Brass Plumbing Fixtures – Don’t Let Subrogation Opportunities Go Down the Drain

A. OVERVIEW

Brass is cheaper than copper and more malleable. As such, it is often the preferred choice by manufacturers of plumbing pipes and fixtures. There are many different types of brass, however, and although not all types are suitable for use in plumbing applications, many manufacturers continue to use inappropriate brasses in order to reduce their overhead costs. As a result, subrogation professionals should be alert to the fact that the corrosion or failure of a brass plumbing fixture may give rise to excellent recovery prospects against both the manufacturer and the distributor of the plumbing product.  

Brass pipes: a lighter shade of brass indicates a higher zinc content and softer metal.

B. IMPORTANT FACTS ABOUT BRASS

Brass is an alloy – a “mixture” of zinc and copper, to which other metals, such as lead, may also be added to give brass specific characteristics. Since brass is a malleable metal that has many desirable properties, it is often used to make plumbing fixtures.

 The uses of a particular brass will vary depending on its proportions of zinc and copper. The zinc content in brass can vary from a few percent to approximately 40%. A higher zinc content creates a softer brass that is easier to cast. The color of the brass lightens as more zinc is added. Brass with a high proportion of zinc can become a pale yellow color.  

C. CORROSION OF BRASS: DEZINCIFICATION

The effects of brass de-zincification are illustrated above.

Although brass with a high zinc composition is more malleable and therefore cheaper to cast, zinc is a highly reactive metal with weak bonding properties. When brass is exposed to a potable water supply, there is a tendency for zinc to leach out of the brass over time, leaving behind a porous copper that is weak and fragile. This is a form of corrosion called “dezincification”. The higher the proportion of zinc in a brass, the greater the tendency for dezincification, with brasses containing 30% or more zinc being especially susceptible to this form of corrosion.

The Copper Development Association provides the following minimum recommendation for controlling dezincification in plumbing fixtures:

  1. Using a brass that contains no more than 15% zinc; or 
  2. Using a brass that contains a small amount of an inhibitor metal, such as antimony, phosphorous or tin. The inhibitor metal bonds to the zinc, preventing corrosion. This type of brass is variously referred to as “inhibited brass”, “anti-dezincification brass” or “dezincification-resistant brass”.

D. LESSONS FROM KITEC’S $90 MILLION FAULTY PLUMBING SETTLEMENT

Pictured above is a corroded Kitec brass fitting.

KITEC® is a plumbing system that uses brass fittings. It was manufactured by a Canadian corporation named IPEX and sold in the United States until IPEX discontinued the product line in 2007. KITEC® became a popular alternative to copper in the mid-1990s due to its inexpensive cost and simple installation.

On October 16, 2006, KITEC® fittings became the subject of a state class action lawsuit filed against IPEX in Clark County, Nevada. The Clark County lawsuit alleged that KITEC® fittings failed because of dezincification.

During the Class Action lawsuit, documents specific to the manufacturer’s claims were obtained. One such document provided material specifications for the brass fittings used in “KITEC® Composite and Fittings System”, which included several yellow brasses that contained high (i.e. more than 32%) levels of zinc. The manufacturer did not appreciate the fact that copper/zinc alloys containing more than 15% zinc should generally be avoided in such applications. As alleged in the Clark County lawsuit, when hot water flowed through the brass fittings, the zinc leached out of the fittings, thereby weakening the structural integrity of the brass and, ultimately, causing failure in the fittings.

A wave of suits resulted and included homes built by 31 developers from the late 1990s through 2006. Although the largest class action suit was the one in Clark County, which united at least 31,000 homeowners, a similar suit filed last year in New Mexico represents 30,000 homes there. On February 2, 2009, the Las Vegas Sun reported the federal court’s approval of a settlement agreed to by the maker and distributor of the KITEC® plumbing fittings and the legal representatives of an estimated 30,000 homeowners in southern Nevada. Cases against developers and plumbing contractors continued until final settlements were reached in November 2009 when District Court Judge Timothy Williams approved a partial settlement of $90 million dollars.

E. POTENTIAL LIABILITY IN CANADA OF MANUFACTURERS AND SELLERS

Designers and manufacturers of plumbing fixtures containing uninhibited brass components with high zinc contents may be liable for damages resulting from the failure of their products on the basis of a straightforward tort analysis. As discussed in Viridian Inc. v. Dresser Canada Inc. et al. (2000), 274 A.R. 28 (Q.B.) (leave to appeal refused):

It is a firmly recognized principle of law that a manufacturer owes a duty to users of its product not to be negligent in the manufacture of the product. Where the manufacturer is negligent and the product is defective, the manufacturer will be liable for damage that [is suffered] as a result.

Dezincification has been a well-known phenomenon for centuries and it has been recommended industry practice for decades that brass containing more than 15% zinc should be avoided in plumbing fixtures due to an increased risk of corrosion. This notwithstanding, many manufacturers of plumbing fixtures continue to use uninhibited brass containing much higher zinc concentrations. As such, there is a good argument that manufacturers who use brasses with high zinc contents for plumbing applications are negligent in so doing.

Similarly, it may be argued that distributors and retailers of brass plumbing fixtures have a duty to warn customers of the well known risks posed by the use of plumbing fixtures comprised of uninhibited brass containing greater than 15% zinc. Additionally, sellers of these products may be strictly liable for breach of implied conditions as to the quality and fitness of these products, pursuant to provincial Sale of Goods Act legislation, which imply conditions into contracts for the sale of goods that (1) the goods are reasonably fit for their purpose; and (2) the goods are of merchantable quality.

F. PROTECTING YOUR SUBROGATED ACTION

If you are presented with a claim for damages arising from the failure of a brass plumbing fixture, it is important to act quickly to ensure that subrogation potential is protected. The retainer of a metallurgical engineer will be required in order to assess the chemical composition of the brass and to analyze the precise mode of failure. It is crucial to ensure that both the impugned plumbing fixture is preserved, along with any identical fixtures that may have been installed at the same location (for comparison purposes). Finally, subrogation counsel should be retained as early as possible in order to coordinate the efforts of the engineer and adjuster, ensure that all relevant parties are placed on notice and, if necessary, prepare the matter litigation.

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One Response

  1. I would like to know why there is no information about Kitec pipe and fittings on Canadian websites. After searching for hours this is the first Canadian article I found, and you are mentioning the issue to illustrate a point about liability for using uninhibited brass.

    IPEX has removed all references to Kitec on their website, and the site Kitec.com is no longer available.

    Are you aware of any resources addressing what Canadians can do about their Kitec problems?

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