Even as plumbers replace notoriously defective Kitec fittings in thousands of Las Vegas-area homes, consumers have filed a stream of new lawsuits claiming that fittings made by other companies are also failing here.
In a 2006 suit that’s still active, the maker of Kitec brass plumbing fittings provided $90 million to replumb about 32,000 Clark County homes.
The problem with the fittings is that after they were exposed to Las Vegas’s mineral-rich water from the Colorado River, the brass deteriorated and corroded in a process called dezincification. Zinc is a component of brass.
The corrosion reduced water flow and caused some leaks.
Clark County District Court Judge Timothy Williams last month extended the deadline for certain homeowners by three months, to March 31, to claim their free replumbing work.
The work is valued at $6,000 to $9,000 per home, depending on the size of the structure, and affected homeowners should take advantage of it because failure to do so would leave them with no recourse should the systems fail after the deadline, said William Coulthard, an attorney for homeowners in the case.
Information for homeowners interested in the replumbs is available at www.totalclasssolutions.com/Settlements/ .
Homeowner attorneys, in the meantime, have hit homebuilders in recent months with new defect claims covering additional home developments and plumbing fixture makers.
Coulthard’s Las Vegas firm Kemp, Jones & Coulthard is involved in some of these claims and he said they could involve as many as 130,000 homes locally – potentially dwarfing the Kitec problem if the new defect claims are proven.
Among the latest claims:
— The Anthem Highlands Community Association and the Fiesta Park Homeowners Association filed defect claims against Lennar Corp. and its divisions U.S. Home Corp. and Greystone Nevada LLC. The complaints allege problems with high zinc brass components, including Wirsbo/Uponer and Vanguard/Viega brand fittings, Red-White valves and Grundfos recirculation pumps.
— Iron Mountain development homeowners filed a claim against Lennar/U.S. Home Corp., KB Home Nevada Inc. and William Lyon Homes Inc. The complaint alleges problems with Wirsbo/Uponer fittings, Nibco, BrassCraft, Apollo, Jomar and Watts Regulator Co. valves, Wilkins pressure-reducing valves and Grundfoss recirculation pumps.
The product manufacturers named in the complaints have not yet filed responses to lawsuits over the defect claims. The lawsuits were initiated in federal court by Lennar against the homeowners and the homeowner associations.
As is typical in construction defect litigation, Lennar charged in the lawsuits that the homeowners and HOAs had presented it with notices of defects, but had refused to allow it to inspect the homes to assess their claims.
Lennar in its suits said it suspects the homeowners and HOAs, through their attorneys, will try to block it from "intrusive testing" of the homes, so it’s asking the federal court in Las Vegas for a declaration of its rights.
In another recent lawsuit, the owners of Desert Shadows Apartments, 5905 W. Charleston Blvd., and Copper Creek Apartments, 9490 Bermuda Road, filed a class-action suit on behalf of local owners of apartment complexes and commercial buildings against Uponer Inc. and other defendants.
The suit charges Uponer’s high zinc content yellow brass fittings have manufacturing and design defects and the products are further defective because they are made of improper materials or were improperly installed.
Uponer hasn’t responded to that lawsuit except to move it from Clark County District Court to federal court in Las Vegas.
Three more recent lawsuits were combined into one case last week in federal court in Las Vegas.
One was filed by homeowners against Pulte Homes, D.R. Horton Inc. and Uponer over Uponer’s Wirsbo and Uponer plumbing systems installed at Pulte’s Fulton Park condominium community and at Dr. Horton’s Paradise Falls and Twilight North developments.
That suit is proposed as a class action on behalf of all local owners of homes, homeowners associations and others.
"High zinc content brass Wirsbo and Uponer brand fittings and other attendant high zinc content brass plumbing components installed and used as part of the plumbing systems in the subject homes are corroding due to a well-known chemical reaction called dezincification," the lawsuit said.
The second of the three combined cases was a class-action filed against Carina Corp., Uponer and plumbing contractors and suppliers. The named plaintiff sued over a home on Real Quite Drive, near Bufffalo Drive and Grand Teton Drive in the Northwest Las Vegas Valley.
In that case, one of the defendants, RCR Plumbing & Mechanical Inc., filed its own complaint against Uponer charging it failed to supply Wirsbo brass fittings without defects and that it was foreseeable that "a failure of the high zinc content plumbing components would cause damages to the ultimate users."
The third lawsuit was filed by Dakota Condominium Association Inc. The Dakota has 173 units on Peachy Canyon Circle in Las Vegas, near Town Center Drive and Summerlin Parkway in Summerlin.
Uponer has denied the allegations by filing a motion for dismissal in at least one of the cases, but the court has not acted on it.
Attorneys for the homebuilders are also asking that one or more of the suits be dismissed, arguing the homeowners failed to follow the rules in Nevada’s Chapter 40 construction defect law by not specifically identifying defects, not allowing the builders reasonable access to inspect and repair the homes and failing to participate in mediation.
Claims that the Wirsbo/Uponer products are defective came as a surprise to one local plumbing firm that has used those products on about 100 homes.
Dennis Thompson, general manager of Yes! Air Conditioning and Plumbing, said in an interview Thursday that his firm replumbed some of the Kitec-fitted homes with Wirsbo/Uponer products with no problems.
In fact, other than lawsuits over Kitec and REHAU products, Thompson said he’s not aware of any more corrosion problems caused by defective plumbing components in Las Vegas.
"Since Kitec, we haven’t had any more corrosion problems out there," Thompson said.
REHAU
And in yet another plumbing case involving a different manufacturer, Coleman-Toll Limited Partnership sued REHAU Inc. this summer claiming plumbing systems at its 92-home luxury Terra Bella development were defective because of high zinc content yellow brass fittings.
Coleman-Toll said in its lawsuit that it has made repairs to about half the homes at a cost of more than $500,000 and expected to ultimately spend more than $1 million repairing the majority of the homes.
"Defendants breached the implied warranty of merchantability and fitness for a particular purpose," the lawsuit said.
The suit included a report from Corrosion and Materials Consultancy Inc., saying "Active and extensive dezincification corrosion was found on 14 REHAU-brand yellow brass plumbing fittings and one Watts-brand regulator harvested from three homes at the Terra Bella development."
"Classical features of dezincification corrosion attack — seepage with cream-white exuded products — were noticed on plumbing components in four further homes," the report said. "The plumbing components are about six years old. This time period is significantly less than the expected useful life of a plumbing system."
Attorneys for REHAU, however, asked that the case be dismissed, as Coleman-Toll failed to comply with the Chapter 40 construction defect claim procedures and because REHAU is not responsible for the homebuilder’s dispute with the homeowners.
Ruling on appeal
The new litigation follows a 2008 suit against Uponer as well as plumbing suppliers and installers. It was filed as a class action and named as plaintiffs three owners of homes around the Las Vegas Valley built by Pulte/Del Webb, D.R. Horton Inc. and Carina Corp. It alleged defects in Uponer’s Wirsbo PEX high zinc content fittings.
That suit was voluntarily dismissed in early 2010 for a number of reasons.
Suppliers and contractors had complained some of the homeowners had filed state claims under Nevada’s Chapter 40 construction defect law, obligating them to participate in resolving the complaints through inspections, mediation and settlements — making it impossible for them to also defend themselves in the lawsuit.
In the end, the court ruled anyone who had filed a Chapter 40 notice could not participate in the class-action lawsuit.
Also, the defendants had replumbed the home of one of the plaintiffs to harvest yellow brass components for testing, records show.
The replumb involved non-Wirsbo yellow brass plumbing components, but the court denied a motion to include non-Wirsbo components in the lawsuit, giving the plaintiffs another reason to dismiss the suit, records show.
The homeowners’ attorneys are appealing several rulings in that case to the 9th U.S. Circuit Court of Appeals, arguing the suit should have been dismissed without prejudice rather than with prejudice and an award of attorney’s fees to the defendants.
"Unfamiliar with Chapter 40, the district court ignored its provisions and symbiotic relationship with the litigation process and directed homeowners to `elect’ either Chapter 40 or this class action and waive the right to pursue the unelected path," the homeowners said in their appeals brief.
Uponer and plumbing supplier Ferguson Enterprises Inc., however, argued U.S. District Judge Robert Jones properly ruled that allowing the homeowners to continue with their Chapter 40 claims would be duplicative with the lawsuit and harm the defendants by "causing prejudice to their interests and ability to defend the ongoing litigation."
The 9th Circuit has yet to rule on the appeal.