Hints That you Might Have a Subrogation Case

Anytime that the failure of a product causes personal injury or property damage, there is a possibility that an insurance carrier could recoup its expenditures from the manufacturer, installer or servicer.  However, not all product failures result in grounds for subrogation claims.  Sometimes products “wear out” and when they do, it can be due to the expiration of the useful life of the product.  Case in point: water heaters.  Depending on who you talk to, the useful life of a residential water heater can be anywhere between five and ten years.  Then there are those more expensive models that can last between 10 and 15 years.  The life of a product has to be taken into consideration, usually during the investigation phase, so as to make sure that the subrogation case will not be summarily dismissed if the case goes to court.  In the case of fires, both structural and vehicular, where the cause was electrical or mechanical malfunction; the key here is whether the equipment was recently installed or serviced by an outside service company or individual.  In the case of existing equipment, the question of maintenance will arise and become a key piece of information.  If the equipment has been allowed to go unmaintained, then it might be possible for a manufacturer or installer to argue that the operating condition of the equipment was beyond their control and they cannot be held liable.   The same thing applies to situations involving water damage.  Water damage can occur from leaking refrigerators, dishwashers, washing machines, and any other piece of equipment that uses water in the process. 

There are also situations that arise where subrogation is not so obvious.  Assuming that an employer is operating a safe workplace, on the job injuries can be caused by the operation of equipment that is not properly guarded.  OSHA regulations are in effect that prohibit the operation of rotating or moving equipment without proper guarding.  Such equipment includes, conveyors, wire drawing machines, drill presses, milling machines, and stamping machines.  In many instances, rotating equipment is operated with the use of pulleys or flywheels.  These components have to be matched to the rotational speed of the machine.  If the machine is operated at a speed greater than the rated speed of the flywheel, then it is possible for the flywheel to fail.  If the flywheel fails under normal loading and within its expected life, then subrogation is possible.  However, if someone in the plant has increased the rotational speed of operation beyond load limits, then subrogation is most likely not possible.  It should be noted that many smaller pulleys are adjustable and as a consequence, rotational speed can be increased to a dangerous level.  In addition failures from hydraulic hoses can occur where the operator is sprayed with hot oil.  If the hose is routinely replaced as a maintenance item but, fails during its service lifetime, then it can be argued that the hose was defective and likely warrants a subrogation claim against the manufacturer.  Similarly, pressure vessels can EXPLODE and cause property damage and serious injury.  Vessels containing air, water, oil, or any other fluid under PRESSURE must be certified for the service.  If the vessel failed during its expected life, was not over-pressurized, maintained by minimizing corrosion, and inspected on a regular basis; then, subrogation against the manufacturer is a possibility.  However, if the vessel was manufactured in house, by the insured, then any injured employees might have a design defect claim against the employer.               

Possible ProFlo Toilet Tank Defect

It has been brought to our attention that toilet tanks made under the ProFlo brand have been cracking after installation and causing significant water damage.  We were made aware of the problem when a plumbing company located in Florida noticed our article on Vortens toilet tanks and subsequently contacted us and advised us of a similar problem with ProFlo tanks.  The company that notified us also provided photographs of three separate tank failures which are shown below.  After researching ProFlo, it was learned that Ferguson Enterprises owns and distributes the brand in the United States.  Ferguson Enterprises is also based in Newport News, Virginia.  The intent of this notice is to determine if there is widespread experience with tank failures and request that those experiencing the failures comment on their situations so as to make the defect common knowledge and possibly result in a recall.     

Cracked ProFlo toilet tank
Second instance encountered where the toilet tank cracked
Third cracked tank

How NOT to Install a Water Filter

We recently investigated the cause of failure of a water filtration unit that cracked and caused an extensive amount of water damage to residential dwelling.  During the course of the investigation, it was determined that a whole house water filter unit had been installed in a cabinet beneath the kitchen sink.  This location is perfectly acceptable as were the piping connections that were made to connect the unit to the cold water supply line.  However, when the upper and lower halves were assembled, the pieces were put together with pipe joint compound.  This is absolutely unnecessary and amounts to an improper installation.  The filtration unit comes with an O-ring that is intended to fit between the halves and seals any gaps while preventing water leakage.  Although the unit failed as a result of over pressurization,  the presence of pipe joint compound indicated that the filtration unit had been improperly maintained.  The failure of the unit is shown in the photographs below.

What Happened to Water and Gas Lines?

By now everyone has heard about the massive devastation caused by both hurricanes Harvey and Irma.  Nightly news reports have been showing us how much damage can be caused by hurricane force winds not to mention the water damage caused by the flooding rain.  Much of the reporting has been focused on people that have been displaced as a result of the storms.  But, not much if anything has been said about the hidden damage to the infrastructure.  Yes, we are all aware of damaged roads and downed power lines.  But what about the damage to the water supply, storm drains and sewer systems?  Because of all the debris and mud, flowing water will carry those solid substances through pipelines to pumps.  The impact can cause damage to impellers, valves, and filters.  Debris can also become trapped inside pipelines where the pipelines bend causing a backup, if not rupture, and possibly necessitating the replacement of line segments.  Before potable water service can be restored, all contaminants will have to be removed and the flow of water through drainage systems will have to be confirmed before the public can be allowed access.   What about natural gas service?  Gas lines can either be routed above or below ground.  The main problem to consider is sink holes.  This is especially true in Florida.  Unsupported gas or water lines can fail if the ground beneath collapses to form a large crater.  With as much as rain as Texas and Florida got during the storms, it would be prudent for utility engineers to be especially mindful of the potential hazards that could develop if sink holes start appearing.

 

Another Flushmate Recall

Back in June of 2012, we blogged about a recall from Flushmate that involved exploding toilet tanks. That recall involved 2.2 million pressure assisted flushing systems where the pressurized tank could fail and cause the porcelain toilet tank to break apart in an explosion-like manner. Since that recall was made, Flushmate has continued to have problems with its products. As a result Flushmate has issued another recall for approximately 351,000 Flushmate III pressure assisted flushing system tanks. The problem is still the same. That is, the tanks fail at the weld seam and release water under whatever supply pressure is available. The pressure is usually enough to break a porcelain toilet tank and cause substantial water damage to property. The destruction of the porcelain tank can also cause serious personal injury.

Attorneys and Expert’s Depositions

Just this past week, I was scheduled to give a deposition in another of my investigated cases.  In this particular case, the issue was centered around whether a plumber was negligent in installing a 3″ pvc water supply line. Approximately 9 months after the line was installed, a coupling failed resulting in water damage to a healthcare facility.  The case is now coming full circle by the taking of witness statements by the attorneys for each side.  Answering the opposing attorney’s questions is not a problem as I am usually well prepared.  The problems arise when the opposing attorney doesn’t want to pay the expert’s bill for the deposition. This was exactly the situation I faced which, I might add, was not the first time. However, due to previous experience, I have learned to insist on receiving payment before testifying. The alternative is to leave the meeting without giving any statements. Those expert witnesses that have been in practice for seve Read more of this post

The problem with PEX Pipe

Cross-linked polyethylene or PEX pipe has been on the plumbing market for a several years and has been accepted by most plumbers as an acceptable substitute for copper piping in potable water systems.  There are at least two methods by which PEX pipe is manufactured and depending on the manufacturer, theirs is the best way.  However, regardless of the method of manufacture, PEX pipe has a couple of drawbacks.  PEX pipe is subject to degradation by exposure to chlorine, ultraviolate radiation, and rough handling.  I bring this up because I am presently working on a case involving extensive water damage due to a leaky PEX pipe.  It seems that the pipe cracked longitudinally and released a great deal of water into the crawl space causing damage to the subflooring and consequently, the interior flooring as well.  This scenario isn’t unusual. But, after the hot water line was repaired, a second crack developed in the same line, only days after the first crack was replaced.  To make matters worse, a short time later, a third crack occurred, again, in the same hot water line.  It almost seems that the fact that a hot waterline is involved has something to do with the failures and there are accounts on-line of people having similar problems.  However, according to the manufacturer, as long as the conditions of the water do not exceed 80 psi and 140 deg, the piping shouldn’t be affected.  In addition, as long as the chlorine level is below 3500 parts per million, again, the piping should not be affected.  I’m not sure how accurate that information is since it tends to conflict with the pressure and temperature information written on the exterior pipe wall.  As for the chlorine level,  I have found reports stating that chlorine will continually degrade PEX piping, the greater the concentration, the shorter the service life.  I have also found that the failures affecting PEX pipe currently are similar to the type of failures that were affecting polybutylene pipe, for which there was a massive recall.  As far as I can tell, there are currently no recalls for  PEX pipe.

LG and the Problems With Their Washing Machines

Our website was recently updated with a story about the problem that we have encountered with no apparent explanation. LG front loading washing machines were forcing the loading doors open and spilling their contents. The result was water damage to floors, carpeting and furnishings not to mention ceilings if the machine was located in an upstairs laundry room. Over the course of the last three years, reports of three malfunctioning machines were received and examined. However, on each occasion, whenever the machines were tested, each operated perfectly. So, the problem was never isolated until in the last incident, the water level pressure switch was isolated by a service technician and replaced. As a precautionary measure, the water valves were also replaced. The problem appeared to be that the switch would not break the water valve circuit when the wash drum was filled with the proper quantity of water. When the pressure switch finally broke the circuit and the overfilled drum began to spin, the amount of water in the drum exerted enough force against the loading door that it was forced open causing the contents and water spill out onto the floor. After doing some research, no recalls have been found regarding this particular problem. However, what was found were a number of complaints from consumers. It seems that people who have purchased LG machines have experienced noisy drum bearings, mold and mildew odor, and cleaning issues, amoung other things. Complaints about LG machines can be found searching “LG washing machines” and clicking on the Consumer Affairs complaints webpage. One of the primary areas of consumer frustration that a reader senses is the the lack of help from LG about their particular problem. Based on the number of complaints, the tone of the complaints and the experience with three of their machines, LG has problems that it needs to address as soon as possible.

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