tyco Defendants, the
Lubrizol Defendants, Viking, Viking SupplyNet, Victaulic, Harvel, Nibco, Spears, HD Supply,
HD Supply Florida and Atkore for use in a CPVC Life Safety System, would come into contact
with other products and or components used in connection with a CPVC Fire Life Safety System.
151.
All defendants knew or should have known that in the absence of proper
warnings to companies or professionals in the construction business, including workers or
subcontractors who installed CPVC pipe or workers who installed metal pipe, such workers
would not know of the incompatibility of pipe being installed on the project.
152.
Despite the Tyco Defendants and the Lubrizol Defendants’ actual knowledge of
incompatibility between Allied ABF and CPVC and the inherent danger of using the products
together, all Defendants breached their duty to warn and intentionally withheld warnings.
153.
The Life Safety Systems with ABF and CPVC are inherently dangerous as a
result of the incompatibility between ABF and CPVC.
154.
The Tyco Defendants and Lubrizol Defendants actions’ constitute intentional
misconduct and gross negligence.
155.
The Lubrizol Defendants have publicly admitted that steel pipe coated with
ABF II should not be used in BlazeMaster CPVC systems.
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156.
The CPVC pipes and fittings in the Project must be removed and replaced due
to the incompatibility between the ABF steel pipes and CPVC in the Life Safety System. Future
leaks, failures and damages will be occurring in the CPVC Life Safety System, which is a life
safety component of the Project and therefore must be removed and replaced and remediated.
Incompatibility between the CPVC piping, CPVC fittings and other Life Safety System
components and the steel pipes poses a significant risk to the safety of persons and property at
the Project and may compromise the integrity of the life-safety system in the event of a failure
during an emergency
157.
Damages caused now and in the future by the incompatibility between the ABF
steel pipes and CPVC and compromised Life Safety System include damages to property other
than the steel pipe (including the CPVC pipe) including, but not limited to, common areas and
elements, limited common elements and the individual residential units and the drywall, finishes,
fixtures, equipment, furniture, furnishings contained therein, and personal property belonging to
and placed in the interior of their units by owners after they purchased their condominium units.
158.
Damages include all costs to repair and replace the Life Safety System,
including costs to relocated owners or residents while there is repair and replacement of the Life
Safety System and consequential damages.
159.
Plaintiffs have incurred engineering fees, construction supervisory fees and
attorneys’ fees in connection with the foregoing.
160.
As a result of Defendants’ conduct in this matter, the Class Representatives
were required to retain, and will be required to pay, for the services of undersigned counsel and
their firms.
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161.
Damages include punitive damages as a result of the Defendants’ conduct and
actions.
CLASS ACTION ALLEGATIONS
Plaintiffs’ Class and Florida Subclass
162.
Under Rules 23(a), (b)(2), and (b)(3) of the Federal Rules of Civil Procedure,
Plaintiffs bring this action on behalf of themselves a Class and Florida Subclass initially defined
as follows:
NATIONAL CLASS: All Condominium Associations and
building owners who had ABF and/or ABF II metal piping
installed in their building in combination with Blazemaster CPVC
or other CPVC products for the fire sprinkler system from January
1, 2003 through December 31, 2010.
FLORIDA SUBCLASS: All Condominium Associations and
building owners with buildings in the state of Florida who had
ABF and/or ABF II metal piping installed in their building in
combination with Blazemaster CPVC or other CPVC products for
the fire sprinkler system from January 1, 2003 through December
31, 2010.
Excluded from the Classes are Defendants ALLIED TUBE & CONDUIT CORPORATION,
TYCO INTERNATIONAL PLC, f/k/a TYCO INTERNATIONAL, LTD., TYCO FIRE
PRODUCTS, LP, LUBRIZOL ADVANCED MATERIALS, INC., f/k/a NOVEON, INC., THE
LUBRIZOL CORPORATION, THE VIKING CORPORATION, SUPPLY NETWORK, INC.,
a/k/a VIKING SUPPLYNET, VICTAULIC COMPANY, GEORG FISCHEL HARVEL LLC,
NIBCO, INC., SPEARS MANUFACTURING CO., ATKORE INTERNATIONAL, INC., f/k/a
Tyco International Ltd. Electrical & Metal Products division, HD SUPPLY WATERWORKS
GROUP, INC., and HD SUPPLY WATERWORKS, LTD., and their employees, officers,
directors, legal representatives, successors and wholly or partly owned subsidiaries or affiliated
companies; class counsel and their employees.
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Ascertainability
163.
The Class is readily identified via visual inspection of the projects, invoices and
receipts and for the products both in Plaintiffs and Defendants’ possession, custody or control in
the usual course and scope of their business.
Numerosity
164.
Upon information and belief, the class exceeds 100 members; therefore, the
number of Class Members is great enough that joinder is impracticable.
Typicality
165.
Plaintiffs’ claims are typical of the claims of the Class, as Plaintiffs and Class
Members alike were victims of Defendants’ common course of conduct, to wit: a) the
manufacture and distribution of defective ABF pipe; b) the manufacture and distribution of
defective Blazemaster CPVC pipe or other CPVC; c) the cover up of the defects as detailed
herein.
Adequacy of Representation
166.
Plaintiffs will fairly and adequately protect the Classes’ interests and have
retained counsel competent and experienced in class-action litigation. Plaintiffs’ interests are
coincident with, and not antagonistic to absent Class Members’ interests because by proving
their individual claims they will necessarily prove the liability of all Defendants to the Plaintiff
Classes. Plaintiffs are also cognizant of, and determined to, faithfully discharge their fiduciary
duties to the absent Class Members as the Class representatives.
167.
Plaintiffs’ counsel have substantial experience in prosecuting class actions.
Plaintiffs and counsel are committed to vigorously prosecuting this action, have the financial
resources to do so, and do not have any interests adverse to the Classes.
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Commonality and Predominance
168.
There are numerous questions of law and fact the answers to which are common
to each Class and predominate over questions affecting only individual Members, including the
following:
a)
whether the microbial in Allied Pipe’s ABF metal piping
deteriorates the resin in the CPVC pipes to produce Environmental
Stress Cracking, “ESC;
b)
whether the microbial in Allied Pipe’s ABF metal piping
deteriorates the resin in the CPVC pipes to produce Environmental
Stress Cracking, “ESC”;
c)
whether Defendants knew or should have known that the microbial
in Allied Pipe’s ABF metal piping deteriorates the resin in the
CPVC pipes to produce ESC;
d)
whether Defendants failed to warn that the microbial in Allied
Pipe’s ABF metal piping deteriorates the resin in the CPVC pipes
to produce “ESC;”
e)
whether Defendants’ CPVC pipes’ resin breaks down when
exposed to common construction materials like pesticides, joint
compound, adhesives and fire retardants;
f)
whether Defendants failed to warn that CPVC resin breaks down
when exposed to common construction materials like pesticides,
joint compound, adhesives and fire retardants;
g)
whether Defendants knew or should have known that CPVC resin
breaks down when exposed to common construction materials like
pesticides, joint compound, adhesives and fire retardants;
h)
whether Defendants negligently failed to disclose that CPVC pipes
break down when exposed to common construction materials like
pesticides, joint compound, adhesives and fire retardants;
i)
whether Defendants intentionally failed to disclose that CPVC
pipes break down when exposed to common construction materials
like pesticides, joint compound, adhesives and fire retardants;
j)
whether Defendants negligently failed to disclose that the
microbial in Allied Pipe’s ABF metal piping deteriorates the
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CPVC pipes to produce ESC;
k)
whether Defendants intentionally failed to disclose that the
microbial in Allied Pipe’s ABF metal piping deteriorates the
CPVC pipes’ resin to produce ESC;
l)
whether Defendants’ CPVC pipes contain a manufacturing defect;
m)
whether Defendants’ CPVC pipes contain a design defect;
n)
whether ABF metal pipe contains a manufacturing defect;
o)
whether ABF metal pipe contains a design defect;
p)
whether certain Defendants conspired to hide information from
Plaintiffs and Class Members that CPVC pipes were defective in
combination with ABF metal piping;
q)
whether certain Defendants conspired to hide information from
Plaintiffs and Class Members that CPVC pipes were defective in
combination
with when exposed to common construction
materials like pesticides, joint compound, adhesives and fire
retardants;
r)
whether Defendants breached their warranties;
s)
whether Defendants’ actions were unfair or deceptive;
t)
whether Defendants’ products violate the Florida Building Code;
u)
whether Defendants’ conduct was “unfair,” “deceptive” or
“unconscionable” under the Florida’s Deceptive and Unfair Trade
Practices Act; and,
v)
whether Defendants’ conduct injured Class Representatives and
Class Members and, if so, the extent of the damages.
Superiority and Manageability
169.
A class action is superior to other available methods for the fair and efficient
adjudication of this controversy since joinder of all the individual Class Members is
impracticable. Additionally, the expense and burden of individual litigation would make it very
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difficult or impossible for individual Class Members to redress the wrongs done to each of them
individually, and the burden imposed on the judicial system would be enormous.
170.
The prosecution of separate actions by the individual Class Members would also
create a risk of inconsistent or varying adjudications for individual Class Members, which could
also establish incompatible standards of conduct for the Defendants. The conduct of this action
as a class action presents far fewer management difficulties, conserves judicial resources and the
parties’ resources, and protects the rights of each Class Member.
171.
For ease of reference, Plaintiffs have provided a chart of claims and counts
made in this case as Schedule “A,” attached hereto.
COUNT 1
NEGLIGENCE AS TO ALLIED
172.
All Plaintiffs adopt and restate paragraphs 1-21, 76-146, 150-151, 153 and 156-
171 as if fully set forth herein.
173.
Defendant owed a duty to Plaintiffs to exercise reasonable care to manufacture,
design, test, inspect, market, distribute and sell its Allied ABF steel pipe and its constituent parts
properly, and to adequately warn of its failure to do the same. Allied’s duty included, but was
not limited to the following:
a) properly designing its ABF steel pipes so that the ABF pipes were compatible
with Blazemaster CPVC pipes so as not to cause ESC in fire suppression
systems;
b) properly manufacturing its ABF steel pipes so that the ABF pipes were
compatible with Blazemaster CPVC pipes so as not to cause ESC in fire
suppression systems;
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c) properly inspecting its ABF steel pipes so that the ABF pipes were compatible
systems;
d) properly testing its ABF steel pipes so that the ABF pipes were compatible with
Blazemaster CPVC pipes so as not to cause ESC in fire suppression systems;
e) properly marketing its ABF steel pipes so that the ABF pipes were compatible
systems;
f) adequately warning that its ABF steel pipes were incompatible with
Blazemaster CPVC pipes and caused ESC in fire suppression systems;
g) properly designing its ABF steel pipes with an antimicrobial that was
h) properly manufacturing its ABF steel pipes with an antimicrobial that was
i) properly inspecting its ABF steel pipes to determine if the antimicrobial was
j) properly testing its ABF steel pipes to determine if the antimicrobial was
incompatible with Blazemaster CPVC pipes so as not to cause ESC in fire
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k) adequately warning that its ABF steel pipes contained an antimicrobial that was
incompatible with Blazemaster CPVC pipes and caused ESC in fire suppression
systems;
l) using reasonable care in the distribution of ABF steel pipes to prevent it from
containing defects;
m) using reasonable care in the sale of ABF steep pipes to prevent it from
containing defects;
n) using reasonable care in the supplying of the ABF steel pipes to prevent it from
containing defects;
o) adequately instructing Plaintiffs and Class Members of the defects associated
with ABF steel pipes;
p) properly selecting the antimicrobial to be compatible with Blazemaster CPVC
pipes;
q) recalling or otherwise notifying users at the earliest date that it became known
that the ABF was defective;
r) marketing, advertising and recommending use of the ABF steel piping with
without sufficient knowledge as to its manufacturing and design defect and
dangerous propensities;
s) not misrepresenting that the ABF steel pipe was safe for its intended purpose
when, in fact, it was not;
t) disclosing that ABF steel pipe was incompatible with Blazemaster CPVC pipe;
u) not manufacturing ABF steel pipe in a manner which was dangerous to its
intended and foreseeable users;
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v) not designing ABF steel pipe in a manner which was dangerous to its intended
and foreseeable users;
w) not distributing, delivering, and/or supplying ABF steel pipe in a manner which
was dangerous to its intended and foreseeable users;
x) not concealing information from Plaintiffs and Class Members regarding reports
of ABF steel pipe’s adverse effects on fire suppression systems;
y) not concealing or misrepresenting information from Plaintiffs and Class
Members and/or the public, concerning the severity of risks and dangers of ABF
steel pipe when combined with Blazemaster CPVC pipe for fire suppression
systems; and,
z) otherwise exercising reasonable care in the design, manufacturing, testing,
inspection, marketing, selling and distribution of ABF in conjunction with
Blazemaster CPVC pipes so as not to cause ESC in fire suppression systems.
174.
Defendant breached its duty to Plaintiffs to exercise reasonable care in the
manufacturing, designing, testing, inspecting, marketing, distributing and sales of its Allied ABF
steel pipe and its constituent parts properly, and to adequately warn of its failure to do the same.
Allied’s breaches of its duty included, but was not limited to the following:
a) failing to properly design its ABF steel pipes so that the ABF pipes were
b) failing to properly manufacture its ABF steel pipes so that the ABF pipes were
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c) failing to properly inspect its ABF steel pipes so that the ABF pipes were
d) failing to properly test its ABF steel pipes so that the ABF pipes were
e) failing to properly market its ABF steel pipes so that the ABF pipes were
f) failing to adequately warn that its ABF steel pipes were incompatible with
g) failing to properly design its ABF steel pipes with an antimicrobial that was
h) failing to properly manufacture its ABF steel pipes with an antimicrobial that
was compatible with Blazemaster CPVC pipes so as not to cause ESC in fire
i) failing to properly inspect its ABF steel pipes to determine if the antimicrobial
j) failing to properly test its ABF steel pipes to determine if the antimicrobial was
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k) failing to adequately warn that its ABF steel pipes contained an antimicrobial
that was incompatible with Blazemaster CPVC pipes and caused ESC in fire
l) failing to use reasonable care in the distribution of ABF steel pipes to prevent it
from containing defects;
m) failing to use reasonable care in the sale of ABF steep pipes to prevent it from
containing defects;
n) failing to use reasonable care in the supplying of the ABF steel pipes to prevent
it from containing defects;
o) failing to adequately instruct Plaintiff and Class Members of the defects
associated with ABF steel pipes;
p) failing to properly select the antimicrobial to be compatible with Blazemaster
CPVC pipes;
q) failing to recall or otherwise notify users at the earliest date that it became
known that the ABF was defective;
s) misrepresenting that ABF steel pipe was safe for its intended purpose when, in
fact, it was not;
t) failing to disclose that ABF steel pipe was incompatible with Blazemaster
CPVC pipe;
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u) manufacturing ABF steel pipe in a manner which was dangerous to its intended
v) designing ABF steel pipe in a manner which was dangerous to its intended and
foreseeable users;
w) distributing, delivering, and/or supplying ABF steel pipe in a manner which was
dangerous to its intended and foreseeable users;
x) concealing information from Plaintiffs and Class Members regarding reports of
ABF steel pipe’s adverse effects on fire suppression systems;
y) concealing or misrepresenting information from Plaintiffs and Class Members
and/or the public, concerning the severity of risks and dangers of ABF steel pipe
when combined with Blazemaster CPVC pipe for fire suppression systems; and,
z) otherwise failing to exercise reasonable care in the design, manufacturing,
testing, inspection, marketing, selling and distribution of ABF in conjunction
systems.
175.
Defendant knew or should have known that its wrongful acts and omissions
would result in damages to Plaintiff and Class Members in the manner set forth herein.
176.
As a direct and proximate cause of Defendant’s acts and omissions, Plaintiffs
and Class Members have incurred economic damages and are entitled to recover monetary
damages for: replacement/repair of fire suppression systems; repair replacement of any real
property, materials or fixtures damaged as result of the defect; the replacement of damaged Other
Property (personal property, furnishings, electronic appliances and household items) as a result
of the defect.
Page 41 of 246
177.
and Class Members have incurred or will incur incidental and consequential damages for the
costs of moving while their buildings are being repaired; renting of comparable housing during
the duration of the repairs; the cost of repair or replacement of the homes; the loss of use and
enjoyment of real property; the loss in value of the home due to the stigma attached to having
defective ABF steel pipe in the building; permanent diminution in value of the home; and other
related expenses.
WHEREFORE Plaintiffs, on behalf of all others similarly situated and the Class Members, demand:
a) an order certifying the case as a class action;
b) an order appointing Plaintiffs as the Class Representatives of the Class;
c) an order appointing undersigned counsel and their firms as counsel for the Class;
d) compensatory damages;
e) incidental damages;
f) consequential damages;
g) post-judgment interest;
h) an award of attorneys’ fees to class counsel based upon a common fund theory
as allowed by Federal law, for the benefits conferred upon the Class and/or as
allowed by contract or statute;
i) an award of taxable costs; and,
j) any and all such further relief as this Court deems just and proper.
COUNT 2
STRICT LIABILITY AS TO ALLIED
178.
All Plaintiffs adopt and restate paragraphs1-21, 76-146, 150-151, 153 and 156-
Page 42 of 246
179.
At all times relevant hereto, Defendant was in the business of designing,
manufacturing, distributing, selling, delivering, supplying, inspecting, marketing, and/or selling
ABF steel pipe for sale to the general public.
180.
The ABF steel pipe, including that installed in Plaintiffs and Class Members
were placed by Defendant in the stream of commerce.
181.
Defendant knew that the subject ABF steel pipe would be used without
inspection for defects by consumers.
182.
Defendant intended that the ABF steel pipe reach the ultimate consumer, such
as Plaintiffs and Class Members, and it indeed reached Plaintiffs and Class Members when it was
installed in their buildings.
183.
When installed in the Plaintiffs and Class Members’ buildings, the ABF steel
pipe was in substantially the same condition it was when Defendants manufactured, sold, and/or
delivered it.
184.
At all times relevant hereto the subject ABF steel pipe was used in a manner
consistent with the uses intended by, or known to Defendant, and in accordance with the
Defendant’s directions and instructions.
185.
The subject ABF steel pipe was not misused or altered by any third parties,
Plaintiffs or Class Members.
186.
The ABF steel pipe was defectively manufactured, designed, inspected, tested,
marketed, distributed, and sold.
187.
The design defect was in designing the ABF steel pipe with an antimicrobial
incompatible with and that breaks down the resin in Blazemaster CPVC pipes causing ESC in
the CPVC pipes that cause Plaintiffs’ fire suppression systems to leak, lose pressure and cause
Page 43 of 246
property damage and create a life-safety issue because the fire suppression system will not work
properly.
188.
The manufacturing defect in the ABF steel pipe was in improperly selecting,
testing, inspecting, assembling, and using an antimicrobial incompatible with and that breaks
down the resin in Blazemaster CPVC pipes causing ESC in the Blazemaster CPVC pipes that
cause Plaintiffs’ fire suppression systems to leak, lose pressure, cause property damage and
create a life-safety issue because the fire suppression system will not work properly.
189.
The ABF steel pipe was also defective because it was improperly distributed,
delivered, supplied, inspected, marketed, and/or sold in a defective condition, as described
above.
190.
The defective manufacturing, designing, inspecting, testing, marketing,
distributing, and selling of the ABF steel pipe rendered it unsafe and unreasonably dangerous for
its intended use and to the Plaintiffs and Class Members.
191.
The ABF steel pipe is also defective and unreasonably dangerous because
Defendants failed to adequately warn and instruct the Plaintiffs and Class Members of the
defective design, inspection, testing, manufacturing, marketing, and selling of the ABF steel
pipe.
192.
Plaintiffs and Class Members were unaware of the unreasonably dangerous
propensities and defective condition of the ABF steel pipe, nor could Plaintiffs and Class
Members, acting as a reasonably prudent people discover that Defendant’s ABF steel pipe was
defective, as set forth herein, or perceive its danger.
193.
Defendant’s ABF steel pipe was much more dangerous and harmful than
expected by the average consumer and by Plaintiffs and Class Members.
Page 44 of 246
194.
Defendant’s ABF steel pipe benefit to Plaintiffs and Class Members, if any, was
greatly outweighed by the risk of harm and danger to them.
195.
The defects ABF steel pipe, as well as Defendant’s failure to adequately warn
the Plaintiffs and Class Members of the defects rendered the ABF steel pipe unreasonably
dangerous and was the direct and proximate cause of damages to Plaintiffs and Class Members.
196.
of the defect.
197.
related expenses.
Page 45 of 246
COUNT 3
FLORIDA DECEPTIVE AND UNFAIR PRACTICES ACT “FDUTPA” AS TO ALLIED
ON BEHALF OF FLORIDA SUBCLASS, ONLY
198.
199.
This is an action for relief under section 501.201, et.seq., Florida Statutes (The
Florida Deceptive and Unfair Trade Practices Act).
200.
Section 501.203(7), Florida Statutes defines "Consumer" as "an individual;
child, by and through its parent or legal guardian; firm; association; joint venture; partnership;
estate; trust; business trust; syndicate; fiduciary; corporation; or any other group or
combination." Plaintiffs and Class Members are "Consumers" within the meaning of
§501.203(7), Florida Statutes.
201.
Section 501.203(8), Florida Statutes defines "Trade or Commerce" as:
[T]he advertising, soliciting, providing, offering, or distributing,
whether by sale, rental, or otherwise, of any good or service, or any
property, whether tangible or intangible, or any other article,
commodity, or thing of value, wherever situated. "Trade or
Commerce" shall include the conduct of any trade or commerce,
Page 46 of 246
however denominated, including any nonprofit or not-for-profit
person or activity.
The advertising, soliciting, providing, offering, or distributing of ABF steel pipe by Defendant to
Plaintiffs and Class Members is "Trade or Commerce" within the meaning of section 501.203(8),
Florida Statutes.
202.
Section 501.204(1) provides that: "[u]nfair methods of competition,
unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any
trade or commerce are hereby declared unlawful." Allied’s acts and omissions as well as their
failure to use reasonable care in this matter as alleged in this Complaint equals unconscionable
acts or practices, as well as deceptive and unfair acts or practices in the conduct of Allied’s trade
or commerce pursuant to section 501.204, Florida Statutes.
203.
The unconscionable, illegal, unfair and deceptive acts and practices of Allied
violate FDUTPA. Plaintiffs and Class Members have suffered actual damage for which they are
entitled to relief pursuant to section 501.211(2), Florida Statutes.
204.
Plaintiffs and Class Members are entitled to recover their reasonable attorneys’
fees pursuant to section 501.2105, Florida Statutes upon prevailing in this matter.
205.
As a direct and proximate cause of the Defendant’s acts and omissions,
Plaintiffs and Class Members have incurred economic damages and are entitled to recover
monetary damages for the replacement value of the fire suppression system in their building.
WHEREFORE Plaintiffs, on behalf of all others similarly situated and the Class, demand:
a. an order certifying the case as a class action;
b. an order appointing Plaintiffs as the Class Representatives of the Class;
c. an order appointing undersigned counsel and their firms as counsel for the Class;
d. actual damages;
Page 47 of 246
e. post-judgment interest;
f. an award of attorneys’ fees pursuant to class counsel based upon section
501.2105, Florida Statutes upon prevailing in this matter;
g. an award of attorneys’ fees on a common fund theory as allowed by Federal
law, for the benefits conferred upon the Class and/or as allowed by contract or
statute;
h. an award of taxable costs; and,
i. any and all such further relief as this Court deems just and proper.
COUNT 4
BREACH OF STATUTORY WARRANTY AS TO ALLED
206.
207.
Allied is a supplier of ABF steel pipes.
208.
Pursuant to Florida Statutes section 718.203(2), Allied is deemed to have
granted Plaintiffs and Class Members an implied warranty of fitness as to the material it supplied
as follows:
a. For a period of 3 years from the date of completion of construction of a
building or improvement, a warranty as to the roof and structural components
of the building or improvement and mechanical and plumbing elements
serving a building or an improvement, except mechanical elements serving
only one unit.
b. For a period of 1 year after completion of all construction, a warranty as to all
other improvements and materials.
209.
The subject fire suppression system is a mechanical element that serves all units
and common areas.
Page 48 of 246
210.
“Completion of a building or improvement” means issuance of a certificate of
occupancy for the entire building or improvement, or the equivalent authorization issued by the
governmental body having jurisdiction, and in jurisdictions where no certificate of occupancy or
equivalent authorization is issued, it means substantial completion of construction, finishing, and
equipping of the building or improvement according to the plans and specifications.
211.
At all times relevant hereto, routine maintenance was performed by Plaintiffs
and Class Members.
212.
Defendant breached its warranty of fitness because the ABF steel pipes it
supplied are defective in that they contain an antimicrobial that breaks down the resin in
Blazemaster CPVC pipes causing ESC in the Blazemaster CPVC pipes, which causes Plaintiffs’
fire suppression systems to leak, lose pressure and cause property damage and create a life-safety
issue because the fire suppression system will not work properly.
213.
supplied have a manufacturing defect due to Defendant improperly selecting, testing, inspecting,
assembling, and using an antimicrobial incompatible with and that breaks down the resin in
Blazemaster CPVC pipes causing ESC in the Blazemaster CPVC pipes that cause Plaintiffs’ fire
suppression systems to leak, lose pressure, cause property damage and create a life-safety issue
because the fire suppression system will not work properly.
214.
Page 49 of 246
of the defect.
215.
related expenses.
216.
Defendant knew or should have known that their wrongful acts and omissions
would result in economic, incidental, and consequential damages in the manner set forth herein.
Page 50 of 246
COUNT 5
VIOLATION OF FLORIDA BUILDING CODE, FLA. STAT. § 553.84 ET SEQ. AS TO
ALLIED ON BEHALF OF FLORIDA SUBCLASS, ONLY
217.
All Plaintiffs adopt and restate paragraphs1-21, 76-146, 150-151, 153 and 156-
218.
This is an action pursuant to Florida Statutes section 553.84 which provides a
cause of action for any individual or class of persons or parties damaged from a violation of ch.
553 of the Florida Statutes or the Florida Building Code.
219.
Defendant has a duty to supply materials that are compliant with the Florida
Building Code and Florida’s Fire Prevention code.
220.
Defendant has breached its duty of complying with the above referenced
sections of the Florida Building Code and Florida Fire Prevention Code by supplying ABF steel
pipe containing an antimicrobial that was incompatible with Blazemaster CPVC pipes and
caused ESC on the Blazemaster pipes, causing Plaintiffs and Class Members fire suppression
systems to fail.
221.
Defendant knew or should have known that it violated the Florida Building
Code and Florida Fire Prevention Code by supplying ABF steel pipe containing an antimicrobial
that was incompatible with Blazemaster CPVC pipes and caused ESC on the Blazemaster pipes,
causing Plaintiffs and Class Members fire suppression systems to fail.
222.
Defendant actively concealed that its products met the Florida Building Code
and Fire Prevention Code so that the local government or public agency with authority to enforce
Page 51 of 246
the Florida Building Code approved the plans for construction of Plaintiffs and Class Members’
buildings. 3
223.
Defendant actively concealed that its product in conjunction with CPVC pipe
met the Florida Building Code and Fire Prevention Code allowing Plaintiffs and Class Members’
buildings to pass all required inspections under the code. 4
224.
Plaintiffs and Class Members have suffered damages to property other than
property that is subject to permits, plans and inspections.
225.
of the defect.
226.
3
Florida statutes section 553.84 is inapplicable if a defendant “obtains the required building
permits and any local government or public agency with authority to enforce the Florida
Building Code approves the plans;” however, Defendant should not be able to benefit from its
conduct of hiding the defects, as set forth herein.
4
Florida statutes section 553.84 is inapplicable if a “construction project passes all required
inspections under the code;” however, Defendant should not be able to benefit from its conduct
of hiding the defects, as set forth herein.
Page 52 of 246
related expenses.
227.
COUNT 6
NEGLIGENCE AS TO TYCO AND TYCO FIRE
228.
All Plaintiffs adopt and restate paragraphs 1-16, 22-37 and 76-171 as if fully set
forth herein.
229.
Defendants owed a duty to Plaintiffs to exercise reasonable care to manufacture,
design, test, inspect, market, distribute and sell their Blazemaster CPVC pipe and its constituent
parts properly, and to adequately warn of their failure to do the same. Specifically, Defendants
Page 53 of 246
had a duty to ensure that its Blazemaster CPVC products were: a) compatible with ABF steel
pipes in fire suppression systems so that the resin in the Blazemaster CPVC pipes did not break
down causing ESC; and b) compatible with common construction materials like pesticides, joint
compound, adhesives and fire retardants so that the resin in the Blazemaster CPVC pipes did not
break down causing ESC, and to adequately warn of its failure to do the same. Defendants’ duty
included, but was not limited to the following:
a) properly designing their Blazemaster CPVC pipes so that they were compatible
with ABF steel pipes so as not to cause ESC in fire suppression systems;
b) properly manufacturing their Blazemaster CPVC pipes so that they were
compatible with ABF steel pipes so as not to cause ESC in fire suppression
systems;
c) properly inspecting their Blazemaster CPVC pipes so that they were compatible
d) properly testing their Blazemaster CPVC pipes so that they were compatible
e) properly marketing their Blazemaster CPVC pipes so that they were compatible
f) adequately warning that their Blazemaster CPVC pipes were incompatible with
ABF steel pipes so as not to cause ESC in fire suppression systems;
g) properly designing their Blazemaster CPVC pipes so that they were compatible
with an antimicrobial contained in ABF steel pipes so as not to cause ESC in
fire suppression systems;
Page 54 of 246
h) properly manufacturing their Blazemaster CPVC pipes so that they were
compatible with an antimicrobial contained in ABF steel pipes so as not to
cause ESC in fire suppression systems;
i) properly inspecting their Blazemaster CPVC pipes so that they were compatible
j) properly testing their Blazemaster CPVC pipes so that they were compatible
k) adequately warning that their Blazemaster CPVC pipes were incompatible with
an antimicrobial contained in ABF steel pipes that caused ESC in fire
l) using reasonable care in the distribution of their Blazemaster CPVC pipes to
prevent them from containing defects;
m) using reasonable care in the sale of their Blazemaster CPVC pipes to prevent it
n) using reasonable care in the supplying of the Blazemaster CPVC pipes to
with their Blazemaster CPVC pipes;
p) properly formulating and selecting the resin in their Blazemaster CPVC pipes to
be compatible with the antimicrobial in ABF steel pipes;
Page 55 of 246
that the Blazemaster CPVC pipes were defective;
r) marketing, advertising and recommending use of their Blazemaster CPVC pipes
with sufficient knowledge as to its manufacturing and design defect and
s) not misrepresenting that their Blazemaster CPVC pipes were safe for their
intended purpose when, in fact, they were not;
t) disclosing that their Blazemaster CPVC pipes were incompatible with ABF
steel pipes;
u) not manufacturing their Blazemaster CPVC pipes in a manner which was
v) not designing their Blazemaster CPVC pipes in a manner which was dangerous
to its intended and foreseeable users;
w) not distributing, delivering, and/or supplying their Blazemaster CPVC pipes in a
manner which was dangerous to its intended and foreseeable users;
of their Blazemaster CPVC pipes in combination with ABF steel pipe’s adverse
effects on fire suppression systems;
steel pipe when combined with Defendants’ Blazemaster CPVC pipe for fire
Page 56 of 246
z) otherwise exercise reasonable care in the design, manufacturing, testing,
inspection, marketing, selling and distribution of their Blazemaster CPVC pipes
to ensure that it was compatible with common construction materials like
pesticides, joint compound, adhesives and fire retardants; and,
aa) otherwise exercise reasonable care in the design, manufacturing, testing,
inspection, marketing, selling and distribution of their CPVC pipes in
conjunction with ABF steel pipes so as not to cause ESC in fire suppression
systems.
230.
Defendants breached their duty to Plaintiffs to exercise reasonable care in the
manufacturing, designing, testing, inspecting, marketing, distributing and sales of its
Blazemaster CPVC pipe and its constituent parts properly, and to adequately warn of its failure
to do the same. Specifically, Defendants breached their duty to ensure that their Blazemaster
CPVC products were: a) compatible with ABF steel pipes containing a antimicrobial that did not
break down the resin in Defendants’ Blazemaster CPVC pipes and cause ESC; and b) compatible
with common construction materials like pesticides, joint compound, adhesives and fire
retardants so that the resin in Defendants’ Blazemaster CPVC pipes did not break down causing
ESC, and to adequately warn of its failure to do the same. Defendants’ breach of their duty
a) failing to properly design their Blazemaster CPVC pipes so that they were
systems;
Page 57 of 246
b) failing to properly manufacture their Blazemaster CPVC pipes so that they were
systems;
c) failing to properly inspect their Blazemaster CPVC pipes so that they were
systems;
d) failing to properly test their Blazemaster CPVC pipes so that they were
systems;
e) failing to properly market their Blazemaster CPVC pipes so that they were
systems;
f) failing to properly adequately warn that their Blazemaster CPVC pipes were
incompatible with ABF steel pipes so as not to cause ESC in fire suppression
systems;
g) failing to properly designing their Blazemaster CPVC pipes so that they were
h) failing to properly manufacture their Blazemaster CPVC pipes so that they were
Page 58 of 246
i) failing to properly inspect their Blazemaster CPVC pipes so that they were
j) failing to properly test their Blazemaster CPVC pipes so that they were
k) failing to properly adequately warn that their Blazemaster CPVC pipes were
incompatible with an antimicrobial contained in ABF steel pipes that caused
ESC in fire suppression systems;
l) failing to properly use reasonable care in the distribution of their Blazemaster
CPVC pipes to prevent them from containing defects;
m) failing to properly use reasonable care in the sale of their Blazemaster CPVC
pipes to prevent it from containing defects;
n) failing to properly use reasonable care in the supplying of the Blazemaster
o) failing to properly adequately instruct Plaintiffs and Class Members of the
defects associated with their Blazemaster CPVC pipes;
p) failing to properly formulate and select the resin in their Blazemaster CPVC
pipes to be compatible with the antimicrobial in ABF steel pipes;
known that the Blazemaster CPVC pipes were defective;
Page 59 of 246
s) misrepresenting that their Blazemaster CPVC pipes were safe for their intended
purpose when, in fact, they were not;
t) not disclosing that their Blazemaster CPVC pipes were incompatible with ABF
steel pipes;
u) manufacturing their Blazemaster CPVC pipes in a manner which was dangerous
v) designing their Blazemaster CPVC pipes in a manner which was dangerous to
its intended and foreseeable users;
w) distributing, delivering, and/or supplying their Blazemaster CPVC pipes in a
their Blazemaster CPVC pipes in combination with ABF steel pipe’s adverse
when combined with Defendants’ Blazemaster CPVC pipe for fire suppression
systems;
z) failing to otherwise exercising reasonable care in the design, manufacturing,
testing, inspection, marketing, selling and distribution of their Blazemaster
Page 60 of 246
CPVC pipes to ensure that
it was compatible with common construction
materials like pesticides, joint compound, adhesives and fire retardants; and,
aa) failing to otherwise exercising reasonable care in the design, manufacturing,
testing, inspection, marketing, selling and distribution of their CPVC pipes in
systems.
231.
Defendants knew or should have known that their wrongful acts and omissions
would result in damages to Plaintiffs and Class Members in the manner set forth herein.
232.
As a direct and proximate cause of Defendants’ acts and omissions, Plaintiffs
of the defect.
233.
defective Blazemaster CPVC pipe in the building; permanent diminution in value of the home;
and other related expenses.
Page 61 of 246
COUNT 7
STRICT LIABILITY AS TO TYCO AND TYCO FIRE
234.
forth herein.
235.
At all times relevant hereto, Defendants were in the business of designing,
Blazemaster CPVC pipe for sale to the general public.
236.
The Blazemaster CPVC pipe, including that installed in Plaintiffs and Class
Members were placed by Defendants in the stream of commerce.
237.
Defendants knew that the subject Blazemaster CPVC pipe would be used
without inspection for defects by consumers.
Page 62 of 246
238.
Defendants intended that the Blazemaster CPVC pipe reach the ultimate
consumer, such as Plaintiffs and Class Members, and it indeed reached Plaintiffs and Class
Members when it was installed in their buildings.
239.
When installed in the Plaintiffs and Class Members’ buildings, the Blazemaster
CPVC pipe was in substantially the same condition it was when Defendants manufactured, sold,
and/or delivered it.
240.
consistent with the uses intended by, or known to Defendants, and in accordance with the
Defendants directions and instructions.
241.
The subject Blazemaster CPVC pipe was not misused or altered by any third
parties, Plaintiffs or Class Members.
242.
The Blazemaster CPVC pipe was defectively manufactured, designed,
inspected, tested, marketed, distributed, and sold.
243.
The design defect in the Blazemaster CPVC pipe was twofold: 1) the resin used
to make the Blazemaster CPVC pipe was incompatible with an antimicrobial used in ABF steel
pipes that caused the resin in the Blazemaster to break down, causing ESC, causing Plaintiffs’
issue because the fire suppression system will not work properly; and 2) the resin used to make
the Blazemaster CPVC pipe was incompatible with common construction materials like
pesticides, joint compound, adhesives and fire retardants, causing ESC, causing Plaintiffs’ fire
suppression systems to leak, lose pressure and cause property damage and create a life-safety
Page 63 of 246
244.
The manufacturing defects in the Blazemaster CPVC pipe are twofold: 1)
improperly selecting, formulating, testing, inspecting, assembling and using a resin for the
Blazemaster CPVC pipe that was incompatible with the antimicrobial in the ABF steel pipe that
breaks down the resin in Blazemaster CPVC pipes, causes ESC in the Blazemaster CPVC pipes
that cause Plaintiffs’ fire suppression systems to leak, lose pressure, cause property damage and
create a life-safety issue because the fire suppression system will not work properly; and 2)
improperly selecting, formulating, testing, inspecting, assembling and using a resin for the
Blazemaster CPVC pipe that was incompatible with common construction materials like
245.
The Blazemaster CPVC pipe was also defective because it was improperly
distributed, delivered, supplied, inspected, marketed, and/or sold in a defective condition, as
described above.
246.
distributing, and selling of the Blazemaster CPVC pipe rendered it unsafe and unreasonably
dangerous for its intended use and to the Plaintiffs and Class Members.
247.
The Blazemaster CPVC pipe is also defective and unreasonably dangerous
because Defendants failed to adequately warn and instruct the Plaintiffs and Class Members of
the defective design, inspection, testing, manufacturing, marketing, and selling of the
Blazemaster CPVC pipe.
248.
propensities and defective condition of the Blazemaster CPVC pipe, nor could Plaintiffs and
Page 64 of 246
Class Members, acting as a reasonably prudent people discover that Defendants’ Blazemaster
CPVC pipe was defective, as set forth herein, or perceive its danger.
249.
Defendants’ Blazemaster CPVC pipe was much more dangerous and harmful
than expected by the average consumer and by Plaintiffs and Class Members.
250.
Defendants’ Blazemaster CPVC pipe’s benefit to Plaintiffs and Class Members,
if any, was greatly outweighed by the risk of harm and danger to them.
251.
The Blazemaster CPVC pipe, as well as Defendants’ failure to adequately warn
the Plaintiffs and Class Members of the defects rendered the Blazemaster CPVC pipe
unreasonably dangerous and was the direct and proximate cause of damages to Plaintiffs and
Class Members.
252.
of the defect.
253.
Page 65 of 246
WHEREFORE Plaintiffs, on behalf of all others similarly situated and the Class Members,
demands:
COUNT 8
FLORIDA DECEPTIVE AND UNFAIR TRADE PRACTICES ACT “FDUTPA” AS TO
TYCO & TYCO FIRE ON BEHALF OF FLORIDA SUBCLASS, ONLY
254.
forth herein.
255.
256.
Page 66 of 246
257.
person or activity.
The advertising, soliciting, providing, offering, or distributing of Blazemaster CPVC pipe by
Defendants to Plaintiffs and Class Members is "Trade or Commerce" within the meaning of
section 501.203(8), Florida Statutes.
258.
trade or commerce are hereby declared unlawful." Defendants’ acts and omissions as well as
their failure to use reasonable care in this matter as alleged in this Complaint equals
unconscionable acts or practices, as well as deceptive and unfair acts or practices in the conduct
of Defendants’ trade or commerce pursuant to section 501.204, Florida Statutes.
259.
The unconscionable, illegal, unfair and deceptive acts and practices of
Defendants violated FDUTPA. Plaintiffs and Class Members have suffered actual damage for
which they are entitled to relief pursuant to section 501.211(2), Florida Statutes.
260.
Page 67 of 246
261.
As a direct and proximate cause of the Defendants’ acts and omissions,
d. actual damages;
statute;
COUNT 9
BREACH OF STATUTORY WARRANTY AS TO TYCO AND TYCO FIRE
262.
forth herein.
263.
Defendants are suppliers of Blazemaster CPVC pipe.
Page 68 of 246
264.
Pursuant to Florida Statutes section 718.203(2), Defendants are deemed to have
granted Plaintiffs and Class Members an implied warranty of fitness as to the Blazemaster CPVC
pipes they supplied as follows:
only one unit.
265.
and common areas.
266.
267.
and Class Members.
268.
Defendants breached their warranty of fitness because the Blazemaster CPVC
pipes they supplied are incompatible with an antimicrobial in ABF pipe that breaks down the
resin in Blazemaster CPVC pipes, causing ESC in the Blazemaster CPVC pipes, which causes
Plaintiffs’ fire suppression systems to leak, lose pressure and cause property damage and create a
life-safety issue because the fire suppression system will not work properly.
269.
Defendants also breached their warranty of fitness because the Blazemaster
CPVC pipes they supplied are incompatible with common construction materials like pesticides,
Page 69 of 246
joint compound, adhesives and fire retardants, causing ESC, causing Plaintiffs’ fire suppression
systems to leak, lose pressure, cause property damage and create a life-safety issue because the
fire suppression system will not work properly.
270.
of the defect.
271.
related expenses.
272.
Page 70 of 246
COUNT 10
TYCO AND TYCO FIRE ON BEHALF OF FLORIDA SUBCLASS, ONLY
273.
forth herein.
274.
275.
Defendants have a duty to supply materials that are compliant with the Florida
Building Code and Florida’s Fire Prevention Code.
276.
Defendants have breached their duty of complying with the above referenced
sections of the Florida Building Code and Florida Fire Prevention Code by supplying defective
Blazemaster CPVC pipe that: 1) is incompatible with an antimicrobial in ABF pipe that breaks
down the resin in Blazemaster CPVC pipes, causing ESC in the Blazemaster CPVC pipes, which
causes Plaintiffs’ fire suppression systems to leak, lose pressure and cause property damage and
create a life-safety issue because the fire suppression system will not work properly; or 2) is
Page 71 of 246
incompatible with common construction materials like pesticides, joint compound, adhesives and
fire retardants, causing ESC, causing Plaintiffs’ fire suppression systems to leak, lose pressure,
cause property damage and create a life-safety issue because the fire suppression system will not
work properly.
277.
Defendants actively concealed that their products met the Florida Building Code
buildings. 5
278.
Defendants actively concealed that their product in conjunction with CPVC pipe
279.
Defendants knew or should have known that they violated the Florida Building
Code and Florida Fire Prevention Code by defective Blazemaster CPVC pipes that were
incompatible with ABF steel pipe and common construction materials as set forth herein, causing
ESC on the Blazemaster CPVC pipes, causing Plaintiffs and Class Members fire suppression
systems to fail.
280.
Plaintiffs and Class Members have suffered damages to property other than that
which is subject to permits, plans and inspections.
5
Building Code approves the plans;” however, Defendants should not be able to benefit from its
6
inspections under the code;” however, Defendants should not be able to benefit from its conduct
Page 72 of 246
281.
of the defect.
282.
defective Blazemaster CPVC in the building; permanent diminution in value of the home; and
other related expenses.
283.
Page 73 of 246
COUNT 11
NEGLIGENCE AS TO LUBRIZOL AND LUBRIZOL CORP.
284.
forth herein.
285.
Defendants owed a duty to Plaintiffs to exercise reasonable care to manufacture,
design, test, inspect, market, distribute and sell their Blazemaster CPVC pipe and its constituent
parts properly, and to adequately warn of their failure to do the same. Specifically, Defendants
had a duty to ensure that their Blazemaster CPVC products were: a) compatible with ABF steel
break down causing ESC, and to adequately warn of their failure to do the same. Defendants’
duty included, but was not limited to the following:
a) properly designing their Blazemaster CPVC pipes so that they were compatible
b) properly manufacturing their Blazemaster CPVC pipes so that they were
systems;
Page 74 of 246
c) properly inspecting their Blazemaster CPVC pipes so that they were compatible
d) properly testing their Blazemaster CPVC pipes so that they were compatible
e) properly marketing their Blazemaster CPVC pipes so that they were compatible
f) adequately warning that their Blazemaster CPVC pipes were incompatible with
g) properly designing their Blazemaster CPVC pipes so that they were compatible
h) properly manufacturing their Blazemaster CPVC pipes so that they were
i) properly inspecting their Blazemaster CPVC pipes so that they were compatible
j) properly testing their Blazemaster CPVC pipes so that they were compatible
k) adequately warning that their Blazemaster CPVC pipes were incompatible with
Page 75 of 246
l) using reasonable care in the distribution of their Blazemaster CPVC pipes to
m) using reasonable care in the sale of their Blazemaster CPVC pipes to prevent it
with their Blazemaster CPVC pipes;
p) properly formulating and selecting the resin in their Blazemaster CPVC pipes to
s) not misrepresenting that their Blazemaster CPVC pipes were safe for their
t) disclosing that their Blazemaster CPVC pipes were incompatible with ABF
steel pipes;
u) not manufacturing their Blazemaster CPVC pipes in a manner which was
v) not designing their Blazemaster CPVC pipes in a manner which was dangerous
Page 76 of 246
w) not distributing, delivering, and/or supplying their Blazemaster CPVC pipes in a
of their Blazemaster CPVC pipes in combination with ABF steel pipe’s adverse
inspection, marketing, selling and distribution of their Blazemaster CPVC pipes
to ensure that it was compatible with common construction materials like
inspection, marketing, selling and distribution of their CPVC pipes in
systems.
286.
manufacturing, designing, testing, inspecting, marketing, distributing and sales of their
Blazemaster CPVC pipe and its constituent parts properly, and to adequately warn of their failure
to do the same. Specifically, Defendants breached their duty to ensure that their Blazemaster
CPVC products were: a) compatible with ABF steel pipes containing a antimicrobial that did not
break down the resin in Defendants’ Blazemaster CPVC pipes and cause ESC; and b) compatible
Page 77 of 246
retardants so that the resin in Defendants’ Blazemaster CPVC pipes did not break down causing
ESC, and to adequately warn of its failure to do the same. Defendants’ breach of their duty
a) failing to properly design their Blazemaster CPVC pipes so that they were
systems;
b) failing to properly manufacture their Blazemaster CPVC pipes so that they were
systems;
c) failing to properly inspect their Blazemaster CPVC pipes so that they were
systems;
d) failing to properly test their Blazemaster CPVC pipes so that they were
systems;
e) failing to properly market their Blazemaster CPVC pipes so that they were
systems;
f) failing to properly adequately warn that their Blazemaster CPVC pipes were
systems;
Page 78 of 246
g) failing to properly designing their Blazemaster CPVC pipes so that they were
h) failing to properly manufacture their Blazemaster CPVC pipes so that they were
i) failing to properly inspect their Blazemaster CPVC pipes so that they were
j) failing to properly test their Blazemaster CPVC pipes so that they were
k) failing to properly adequately warn that their Blazemaster CPVC pipes were
l) failing to properly use reasonable care in the distribution of their Blazemaster
m) failing to properly use reasonable care in the sale of their Blazemaster CPVC
defects associated with their Blazemaster CPVC pipes;
Page 79 of 246
p) failing to properly formulate and select the resin in their Blazemaster CPVC
pipes to be compatible with the antimicrobial in ABF steel pipes;
s) misrepresenting that their Blazemaster CPVC pipes were safe for their intended
t) failing to disclose that their Blazemaster CPVC pipes were incompatible with
ABF steel pipes;
u) manufacturing their Blazemaster CPVC pipes in a manner which was dangerous
v) designing their Blazemaster CPVC pipes in a manner which was dangerous to
w) distributing, delivering, and/or supplying their Blazemaster CPVC pipes in a
their Blazemaster CPVC pipes in combination with ABF steel pipe’s adverse
Page 80 of 246
systems;
testing, inspection, marketing, selling and distribution of their Blazemaster
CPVC pipes to ensure that
it was compatible with common construction
materials like pesticides, joint compound, adhesives and fire retardants; and,
testing, inspection, marketing, selling and distribution of their CPVC pipes in
systems.
287.
288.
of the defect.
289.
Page 81 of 246
COUNT 12
STRICT LIABILITY AS TO LUBRIZOL AND LUBRIZOL CORP.
290.
All Plaintiffs adopt and restate paragraphs1-16, 38-43 and 81-171 as if fully set
forth herein.
291.
At all times relevant hereto, Defendants were in the business of designing,
292.
Members were placed by Defendants in the stream of commerce.
Page 82 of 246
293.
294.
295.
CPVC pipe was in substantially the same condition it was when Defendants manufactured, sold,
296.
consistent with the uses intended by, or known to Defendants, and in accordance with the
Defendants directions and instructions.
297.
298.
299.
The design defects in the Blazemaster CPVC pipes are: 1) the resin used to
make the Blazemaster CPVC pipe was incompatible with an antimicrobial used in ABF steel
Page 83 of 246
300.
The manufacturing defects in the Blazemaster CPVC pipe are: 1) improperly
selecting, formulating, testing, inspecting, assembling and using a resin for the Blazemaster
CPVC pipe that was incompatible with the antimicrobial in the ABF steel pipe that breaks down
the resin in Blazemaster CPVC pipes, causes ESC in the Blazemaster CPVC pipes that cause
Plaintiffs’ fire suppression systems to leak, lose pressure, cause property damage and create a
life-safety issue because the fire suppression system will not work properly; and 2) improperly
CPVC pipe that was incompatible with common construction materials like pesticides, joint
compound, adhesives and fire retardants, causing ESC, causing Plaintiffs’ fire suppression
301.
described above.
302.
303.
because Defendants failed to adequately warn and instruct the Plaintiffs and Class Members of
the defective design, inspection, testing, manufacturing, marketing, and selling of the
Blazemaster CPVC pipe.
Page 84 of 246
304.
305.
306.
307.
Class Members.
308.
of the defect.
309.
Page 85 of 246
demands:
COUNT 13
FLORIDA UNFAIR AND DECEPTIVE TRADE PRACTICES ACT “FDUTPA” AS TO
LUBRIZOL AND LUBRIZOL CORP. ON BEHALF OF FLORIDA SUBCLASS, ONLY
310.
forth herein.
311.
Page 86 of 246
312.
313.
person or activity.
314.
315.
Page 87 of 246
316.
317.
d. actual damages;
statute;
COUNT 14
BREACH OF STATUTORY WARRANTY AS TO LUBRIZOL AND LUBRIZOL CORP.
318.
forth herein.
319.
Page 88 of 246
320.
only one unit.
321.
and common areas.
322.
323.
and Class Members.
324.
pipes they supplied are incompatible with an antimicrobial in ABF pipe that breaks down the
resin in Blazemaster CPVC pipes, causing ESC in the Blazemaster CPVC pipes, which causes
Plaintiffs’ fire suppression systems to leak, lose pressure and cause property damage and create a
life-safety issue because the fire suppression system will not work properly.
325.
CPVC pipes they supplied are incompatible with common construction materials like pesticides,
Page 89 of 246
326.
of the defect.
327.
328.
Page 90 of 246
COUNT 15
AS TO LUBRIZOL AND LUBRIZOL CORP. ON BEHALF OF FLORIDA SUBCLASS,
ONLY
329.
forth herein.
330.
331.
332.
Page 91 of 246
work properly.
333.
Defendants actively concealed that their products met the Florida Building Code
buildings. 7
334.
Defendants actively concealed that their products in conjunction with CPVC
pipe met the Florida Building Code and Fire Prevention Code allowing Plaintiffs and Class
Members’ buildings to pass all required inspections under the code. 8
335.
systems to fail.
7
Building Code approves the plans;” however, Defendants should not be able to benefit from its
8
inspections under the code;” however, Defendants should not be able to benefit from its conduct
Page 92 of 246
336.
337.
of the defect.
338.
339.
Page 93 of 246
COUNT 16
NEGLIGENCE AS TO VIKING
340.
All Plaintiffs adopt and restate paragraphs 1-16, 44-46, 50-51, 81-90, 97-98,
150-151, 153 and 155-171 as if fully set forth herein.
341.
design, test, inspect, market, distribute and sell its Blazemaster CPVC pipe and its constituent
parts properly, and to adequately warn of their failure to do the same. Specifically, Defendant
had a duty to ensure that its Blazemaster CPVC products were: a) compatible with ABF steel
break down causing ESC, and to adequately warn of its failure to do the same. Defendant’s duty
a) properly designing its Blazemaster CPVC pipes so that they were compatible
Page 94 of 246
b) properly manufacturing its Blazemaster CPVC pipes so that they were
systems;
c) properly inspecting its Blazemaster CPVC pipes so that they were compatible
d) properly testing its Blazemaster CPVC pipes so that they were compatible with
e) properly marketing its Blazemaster CPVC pipes so that they were compatible
f) adequately warning that its Blazemaster CPVC pipes were incompatible with
g) properly designing its Blazemaster CPVC pipes so that they were compatible
h) properly manufacturing its Blazemaster CPVC pipes so that they were
i) properly inspecting its Blazemaster CPVC pipes so that they were compatible
j) properly testing its Blazemaster CPVC pipes so that they were compatible with
an antimicrobial contained in ABF steel pipes so as not to cause ESC in fire
Page 95 of 246
k) adequately warning that its Blazemaster CPVC pipes were incompatible with an
antimicrobial contained in ABF steel pipes that caused ESC in fire suppression
systems;
l) using reasonable care in the distribution of its Blazemaster CPVC pipes to
m) using reasonable care in the sale of its Blazemaster CPVC pipes to prevent it
with its Blazemaster CPVC pipes;
p) properly formulating and selecting the resin in its Blazemaster CPVC pipes to
r) marketing, advertising and recommending use of its Blazemaster CPVC pipes
s) misrepresenting that its Blazemaster CPVC pipes were safe for their intended
t) disclosing that its Blazemaster CPVC pipes were incompatible with ABF steel
pipes;
Page 96 of 246
u) manufacturing its Blazemaster CPVC pipes in a manner which was dangerous
v) not designing its Blazemaster CPVC pipes in a manner which was dangerous to
w) not distributing, delivering, and/or supplying its Blazemaster CPVC pipes in a
of its Blazemaster CPVC pipes in combination with ABF steel pipe’s adverse
z) failing to otherwise exercise reasonable care in the design, manufacturing,
testing, inspection, marketing, selling and distribution of its Blazemaster CPVC
pipes to ensure that it was compatible with common construction materials like
aa) failing to otherwise exercise reasonable care in the design, manufacturing,
pipes in conjunction with ABF steel pipes so as not to cause ESC in fire
suppression systems.
342.
manufacturing, designing, testing, inspecting, marketing, distributing and sales of its
Page 97 of 246
Blazemaster CPVC pipe and its constituent parts properly, and to adequately warn of its failure
to do the same. Specifically, Defendant breached its duty to ensure that its Blazemaster CPVC
products were: a) compatible with ABF steel pipes containing a antimicrobial that did not break
down the resin in Defendant’s Blazemaster CPVC pipes and cause ESC; and b) compatible with
common construction materials like pesticides, joint compound, adhesives and fire retardants so
that the resin in Defendant’s Blazemaster CPVC pipes did not break down causing ESC, and to
adequately warn of its failure to do the same. Defendant’s breach of its duty included, but was
a) failing to properly design its Blazemaster CPVC pipes so that they were
systems;
b) failing to properly manufacture its Blazemaster CPVC pipes so that they were
systems;
c) failing to properly inspect its Blazemaster CPVC pipes so that they were
systems;
d) failing to properly test its Blazemaster CPVC pipes so that they were
systems;
e) failing to properly market its Blazemaster CPVC pipes so that they were
systems;
Page 98 of 246
f) failing to properly adequately warn that its Blazemaster CPVC pipes were
systems;
g) failing to properly designing its Blazemaster CPVC pipes so that they were
h) failing to properly manufacture its Blazemaster CPVC pipes so that they were
i) failing to properly inspect its Blazemaster CPVC pipes so that they were
j) failing to properly test its Blazemaster CPVC pipes so that they were
k) failing to properly adequately warn that its Blazemaster CPVC pipes were
l) failing to properly use reasonable care in the distribution of its Blazemaster
m) failing to properly use reasonable care in the sale of its Blazemaster CPVC
Page 99 of 246
defects associated with its Blazemaster CPVC pipes;
p) failing to properly formulate and select the resin in its Blazemaster CPVC pipes
to be compatible with the antimicrobial in ABF steel pipes;
r) marketing, advertising and recommending use of its Blazemaster CPVC pipes
s) misrepresenting that its Blazemaster CPVC pipes were safe for their intended
t) disclosing that its Blazemaster CPVC pipes were incompatible with ABF steel
pipes;
u) manufacturing its Blazemaster CPVC pipes in a manner which was dangerous
v) designing its Blazemaster CPVC pipes in a manner which was dangerous to its
w) distributing, delivering, and/or supplying its Blazemaster CPVC pipes in a
Page 100 of 246
its Blazemaster CPVC pipes in combination with ABF steel pipe’s adverse
systems;
inspection, marketing, selling and distribution of its Blazemaster CPVC pipes to
ensure that
it was compatible with common construction materials like
aa) otherwise exercising reasonable care in the design, manufacturing, testing,
inspection, marketing, selling and distribution of its CPVC pipes in conjunction
with ABF steel pipes so as not to cause ESC in fire suppression systems.
343.
344.
of the defect.
Page 101 of 246
345.
COUNT 17
STRICT LIABILITY AS TO VIKING
346.
All Plaintiffs adopt and restate paragraphs1-16, 44-46, 50-51, 81-90, 97-98,
Page 102 of 246
347.
348.
Members was placed by Defendant in the stream of commerce.
349.
Defendant knew that the subject Blazemaster CPVC pipe would be used without
350.
Defendant intended that the Blazemaster CPVC pipe reach the ultimate
351.
CPVC pipe was in substantially the same condition it was when Defendant manufactured, sold,
352.
At all times relevant hereto the subject Blazemaster CPVC pipe was used in a
manner consistent with the uses intended by, or known to Defendant, and in accordance with the
353.
354.
355.
Page 103 of 246
356.
357.
described above.
358.
Page 104 of 246
359.
because Defendant failed to adequately warn and instruct the Plaintiffs and Class Members of the
defective design, inspection, testing, manufacturing, marketing, and selling of the Blazemaster
CPVC pipe.
360.
Class Members, acting as a reasonably prudent people discover that Defendant’s Blazemaster
361.
Defendant’s Blazemaster CPVC pipe was much more dangerous and harmful
362.
Defendant’s Blazemaster CPVC pipe’s benefit to Plaintiffs and Class Members,
363.
The Blazemaster CPVC pipe, as well as Defendant’s failure to adequately warn
Class Members.
364.
of the defect.
Page 105 of 246
365.
demands:
COUNT 18
VIKING ON BEHALF OF FLORIDA SUBCLASS, ONLY
Page 106 of 246
366.
367.
368.
369.
person or activity.
Defendant to Plaintiffs and Class Members is "Trade or Commerce" within the meaning of
370.
trade or commerce are hereby declared unlawful." Defendant’s acts and omissions as well as
of Defendant’s trade or commerce pursuant to section 501.204, Florida Statutes.
Page 107 of 246
371.
Defendant violated FDUTPA. Plaintiffs and Class Members have suffered actual damage for
372.
373.
d. actual damages;
statute;
COUNT 19
BREACH OF STATUTORY WARRANTY AS TO VIKING ON BEHALF OF FLORIDA
SUBCLASS, ONLY
Page 108 of 246
374.
375.
Defendant is a supplier of Blazemaster CPVC pipe.
376.
Pursuant to Florida Statutes section 718.203(2), Defendant is deemed to have
only one unit.
377.
and common areas.
378.
379.
and Class Members.
380.
Defendant breached its warranty of fitness because the Blazemaster CPVC
pipes it supplied is incompatible with an antimicrobial in ABF pipe that breaks down the resin in
Blazemaster CPVC pipes, causing ESC in the Blazemaster CPVC pipes, which causes Plaintiffs’
Page 109 of 246
381.
Defendant also breached its warranty of fitness because the Blazemaster CPVC
pipes it supplied are incompatible with common construction materials like pesticides, joint
382.
of the defect.
383.
384.
Page 110 of 246
COUNT 20
VIKING ON BEHALF OF FLORIDA SUBCLASS, ONLY
385.
386.
387.
388.
Page 111 of 246
work properly.
389.
Defendant knew or should have known that they violated the Florida Building
systems to fail.
390.
Plaintiff and Class Members have suffered damages to property other than that
391.
of the defect.
392.
Page 112 of 246
393.
COUNT 21
NEGLIGENCE AS TO VIKING SUPPLYNET
394.
All Plaintiffs adopt and restate paragraphs 1-16, 47-50, 81-90, 150-151, 153 and
155-171 as if fully set forth herein.
Page 113 of 246
395.
Defendant owed a duty to Plaintiffs to exercise reasonable care to test, inspect,
market, distribute and sell Blazemaster CPVC pipe and its constituent parts properly, and to
adequately warn of their failure to do the same. Specifically, Defendant had a duty to ensure that
its Blazemaster CPVC products were: a) compatible with ABF steel pipes in fire suppression
systems so that the resin in the Blazemaster CPVC pipes did not break down causing ESC; and
b) compatible with common construction materials like pesticides, joint compound, adhesives
and fire retardants so that the resin in the Blazemaster CPVC pipes did not break down causing
ESC, and to adequately warn of its failure to do the same. Defendant’s duty included, but was
a) properly inspecting its Blazemaster CPVC pipes so that they were compatible
b) properly testing its Blazemaster CPVC pipes so that they were compatible with
c) properly marketing its Blazemaster CPVC pipes so that they were compatible
d) adequately warning that its Blazemaster CPVC pipes were incompatible with
e) properly inspecting its Blazemaster CPVC pipes so that they were compatible
f) properly testing its Blazemaster CPVC pipes so that they were compatible with
Page 114 of 246
g) adequately warning that its Blazemaster CPVC pipes were incompatible with an
systems;
h) using reasonable care in the distribution of its Blazemaster CPVC pipes to
i) using reasonable care in the sale of its Blazemaster CPVC pipes to prevent it
j) using reasonable care in the supplying of the Blazemaster CPVC pipes to
k) adequately instructing Plaintiffs and Class Members of the defects associated
l) recalling or otherwise notifying users at the earliest date that it became known
m) marketing, advertising and recommending use of its Blazemaster CPVC pipes
n) not misrepresenting that its Blazemaster CPVC pipes were safe for their
o) disclosing that its Blazemaster CPVC pipes were incompatible with ABF steel
pipes;
p) not distributing, delivering, and/or supplying its Blazemaster CPVC pipes in a
Page 115 of 246
q) not concealing information from Plaintiffs and Class Members regarding reports
r) not concealing or misrepresenting information from Plaintiffs and Class
s) otherwise exercise reasonable care in the testing, inspection, marketing, selling
and distribution of its Blazemaster CPVC pipes to ensure that it was compatible
with common construction materials like pesticides, joint compound, adhesives
and fire retardants; and,
t) otherwise exercise reasonable care in the testing, inspection, marketing, selling
and distribution of its Blazemaster CPVC pipes in conjunction with ABF steel
pipes so as not to cause ESC in fire suppression systems.
396.
testing, inspecting, marketing, distributing and sales of its Blazemaster CPVC pipe and its
constituent parts properly, and to adequately warn of its failure to do the same. Specifically,
Defendant breached its duty to ensure that its Blazemaster CPVC products were: a) compatible
with ABF steel pipes containing a antimicrobial that did not break down the resin in Defendant’s
Blazemaster CPVC pipes and cause ESC; and b) compatible with common construction
materials like pesticides, joint compound, adhesives and fire retardants so that the resin in
Defendant’s Blazemaster CPVC pipes did not break down causing ESC, and to adequately warn
Page 116 of 246
of its failure to do the same. Defendant’s breach of its duty included, but was not limited to the
following:
a) failing to properly inspect its Blazemaster CPVC pipes so that they were
systems;
b) failing to properly test its Blazemaster CPVC pipes so that they were
systems;
c) failing to properly market its Blazemaster CPVC pipes so that they were
systems;
d) failing to properly adequately warn that its Blazemaster CPVC pipes were
systems;
e) failing to properly inspect its Blazemaster CPVC pipes so that they were
f) failing to properly test its Blazemaster CPVC pipes so that they were
g) failing to properly adequately warn that its Blazemaster CPVC pipes were
Page 117 of 246
h) failing to properly use reasonable care in the distribution of its Blazemaster
i) failing to properly use reasonable care in the sale of its Blazemaster CPVC
j) failing to properly use reasonable care in the supplying of the Blazemaster
k) failing to properly adequately instruct Plaintiffs and Class Members of the
l) failing to recall or otherwise notify users at the earliest date that it became
n) misrepresenting that its Blazemaster CPVC pipes were safe for their intended
o) not disclosing that its Blazemaster CPVC pipes were incompatible with ABF
steel pipes;
p) distributing, delivering, and/or supplying its Blazemaster CPVC pipes in a
q) concealing information from Plaintiffs and Class Members regarding reports of
Page 118 of 246
r) concealing or misrepresenting information from Plaintiffs and Class Members
systems;
s) failing to otherwise exercising reasonable care in the design, manufacturing,
t) failing to otherwise exercising reasonable care in the design, manufacturing,
testing, inspection, marketing, selling and distribution of its CPVC pipes in
systems.
397.
398.
of the defect.
399.
Page 119 of 246
COUNT 22
STRICT LIABILITY AS TO VIKING SUPPLYNET
400.
401.
At all times relevant hereto, Defendant was in the business of distributing,
selling, delivering, supplying, inspecting, marketing, and/or selling Blazemaster CPVC pipe for
sale to the general public.
Page 120 of 246
402.
Members was placed by Defendant in the stream of commerce.
403.
Defendant knew that the subject Blazemaster CPVC pipe would be used without
404.
Defendant intended that the Blazemaster CPVC pipe reach the ultimate
405.
CPVC pipe was in substantially the same condition it was when Defendant sold and/or delivered
it.
406.
manner consistent with the uses intended by, or known to Defendant, and in accordance with the
407.
408.
409.
Page 121 of 246
410.
411.
described above.
412.
413.
Page 122 of 246
CPVC pipe.
414.
Class Members, acting as a reasonably prudent people discover that Defendant’s Blazemaster
415.
Defendant’s Blazemaster CPVC pipe was much more dangerous and harmful
416.
Defendant’s Blazemaster CPVC pipe’s benefit to Plaintiffs and Class Members,
417.
The Blazemaster CPVC pipe, as well as Defendant’s failure to adequately warn
Class Members.
418.
of the defect.
419.
Page 123 of 246
demands:
COUNT 23
FLORIDA UNFAIR AND DECEPTIVE TRADE PRACTICES ACT “FDUTPA” AS TO
VIKING SUPPLYNET ON BEHALF OF FLORIDA SUBCLASS, ONLY
420.
Page 124 of 246
421.
422.
423.
person or activity.
Defendant to Plaintiffs and Class Members is "Trade or Commerce" within the meaning of
424.
Page 125 of 246
425.
426.
427.
d. actual damages;
statute;
COUNT 24
BREACH OF STATUTORY WARRANTY AS TO VIKING SUPPLYNET ON BEHALF
OF FLORIDA SUBCLASS, ONLY
Page 126 of 246
428.
429.
Defendant is a supplier of Blazemaster CPVC pipe.
430.
only one unit.
431.
and common areas.
432.
433.
and Class Members.
434.
Defendant breached its warranty of fitness because the Blazemaster CPVC
Page 127 of 246
435.
Defendant also breached its warranty of fitness because the Blazemaster CPVC
pipes it supplied are incompatible with common construction materials like pesticides, joint
436.
of the defect.
437.
438.
Page 128 of 246
COUNT 25
VIKING SUPPLYNET ON BEHALF OF FLORIDA SUBCLASS, ONLY
439.
440.
441.
442.
Page 129 of 246
work properly.
443.
systems to fail.
444.
445.
of the defect.
446.
Page 130 of 246
447.
COUNT 26
NEGLIGENCE AS TO VICTAULIC
448.
153 and 155-171 as if fully set forth herein.
Page 131 of 246
449.
design, test, inspect, market, distribute and sell its CPVC pipe and its constituent parts properly,
and to adequately warn of their failure to do the same. Specifically, Defendant had a duty to
ensure that its CPVC products were: a) compatible with ABF steel pipes in fire suppression
systems so that the resin in the CPVC pipes did not break down causing ESC; and b) compatible
retardants so that the resin in the CPVC pipes did not break down causing ESC, and to
adequately warn of its failure to do the same. Defendant’s duty included, but was not limited to
the following:
a) properly designing its CPVC pipes so that they were compatible with ABF steel
pipes so as not to cause ESC in fire suppression systems;
b) properly manufacturing its CPVC pipes so that they were compatible with ABF
steel pipes so as not to cause ESC in fire suppression systems;
c) properly inspecting its CPVC pipes so that they were compatible with ABF steel
d) properly testing its CPVC pipes so that they were compatible with ABF steel
e) properly marketing its CPVC pipes so that they were compatible with ABF steel
f) adequately warning that its CPVC pipes were incompatible with ABF steel
Page 132 of 246
g) properly designing its CPVC pipes so that they were compatible with an
antimicrobial contained in ABF steel pipes so as not to cause ESC in fire
h) properly manufacturing its CPVC pipes so that they were compatible with an
i) properly inspecting its CPVC pipes so that they were compatible with an
j) properly testing its CPVC pipes so that they were compatible with an
k) adequately warning that its CPVC pipes were incompatible with an
systems;
l) using reasonable care in the distribution of its CPVC pipes to prevent them from
containing defects;
m) using reasonable care in the sale of its CPVC pipes to prevent it from containing
defects;
n) using reasonable care in the supplying of the CPVC pipes to prevent them from
containing defects;
with its CPVC pipes;
Page 133 of 246
p) properly formulating and selecting the resin in its CPVC pipes to be compatible
with the antimicrobial in ABF steel pipes;
that the CPVC pipes were defective;
r) marketing, advertising and recommending use of its CPVC pipes with sufficient
knowledge as to its manufacturing and design defect and dangerous
propensities;
s) not misrepresenting that its CPVC pipes were safe for their intended purpose
when, in fact, they were not;
t) disclosing that its CPVC pipes were incompatible with ABF steel pipes;
u) not manufacturing its CPVC pipes in a manner which was dangerous to its
v) not designing its CPVC pipes in a manner which was dangerous to its intended
w) not distributing, delivering, and/or supplying its CPVC pipes in a manner which
of its CPVC pipes in combination with ABF steel pipe’s adverse effects on fire
steel pipe when combined with Defendants’ CPVC pipe for fire suppression
systems;
Page 134 of 246
inspection, marketing, selling and distribution of its CPVC pipes to ensure that
it was compatible with common construction materials like pesticides, joint
compound, adhesives and fire retardants; and,
450.
manufacturing, designing, testing, inspecting, marketing, distributing and sales of its CPVC pipe
and its constituent parts properly, and to adequately warn of its failure to do the same.
Specifically, Defendant breached its duty to ensure that its CPVC products were: a) compatible
CPVC pipes and cause ESC; and b) compatible with common construction materials like
pesticides, joint compound, adhesives and fire retardants so that the resin in Defendant’s CPVC
pipes did not break down causing ESC, and to adequately warn of its failure to do the same.
Defendant’s breach of its duty included, but was not limited to the following:
a) failing to properly design its CPVC pipes so that they were compatible with
b) failing to properly manufacture its CPVC pipes so that they were compatible
c) failing to properly inspect its CPVC pipes so that they were compatible with
Page 135 of 246
d) failing to properly test its CPVC pipes so that they were compatible with ABF
e) failing to properly market its CPVC pipes so that they were compatible with
f) failing to properly adequately warn that its CPVC pipes were incompatible with
g) failing to properly designing its CPVC pipes so that they were compatible with
h) failing to properly manufacture its CPVC pipes so that they were compatible
i) failing to properly inspect its CPVC pipes so that they were compatible with an
j) failing to properly test its CPVC pipes so that they were compatible with an
k) failing to properly adequately warn that its CPVC pipes were incompatible with
l) failing to properly use reasonable care in the distribution of its CPVC pipes to
Page 136 of 246
m) failing to properly use reasonable care in the sale of its CPVC pipes to prevent it
n) failing to properly use reasonable care in the supplying of the CPVC pipes to
defects associated with its CPVC pipes;
p) failing to properly formulate and select the resin in its CPVC pipes to be
compatible with the antimicrobial in ABF steel pipes;
known that the CPVC pipes were defective;
r) marketing, advertising and recommending use of its CPVC pipes without
sufficient knowledge as to its manufacturing and design defect and dangerous
propensities;
s) misrepresenting that its CPVC pipes were safe for their intended purpose when,
in fact, they were not;
t) not disclosing that its CPVC pipes were incompatible with ABF steel pipes;
u) manufacturing its CPVC pipes in a manner which was dangerous to its intended
v) designing its CPVC pipes in a manner which was dangerous to its intended and
foreseeable users;
w) distributing, delivering, and/or supplying its CPVC pipes in a manner which
Page 137 of 246
its CPVC pipes in combination with ABF steel pipe’s adverse effects on fire
when combined with Defendants’ CPVC pipe for fire suppression systems;
testing, inspection, marketing, selling and distribution of its CPVC pipes to
ensure that
systems.
451.
452.
of the defect.
Page 138 of 246
453.
defective CPVC pipe in the building; permanent diminution in value of the home; and other
related expenses.
COUNT 27
STRICT LIABILITY AS TO VICTAULIC
454.
Page 139 of 246
455.
CPVC pipe for sale to the general public.
456.
The CPVC pipe, including that installed in Plaintiffs and Class Members was
placed by Defendant in the stream of commerce.
457.
Defendant knew that the subject CPVC pipe would be used without inspection
for defects by consumers.
458.
Defendant intended that the CPVC pipe reach the ultimate consumer, such as
Plaintiffs and Class Members, and it indeed reached Plaintiffs and Class Members when it was
459.
When installed in the Plaintiffs and Class Members’ buildings, the CPVC pipe
was in substantially the same condition it was when Defendant manufactured, sold, and/or
delivered it.
460.
At all times relevant hereto the subject CPVC pipe was used in a manner
461.
The subject CPVC pipe was not misused or altered by any third parties,
462.
The CPVC pipe was defectively manufactured, designed, inspected, tested,
463.
The design defects in the CPVC pipes are: 1) the resin used to make the CPVC
pipe was incompatible with an antimicrobial used in ABF steel pipes that caused the resin in the
to break down, causing ESC, causing Plaintiffs’ fire suppression systems to leak, lose pressure
Page 140 of 246
and cause property damage and create a life-safety issue because the fire suppression system will
not work properly; and 2) the resin used to make the CPVC pipe was incompatible with common
construction materials like pesticides, joint compound, adhesives and fire retardants, causing
ESC, causing Plaintiffs’ fire suppression systems to leak, lose pressure and cause property
damage and create a life-safety issue because the fire suppression system will not work properly.
464.
The manufacturing defects in the CPVC pipe are: 1) improperly selecting,
formulating, testing, inspecting, assembling and using a resin for the CPVC pipe that was
incompatible with the antimicrobial in the ABF steel pipe that breaks down the resin in CPVC
pipes, causes ESC in the CPVC pipes that cause Plaintiffs’ fire suppression systems to leak, lose
pressure, cause property damage and create a life-safety issue because the fire suppression
system will not work properly; and 2) improperly selecting, formulating, testing, inspecting,
assembling and using a resin for the CPVC pipe that was incompatible with common
ESC, causing Plaintiffs’ fire suppression systems to leak, lose pressure, cause property damage
and create a life-safety issue because the fire suppression system will not work properly.
465.
The CPVC pipe was also defective because it was improperly distributed,
above.
466.
distributing, and selling of the CPVC pipe rendered it unsafe and unreasonably dangerous for its
intended use and to the Plaintiffs and Class Members.
Page 141 of 246
467.
The CPVC pipe is also defective and unreasonably dangerous because
Defendant failed to adequately warn and instruct the Plaintiffs and Class Members of the
defective design, inspection, testing, manufacturing, marketing, and selling of the CPVC pipe.
468.
propensities and defective condition of the CPVC pipe, nor could Plaintiffs and Class Members,
acting as a reasonably prudent people discover that Defendant’s CPVC pipe was defective, as set
forth herein, or perceive its danger.
469.
Defendant’s CPVC pipe was much more dangerous and harmful than expected
by the average consumer and by Plaintiffs and Class Members.
470.
Defendant’s CPVC pipe’s benefit to Plaintiffs and Class Members, if any, was
471.
The CPVC pipe, as well as Defendant’s failure to adequately warn the Plaintiffs
and Class Members of the defects rendered the CPVC pipe unreasonably dangerous and was the
direct and proximate cause of damages to Plaintiffs and Class Members.
472.
of the defect.
473.
Page 142 of 246
related expenses.
demands:
COUNT 28
VICTAULIC ON BEHALF OF FLORIDA SUBCLASS, ONLY
474.
Page 143 of 246
475.
476.
477.
person or activity.
The advertising, soliciting, providing, offering, or distributing of CPVC pipe by Defendant to
Florida Statutes.
478.
Page 144 of 246
479.
480.
481.
d. actual damages;
statute;
COUNT 29
BREACH OF STATUTORY WARRANTY AS TO VICTAULIC ON BEHALF OF
FLORIDA SUBCLASS, ONLY
Page 145 of 246
482.
483.
Defendant is a supplier of CPVC pipe.
484.
granted Plaintiffs and Class Members an implied warranty of fitness as to the CPVC pipes they
supplied as follows:
only one unit.
485.
and common areas.
486.
487.
and Class Members.
488.
Defendant breached its warranty of fitness because the CPVC pipes it supplied
is incompatible with an antimicrobial in ABF pipe that breaks down the resin in CPVC pipes,
causing ESC in the CPVC pipes, which causes Plaintiffs’ fire suppression systems to leak, lose
Page 146 of 246
pressure and cause property damage and create a life-safety issue because the fire suppression
system will not work properly.
489.
Defendant also breached its warranty of fitness because the CPVC pipes it
supplied are incompatible with common construction materials like pesticides, joint compound,
adhesives and fire retardants, causing ESC, causing Plaintiffs’ fire suppression systems to leak,
lose pressure, cause property damage and create a life-safety issue because the fire suppression
490.
of the defect.
491.
related expenses.
492.
Page 147 of 246
COUNT 30
VICTAULIC ON BEHALF OF FLORIDA SUBCLASS, ONLY
493.
494.
495.
496.
Page 148 of 246
CPVC pipe that: 1) is incompatible with an antimicrobial in ABF pipe that breaks down the resin
in CPVC pipes, causing ESC in the CPVC pipes, which causes Plaintiffs’ fire suppression
systems to leak, lose pressure and cause property damage and create a life-safety issue because
the fire suppression system will not work properly; or 2) is incompatible with common
497.
Code and Florida Fire Prevention Code by defective CPVC pipes that were incompatible with
ABF steel pipe and common construction materials as set forth herein, causing ESC on the
CPVC pipes, causing Plaintiffs and Class Members fire suppression systems to fail.
498.
499.
of the defect.
500.
Page 149 of 246
defective CPVC in the building; permanent diminution in value of the home; and other related
expenses.
501.
COUNT 31
NEGLIGENCE AS TO HARVEL
502.
503.
Page 150 of 246
the following:
Page 151 of 246
systems;
containing defects;
defects;
containing defects;
Page 152 of 246
propensities;
systems;
Page 153 of 246
504.
Page 154 of 246
Page 155 of 246
propensities;
foreseeable users;
Page 156 of 246
ensure that
systems.
505.
506.
of the defect.
507.
Page 157 of 246
related expenses.
COUNT 32
STRICT LIABILITY AS TO HARVEL
508.
509.
Page 158 of 246
510.
511.
512.
513.
delivered it.
514.
515.
516.
517.
Page 159 of 246
518.
519.
above.
520.
521.
522.
Page 160 of 246
523.
524.
525.
526.
of the defect.
527.
related expenses.
Page 161 of 246
demands:
COUNT 33
HARVEL ON BEHALF OF FLORIDA SUBCLASS, ONLY
528.
153 and 155-17as if fully set forth herein.
529.
530.
Page 162 of 246
531.
person or activity.
Florida Statutes.
532.
533.
534.
Page 163 of 246
535.
d. actual damages;
statute;
COUNT 34
BREACH OF STATUTORY WARRANTY AS TO HARVEL ON BEHALF OF
FLORIDA SUBCLASS, ONLY
536.
537.
Page 164 of 246
538.
only one unit.
539.
and common areas.
540.
541.
and Class Members.
542.
543.
Page 165 of 246
544.
of the defect.
545.
related expenses.
546.
Page 166 of 246
COUNT 35
HARVEL ON BEHALF OF FLORIDA SUBCLASS, ONLY
547.
548.
549.
550.
Page 167 of 246
551.
552.
553.
of the defect.
554.
expenses.
Page 168 of 246
555.
COUNT 36
NEGLIGENCE AS TO NIBCO
556.
557.
Page 169 of 246
the following:
Page 170 of 246
systems;
containing defects;
defects;
containing defects;
Page 171 of 246
propensities;
systems;
Page 172 of 246
558.
Page 173 of 246
Page 174 of 246
propensities;
foreseeable users;
Page 175 of 246
ensure that
systems.
559.
560.
of the defect.
561.
Page 176 of 246
related expenses.
COUNT 37
STRICT LIABILITY AS TO NIBCO
562.
563.
Page 177 of 246
564.
565.
566.
567.
delivered it.
568.
569.
570.
571.
Page 178 of 246
572.
573.
above.
574.
575.
576.
Page 179 of 246
577.
578.
579.
580.
of the defect.
581.
related expenses.
Page 180 of 246
demands:
COUNT 38
NIBCO ON BEHALF OF FLORIDA SUBCLASS, ONLY
582.
583.
584.
Page 181 of 246
585.
person or activity.
Florida Statutes.
586.
587.
588.
Page 182 of 246
589.
d. actual damages;
statute;
COUNT 39
BREACH OF STATUTORY WARRANTY AS TO NIBCO ON BEHALF OF FLORIDA
SUBCLASS, ONLY
590.
591.
Page 183 of 246
592.
c. For a period of 3 years from the date of completion of construction of a
only one unit.
d. For a period of 1 year after completion of all construction, a warranty as to all
593.
and common areas.
594.
595.
and Class Members.
596.
597.
Page 184 of 246
598.
of the defect.
599.
related expenses.
600.
Page 185 of 246
COUNT 40
NIBCO ON BEHALF OF FLORIDA SUBCLASS, ONLY
601.
602.
603.
604.
Page 186 of 246
605.
606.
607.
of the defect.
608.
expenses.
Page 187 of 246
609.
COUNT 41
NEGLIGENCE AS TO SPEARS
610.
153 and 155-171, as if fully set forth herein.
611.
Page 188 of 246
the following:
Page 189 of 246
systems;
containing defects;
defects;
containing defects;
Page 190 of 246
propensities;
systems;
Page 191 of 246
612.
Page 192 of 246
Page 193 of 246
propensities;
foreseeable users;
Page 194 of 246
ensure that
systems.
613.
614.
of the defect.
615.
Page 195 of 246
related expenses.
COUNT42
STRICT LIABILITY AS TO SPEARS
616.
617.
Page 196 of 246
618.
619.
620.
621.
delivered it.
622.
623.
624.
625.
Page 197 of 246
626.
627.
above.
628.
629.
630.
Page 198 of 246
631.
632.
633.
634.
of the defect.
635.
related expenses.
Page 199 of 246
demands:
COUNT 43
SPEARS ON BEHALF OF FLORIDA SUBCLASS, ONLY
636.
637.
638.
Page 200 of 246
639.
person or activity.
Florida Statutes.
640.
641.
642.
Page 201 of 246
643.
d. actual damages;
statute;
COUNT 44
BREACH OF STATUTORY WARRANTY AS TO SPEARS ON BEHALF OF FLORIDA
SUBCLASS, ONLY
644.
645.
Page 202 of 246
646.
only one unit.
647.
and common areas.
648.
649.
and Class Members.
650.
651.
Page 203 of 246
652.
of the defect.
653.
related expenses.
654.
Page 204 of 246
COUNT 45
SPEARS ON BEHALF OF FLORIDA SUBCLASS, ONLY
655.
656.
657.
658.
Page 205 of 246
659.
660.
661.
of the defect.
662.
expenses.
Page 206 of 246
663.
COUNT 46
NEGLIGENCE AS HD SUPPLY AND HD SUPPLY WATERWORKS
664.
665.
Defendants owed a duty to Plaintiffs to exercise reasonable care to test, inspect,
market, distribute and sell Blazemaster CPVC pipe and its constituent parts properly, and to
adequately warn of their failure to do the same. Specifically, Defendants had a duty to ensure
that its Blazemaster CPVC products were: a) compatible with ABF steel pipes in fire suppression
systems so that the resin in the Blazemaster CPVC pipes did not break down causing ESC; and
Page 207 of 246
b) compatible with common construction materials like pesticides, joint compound, adhesives
and fire retardants so that the resin in the Blazemaster CPVC pipes did not break down causing
ESC, and to adequately warn of its failure to do the same. Defendants’ duty included, but was
a) properly inspecting its Blazemaster CPVC pipes so that they were compatible
b) properly testing its Blazemaster CPVC pipes so that they were compatible with
c) properly marketing its Blazemaster CPVC pipes so that they were compatible
d) adequately warning that its Blazemaster CPVC pipes were incompatible with
e) properly inspecting its Blazemaster CPVC pipes so that they were compatible
f) properly testing its Blazemaster CPVC pipes so that they were compatible with
g) adequately warning that its Blazemaster CPVC pipes were incompatible with an
systems;
h) using reasonable care in the distribution of its Blazemaster CPVC pipes to
Page 208 of 246
i) using reasonable care in the sale of its Blazemaster CPVC pipes to prevent it
j) using reasonable care in the supplying of the Blazemaster CPVC pipes to
k) adequately instructing Plaintiffs and Class Members of the defects associated
l) recalling or otherwise notifying users at the earliest date that it became known
n) not misrepresenting that its Blazemaster CPVC pipes were safe for their
pipes;
p) not distributing, delivering, and/or supplying its Blazemaster CPVC pipes in a
q) not concealing information from Plaintiffs and Class Members regarding reports
r) not concealing or misrepresenting information from Plaintiffs and Class
Page 209 of 246
s) otherwise exercise reasonable care in the testing, inspection, marketing, selling
and distribution of its Blazemaster CPVC pipes to ensure that it was compatible
with common construction materials like pesticides, joint compound, adhesives
and fire retardants; and,
t) otherwise exercise reasonable care in the testing, inspection, marketing, selling
and distribution of its Blazemaster CPVC pipes in conjunction with ABF steel
pipes so as not to cause ESC in fire suppression systems.
666.
testing, inspecting, marketing, distributing and sales of its Blazemaster CPVC pipe and its
constituent parts properly, and to adequately warn of its failure to do the same. Specifically,
Defendants breached their duty to ensure that its Blazemaster CPVC products were: a)
compatible with ABF steel pipes containing a antimicrobial that did not break down the resin in
Defendant’s Blazemaster CPVC pipes and cause ESC; and b) compatible with common
construction materials like pesticides, joint compound, adhesives and fire retardants so that the
resin in Defendants’ Blazemaster CPVC pipes did not break down causing ESC, and to
adequately warn of its failure to do the same. Defendants’ breach of its duty included, but was
a) failing to properly inspect its Blazemaster CPVC pipes so that they were
systems;
Page 210 of 246
b) failing to properly test its Blazemaster CPVC pipes so that they were
systems;
c) failing to properly market its Blazemaster CPVC pipes so that they were
systems;
d) failing to properly adequately warn that its Blazemaster CPVC pipes were
systems;
e) failing to properly inspect its Blazemaster CPVC pipes so that they were
f) failing to properly test its Blazemaster CPVC pipes so that they were
g) failing to properly adequately warn that its Blazemaster CPVC pipes were
h) failing to properly use reasonable care in the distribution of its Blazemaster
i) failing to properly use reasonable care in the sale of its Blazemaster CPVC
Page 211 of 246
j) failing to properly use reasonable care in the supplying of the Blazemaster
k) failing to properly adequately instruct Plaintiffs and Class Members of the
l) failing to recall or otherwise notify users at the earliest date that it became
n) misrepresenting that its Blazemaster CPVC pipes were safe for their intended
pipes;
p) distributing, delivering, and/or supplying its Blazemaster CPVC pipes in a
q) concealing information from Plaintiffs and Class Members regarding reports of
r) concealing or misrepresenting information from Plaintiffs and Class Members
systems;
Page 212 of 246
s) failing to otherwise exercising reasonable care in the design, manufacturing,
t) failing to otherwise exercising reasonable care in the design, manufacturing,
systems.
667.
668.
of the defect.
669.
Page 213 of 246
COUNT 47
STRICT LIABILITY AS TO HD SUPPLY AND HD SUPPLY WATERWORKS
670.
671.
At all times relevant hereto, Defendants were in the business of distributing,
selling, delivering, supplying, inspecting, marketing, and/or selling Blazemaster CPVC pipe for
sale to the general public.
672.
Members was placed by Defendants in the stream of commerce.
673.
Page 214 of 246
674.
675.
CPVC pipe was in substantially the same condition it was when Defendant sold and/or delivered
it.
676.
manner consistent with the uses intended by, or known to Defendants, and in accordance with
the Defendants’ directions and instructions.
677.
678.
679.
Page 215 of 246
680.
681.
described above.
682.
683.
CPVC pipe.
684.
Page 216 of 246
685.
686.
687.
Class Members.
688.
of the defect.
689.
Page 217 of 246
demands:
COUNT 48
HD SUPPLY AND HD SUPPLY WATERWORKS ON BEHALF OF FLORIDA
SUBCLASS, ONLY
690.
153 and 155-171as if fully set forth herein.
691.
692.
Page 218 of 246
693.
person or activity.
694.
695.
696.
Page 219 of 246
697.
d. actual damages;
statute;
COUNT 49
BREACH OF STATUTORY WARRANTY AS TO HD SUPPLY AND HD SUPPLY
WATERWORKS ON BEHALF OF FLORIDA SUBCLASS, ONLY
698.
699.
Page 220 of 246
700.
only one unit.
701.
and common areas.
702.
703.
and Class Members.
704.
705.
CPVC pipes it supplied are incompatible with common construction materials like pesticides,
Page 221 of 246
706.
of the defect.
707.
708.
Page 222 of 246
COUNT 50
HD SUPPLY AND HD SUPPLY WATERWORKS ON BEHALF OF FLORIDA
SUBCLASS, ONLY
709.
710.
711.
712.
Page 223 of 246
work properly.
713.
Code and Florida Fire Prevention Code by supplying defective Blazemaster CPVC pipes that
were incompatible with ABF steel pipe and common construction materials as set forth herein,
causing ESC on the Blazemaster CPVC pipes, causing Plaintiffs and Class Members fire
suppression systems to fail.
714.
715.
of the defect.
716.
Page 224 of 246
717.
Defendants knew or should have known that its wrongful acts and omissions
COUNT 51
NEGLIGENCE AS TO ATKORE
718.
All Plaintiffs adopt and restate paragraphs 1-16, 76-90, 97-98, 150-151, 153,
and 156-171 as if fully set forth herein.
719.
design, test, inspect, market, distribute and sell its Allied ABF steel pipe and its constituent parts
Page 225 of 246
properly, and to adequately warn of its failure to do the same. Atkore’s duty included, but was
a) properly designing its ABF steel pipes so that the ABF pipes were compatible
systems;
b) properly manufacturing its ABF steel pipes so that the ABF pipes were
c) properly inspecting its ABF steel pipes so that the ABF pipes were compatible
systems;
d) properly testing its ABF steel pipes so that the ABF pipes were compatible with
Blazemaster CPVC pipes so as not to cause ESC in fire suppression systems;
e) properly marketing its ABF steel pipes so that the ABF pipes were compatible
systems;
f) adequately warning that its ABF steel pipes were incompatible with
g) properly designing its ABF steel pipes with an antimicrobial that was
Page 226 of 246
h) properly manufacturing its ABF steel pipes with an antimicrobial that was
i) properly inspecting its ABF steel pipes to determine if the antimicrobial was
j) properly testing its ABF steel pipes to determine if the antimicrobial was
k) adequately warning that its ABF steel pipes contained an antimicrobial that was
incompatible with Blazemaster CPVC pipes and caused ESC in fire suppression
systems;
l) using reasonable care in the distribution of ABF steel pipes to prevent it from
containing defects;
m) using reasonable care in the sale of ABF steep pipes to prevent it from
containing defects;
n) using reasonable care in the supplying of the ABF steel pipes to prevent it from
containing defects;
with ABF steel pipes;
p) properly selecting the antimicrobial to be compatible with Blazemaster CPVC
pipes;
Page 227 of 246
that the ABF was defective;
s) not misrepresenting that the ABF steel pipe was safe for its intended purpose
when, in fact, it was not;
t) disclosing that ABF steel pipe was incompatible with Blazemaster CPVC pipe;
u) not manufacturing ABF steel pipe in a manner which was dangerous to its
v) not designing ABF steel pipe in a manner which was dangerous to its intended
w) not distributing, delivering, and/or supplying ABF steel pipe in a manner which
of ABF steel pipe’s adverse effects on fire suppression systems;
steel pipe when combined with Blazemaster CPVC pipe for fire suppression
systems; and,
inspection, marketing, selling and distribution of ABF in conjunction with
Blazemaster CPVC pipes so as not to cause ESC in fire suppression systems.
Page 228 of 246
720.
manufacturing, designing, testing, inspecting, marketing, distributing and sales of its Allied ABF
steel pipe and its constituent parts properly, and to adequately warn of its failure to do the same.
Atkore’s breaches of its duty included, but was not limited to the following:
a) failing to properly design its ABF steel pipes so that the ABF pipes were
b) failing to properly manufacture its ABF steel pipes so that the ABF pipes were
c) failing to properly inspect its ABF steel pipes so that the ABF pipes were
d) failing to properly test its ABF steel pipes so that the ABF pipes were
e) failing to properly market its ABF steel pipes so that the ABF pipes were
f) failing to adequately warn that its ABF steel pipes were incompatible with
Page 229 of 246
g) failing to properly design its ABF steel pipes with an antimicrobial that was
h) failing to properly manufacture its ABF steel pipes with an antimicrobial that
i) failing to properly inspect its ABF steel pipes to determine if the antimicrobial
j) failing to properly test its ABF steel pipes to determine if the antimicrobial was
k) failing to adequately warn that its ABF steel pipes contained an antimicrobial
that was incompatible with Blazemaster CPVC pipes and caused ESC in fire
l) failing to use reasonable care in the distribution of ABF steel pipes to prevent it
m) failing to use reasonable care in the sale of ABF steep pipes to prevent it from
containing defects;
n) failing to use reasonable care in the supplying of the ABF steel pipes to prevent
it from containing defects;
o) failing to adequately instruct Plaintiffs and Class Members of the defects
associated with ABF steel pipes;
Page 230 of 246
p) failing to properly select the antimicrobial to be compatible with Blazemaster
CPVC pipes;
known that the ABF was defective;
s) misrepresenting that ABF steel pipe was safe for its intended purpose when, in
fact, it was not;
t) failing to disclose that ABF steel pipe was incompatible with Blazemaster
CPVC pipe;
u) manufacturing ABF steel pipe in a manner which was dangerous to its intended
v) designing ABF steel pipe in a manner which was dangerous to its intended and
foreseeable users;
w) distributing, delivering, and/or supplying ABF steel pipe in a manner which was
ABF steel pipe’s adverse effects on fire suppression systems;
when combined with Blazemaster CPVC pipe for fire suppression systems; and,
Page 231 of 246
z) otherwise failing to exercise reasonable care in the design, manufacturing,
testing, inspection, marketing, selling and distribution of ABF in conjunction
systems.
721.
722.
of the defect.
723.
related expenses.
Page 232 of 246
COUNT 52
STRICT LIABILITY AS TO ATKORE
724.
725.
ABF steel pipe for sale to the general public.
726.
The ABF steel pipe, including that installed in Plaintiffs and Class Members
were placed by Defendant in the stream of commerce.
727.
Defendant knew that the subject ABF steel pipe would be used without
728.
Defendant intended that the ABF steel pipe reach the ultimate consumer, such
as Plaintiffs and Class Members, and it indeed reached Plaintiffs and Class Members when it was
Page 233 of 246
729.
When installed in the Plaintiffs and Class Members’ buildings, the ABF steel
pipe was in substantially the same condition it was when Defendants manufactured, sold, and/or
delivered it.
730.
731.
The subject ABF steel pipe was not misused or altered by any third parties,
732.
The ABF steel pipe was defectively manufactured, designed, inspected, tested,
733.
The design defect was in designing the ABF steel pipe with an antimicrobial
incompatible with and that breaks down the resin in Blazemaster CPVC pipes causing ESC in
the CPVC pipes that cause Plaintiffs’ fire suppression systems to leak, lose pressure and cause
property damage and create a life-safety issue because the fire suppression system will not work
properly.
734.
The manufacturing defect in the ABF steel pipe was in improperly selecting,
testing, inspecting, assembling, and using an antimicrobial incompatible with and that breaks
down the resin in Blazemaster CPVC pipes causing ESC in the Blazemaster CPVC pipes that
cause Plaintiffs’ fire suppression systems to leak, lose pressure, cause property damage and
create a life-safety issue because the fire suppression system will not work properly.
735.
The ABF steel pipe was also defective because it was improperly distributed,
above.
Page 234 of 246
736.
distributing, and selling of the ABF steel pipe rendered it unsafe and unreasonably dangerous for
its intended use and to the Plaintiffs and Class Members.
737.
The ABF steel pipe is also defective and unreasonably dangerous because
Defendants failed to adequately warn and instruct the Plaintiffs and Class Members of the
defective design, inspection, testing, manufacturing, marketing, and selling of the ABF steel
pipe.
738.
propensities and defective condition of the ABF steel pipe, nor could Plaintiffs and Class
Members, acting as a reasonably prudent people discover that Defendant’s ABF steel pipe was
defective, as set forth herein, or perceive its danger.
739.
Defendant’s ABF steel pipe was much more dangerous and harmful than
expected by the average consumer and by Plaintiffs and Class Members.
740.
Defendant’s ABF steel pipe benefit to Plaintiffs and Class Members, if any, was
741.
The defects ABF steel pipe, as well as Defendant’s failure to adequately warn
the Plaintiffs and Class Members of the defects rendered the ABF steel pipe unreasonably
dangerous and was the direct and proximate cause of damages to Plaintiffs and Class Members.
742.
Page 235 of 246
of the defect.
743.
related expenses.
WHEREFORE Plaintiff, on behalf of all others similarly situated and the Class Members, demand:
COUNT 53
Page 236 of 246
FLORIDA DECEPTIVE AND UNFAIR PRACTICES ACT “FDUTPA” AS TO ATKORE
744.
745.
746.
747.
person or activity.
The advertising, soliciting, providing, offering, or distributing of ABF steel pipe by Defendant to
Florida Statutes.
748.
Page 237 of 246
of Allied’s trade or commerce pursuant to section 501.204, Florida Statutes.
749.
Defendant violate FDUTPA. Plaintiffs and Class Members have suffered actual damage for
750.
751.
d. actual damages;
statute;
Page 238 of 246
COUNT 54
BREACH OF STATUTORY WARRANTY AS TO ATKORE
752.
All Plaintiffs adopt and restate paragraphs1-16, 76-90, 97-98, 150-151, 153, and
753.
Atkore is a supplier of ABF steel pipes.
754.
Pursuant to Florida Statutes section 718.203(2), Allied is deemed to have
granted Plaintiffs and Class Members an implied warranty of fitness as to the material it supplied
as follows:
only one unit.
755.
and common areas.
756.
757.
and Class Members.
Page 239 of 246
758.
supplied are defective in that they contain an antimicrobial that breaks down the resin in
Blazemaster CPVC pipes causing ESC in the Blazemaster CPVC pipes, which causes Plaintiffs’
759.
supplied have a manufacturing defect due to Defendant improperly selecting, testing, inspecting,
assembling, and using an antimicrobial incompatible with and that breaks down the resin in
Blazemaster CPVC pipes causing ESC in the Blazemaster CPVC pipes that cause Plaintiffs’ fire
760.
of the defect.
761.
Page 240 of 246
related expenses.
762.
demand:
COUNT 55
ATKORE ON BEHALF OF FLORIDA SUBCLASS, ONLY
763.
and 156-171as if fully set forth herein.
Page 241 of 246
764.
765.
766.
sections of the Florida Building Code and Florida Fire Prevention Code by supplying ABF steel
pipe containing an antimicrobial that was incompatible with Blazemaster CPVC pipes and
caused ESC on the Blazemaster pipes, causing Plaintiffs and Class Members fire suppression
systems to fail.
767.
Defendant knew or should have known that it violated the Florida Building
Code and Florida Fire Prevention Code by supplying ABF steel pipe containing an antimicrobial
that was incompatible with Blazemaster CPVC pipes and caused ESC on the Blazemaster pipes,
causing Plaintiffs and Class Members fire suppression systems to fail.
768.
Defendant actively concealed that its products met the Florida Building Code
buildings. 9
9
Building Code approves the plans;” however, Defendant should not be able to benefit from its
Page 242 of 246
769.
Defendant actively concealed that its product in conjunction with CPVC pipe
770.
Plaintiffs and Class Members have suffered damages to property other than
property that is subject to permits, plans and inspections.
771.
of the defect.
772.
related expenses.
773.
10
inspections under the code;” however, Defendant should not be able to benefit from its conduct
Page 243 of 246
COUNT 56
CIVIL CONSPIRACY AGAINST ALLIED, TYCO, TYCO FIRE, LUBRIZOL,
LUBRIZOL CORP. & ATKORE
774.
All Plaintiffs adopt and restate paragraphs 1-16, 17-43, 76-171 as if fully set
forth herein.
775.
An agreement between two or more parties, Defendants Allied, Tyco, Tyco
Fire, Lubrizol, Lubrizol Corp. and Atkore under the control of Defendants Allied, Atkore,
Lubrizol and Lubrizol Corp. and with the assistance and agreement of Tyco and Tyco Fire
existed whereby the parties agreed to perform an unlawful act, to wit: defrauding the Plaintiffs
and Class Members in this matter regarding the use of ABF steel pipes with Blazemaster CPVC
pipes when the aforementioned Defendants knew that the combination of the antimicrobial in the
ABF steel pipe broke down the resin the Blazemaster CPVC pipe causing ESC and Plaintiffs and
Page 244 of 246
Class Members fire suppression systems to leak and fail, yet Defendants hid that information
from Plaintiffs and Class Members as set forth herein.
776.
Defendants Allied, Tyco, Tyco Fire, Lubrizol, Lubrizol Corp. and Atkore
overtly acted in pursuance of the conspiracy, as set forth herein, and did in fact defraud the
Plaintiffs and Class Members in this matter via their acts and omissions, as set forth herein.
777.
As a direct and proximate cause of Defendants Allied, Tyco, Tyco Fire,
Lubrizol, Lubrizol Corp. and Atkore’s acts and omissions, Plaintiffs and Class Members have
incurred economic damages and are entitled to recover economic damages.
778.
of the defect.
779.
defective ABF and Blazemaster CPVC in the building; permanent diminution in value of the
home; and other related expenses.
780.
Defendants knew or should have known that its wrongful acts and omissions
Page 245 of 246
DEMAND FOR JURY TRIAL
Plaintiffs demand a trial by jury of all issues so triable.
Dated: November 16, 2015.
SIEGFRIED, RIVERA, HYMAN, LERNER,
DE LA TORRE, MARS & SOBEL, P.A.
Attorneys for Plaintiffs
201 Alhambra Circle, Suite 1102
Coral Gables, Florida 33134
Phone: (305) 442-3334
Fax: (305) 443-3292
Email: [email protected]
[email protected]
[email protected]
By: /s/ Steven M. Siegfried
Steven M. Siegfried, Esq.
Florida Bar Number: 208851
Page 246 of 246
Stuart Sobel, Esq.
Florida Bar Number:
Alton C. Hale, Jr., Esq.
COLSON HICKS EIDSON GONZALEZ
MARTINEZ KALBAC & KANE
Attorneys for Plaintiffs
255 Alhambra Circle, PH
Coral Gables, Florida 33134
Phone: (305) 476-7400
Fax: (305) 476-7444
Email: [email protected]
[email protected]
By: /s/ Ervin A. Gonzalez
Ervin A. Gonzalez, Esq.
Patrick S. Montoya, Esq.
Florida Bar Number:524441

Wind Condominium v. Allied Tube

Transcription

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