On March 23, a federal court in Connecticut dismissed a lawsuit that alleged that defective flexible CSST gas tubing was the cause of a fire that damaged a residence. The court invoked Connecticut’s 10-year statute of repose to dismiss the suit. The case is State Farm Fire and Casualty Company v. Omega Flex Inc.
Flexible corrugated stainless-steel tubing (CSST) has been used since the 1980s as a safe and cost-effective alternative to rigid steel pipe for gas systems inside buildings. It requires few — if any — fittings and can flex to accommodate changes in direction. Thin Walls Mechanical Steel Pipe
However, the thin walls that allow CSST to be flexible and convenient to install also render it vulnerable to a unique hazard — lightning strikes. In short, a lightning strike near a house can energize the CSST inside. If the CSST is sufficiently close to another conductor inside the house, a spark can be generated as the electrical current tries to move from the CSST into the other conductor. Such a spark can burn a hole in the thin-walled CSST. The resulting gas leak can then be ignited by the same spark, effectively creating a small torch that then ignites other combustibles in the home. There is rarely an explosion in these circumstances, since the escaping gas is ignited before there is time for it to accumulate in the structure.
With this hazard in mind, NFPA 54 was amended in 1988 to provide for the bonding and grounding of CSST systems. This code provision has since been amended to strengthen the bonding and grounding requirement.
That has not stopped a steady flow of litigation on the issue, including a national class action suit against CSST manufacturers (for more on this topic, see BPN’s December 2006 and May 2007 issues) and individual lawsuits claiming that the product is defective (for more, see BPN’s December 2010 and February 2015 issues). Branch Line
The Connecticut suit arose from a 2018 fire at the residence of Robert and Kristine Paterson in Old Lyme, Connecticut. Their house had been built in 1999, and a 500-gallon propane tank was installed in 2000. The tank was connected to a pool heater and a backup generator for the house. At the time of the fire, there was also a capped line that was intended for a gas grill.
The grill line, with propane pressure at 10 psi, ran underground from the tank to a branch line for the Patersons’ hot tub. That line then continued into the basement of the house, transitioning at that point to CSST. It ran through the basement, still carrying 10 psi pressure, exiting at a patio where a second stage regulator reduced the pressure for use by a grill. At the time of the fire, the line was capped at the outlet of the second stage regulator and there was no grill on the patio. Loud Crash
At about 4 a.m. on May 23, 2018, Robert Paterson was awakened by the loud crash of a lightning strike near the home. Not long after that, the Patersons smelled smoke and the smoke alarms began to sound. They investigated and saw smoke coming from the basement. They observed flames coming into the first floor through the HVAC distribution ports. They evacuated the house and the fire department responded.
After the fire was extinguished, investigators found a small hole in the CSST grill line in the basement. It was undisputed that the lightning strike had energized the CSST line, resulting in arcing that caused the hole.
State Farm Fire and Casualty, the property insurer for the home, paid for the fire damage and then sued Omega Flex, the manufacturer of the CSST used in the home, to recover its payment. It asserted that the CSST was defective and that the warnings that accompanied it were inadequate. Omega Flex denied these allegations and claimed that the CSST was not properly bonded and grounded. It also claimed that the 10 psi pressurization of the line inside the basement exceeded permissible pressure for CSST. Useful Life
Finally, Omega Flex invoked Connecticut’s 10-year statute of repose. Such statutes are common in the United States, although their provisions can vary widely from state to state. In short, these statutes (not unlike a statute of limitations) limit the amount of time in which a product liability action can be asserted against a manufacturer or distributor.
In Connecticut, a product liability suit must be brought within 10 years of the date the manufacturer or distributor “last parted with possession or control of the product.” The Connecticut statute also contains an exception for a “claimant who can prove that the harm occurred during the useful safe life of the product.”
Omega Flex filed a motion for summary judgment. It argued that the incident occurred 18 years after the installation of the CSST in the Paterson basement. Addressing the exception in the statute, it added that State Farm had failed to present any evidence to suggest that the Paterson CSST was within its useful life at the time the suit was filed. State Farm responded with an affidavit from an expert who summarily stated, without citing any evidence or support, that the useful life of CSST “is in excess of 20 years.”
The court excluded the opinion of the State Farm expert on useful life because the expert opinion was not timely disclosed in accordance with the court’s scheduling order. The court added that, in any event, the opinion did not cite any evidence or support. Common Sense
The court then turned its attention to the Omega Flex motion for summary judgment. The 10-year statute of repose limitation clearly barred the State Farm suit — the CSST was installed in 2000 and the incident happened in 2018. So, the key question was whether the useful life exception would apply.
The problem for State Farm on that front was that under the terms of the stator exception, it had the burden to prove that the incident occurred within the useful life of the CSST. Since its expert on useful life was disqualified, it had no evidence on the point. The court stated the following:
“The only evidence plaintiff offers that the CSST at issue was within its useful life is the single line, presented without explanation or support, in its expert’s affidavit. As discussed above, however, the court will not be considering this line in connection with the present motion … Plaintiff has presented no evidence, expert or otherwise, that indicates the CSST in this case was within its useful safe life.”
Lacking evidence, State Farm appealed to “common sense” to support its claim that the CSST was within its useful life at the time of the incident. The court rejected this position:
“Plaintiff appealed to the common sense of the court and the jury in arguing that the product was within its useful life. But common sense does not relieve a party of its obligation to produce at least some evidence of an element of its claim in order to withstand summary judgment.”
Since State Farm had failed to produce any evidence to prove that the CSST at the Paterson home was within its useful life at the time of the incident, the court concluded that “no reasonable jury could conclude otherwise on the record before the court.” It granted the Omega Flex motion and dismissed the lawsuit
Fixed Tube Heat Exchanger David Schlee is of counsel to The McCarthy Law Firm P.C. He may be reached at david@mokpclaw.com.