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Corrugated Stainless Steel Tubing Found to Be Ordinary Building Material under Virginia’s Statute of Repose – For a Second Time

In a recent decision, the Circuit Court for Spotsylvania County, Virginia, found that OmegaFlex, a manufacturer of corrugated stainless steel tubing (CSST), which is used in residential gas supply systems, was entitled to the protection of Virginia’s statute of repose in a product liability lawsuit. The decision is significant because it is the second decision secured on behalf of OmegaFlex in Virginia proving that CSST gas piping is not within the meaning of the “equipment and machinery” exception to Virginia’s statute of repose. OmegaFlex secured its first dismissal on this issue in 2013 when the Circuit Court for the City of Richmond dismissed a product liability action filed against OmegaFlex − more than five years after its product was installed. In both actions, the courts have held that CSST gas piping is afforded the protection of Virginia’s statute of repose, thereby limiting the product liability exposure of manufacturers of CSST gas piping within the state of Virginia.

Virginia’s Statute of Repose

Virginia’s statute of repose, found at Virginia Code § 8.01-250, gives a plaintiff five years to bring a lawsuit for personal injury or property damage arising out of an improvement to real property. A statute of repose differs from a statute of limitation because a statute of repose runs from the date that services were furnished in connection with the improvement to real property as opposed to the date of injury, which usually starts the running of a statute of limitation.

In Virginia products liability litigation, the issue of whether the statute of repose applies often turns on whether the product at issue is an ordinary building material or equipment and machinery. If the court finds that the product is equipment and machinery, then the statute of repose does not bar the plaintiff’s claims against the product’s manufacturer. On the other hand, if the court finds that the product is ordinary building materials, then it is afforded protection under Virginia’s statute of repose. The issue of whether a particular product constitutes an ordinary building material has been the subject of numerous Supreme Court of Virginia decisions, which have resulted in a long list of factors that are relevant to the analysis. Nonetheless, no single characteristic or set of characteristics is determinative of whether something is − or is not − an ordinary building material.

The Decision

In its recent decision, the Spotsylvania Court determined that OmegaFlex’s TracPipe® CSST product was an ordinary building material because TracPipe (1) is fungible, (2) does not serve a function other than as a component part of a whole gas supply system and (3) was incorporated into the structure in this matter outside of OmegaFlex’s control. The Supreme Court of Virginia has found that each of these factors is indicative of an ordinary building material. The Circuit Court for the City of Richmond relied on similar factors in its previous decision, holding that CSST was an ordinary building material.

Interestingly, the Spotsylvania Court also noted that OmegaFlex’s training and installation guides were designed for the “protection of the ultimate consumer” and did not demonstrate substantial control and oversight over the installation of the TracPipe in this matter. The Supreme Court of Virginia has found substantial control and oversight is a factor that weighs in favor of finding a product is equipment and machinery.

While these decisions relate to OmegaFlex and its TracPipe product, the rationale employed by the Virginia courts in these decisions has potential application across the gas supply industry to those who manufacture and sell gas supply system components in Virginia.

© 2020 Wilson ElserNational Law Review, Volume VI, Number 292
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About this Author

Thomas M. DeMicco, Wilson Elser, Products Liability Attorney, Injury Lawsuits
Partner

Thomas DeMicco defends domestic and foreign manufacturers in product liability lawsuits on a national basis, with a focus on claims arising from fires and explosions. Tom’s extensive fire investigation experience is particularly valuable to the firm’s clients, many of which manufacture and distribute household kitchen appliances and consumer electronics. Tom began his legal career at Wilson Elser in 2001 and has established himself as a leading contributor to the firm’s Product Liability practice and he is a member of the firm's Pharmaceutical and Medical Device product...

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