Subrogation & Recovery Law Blog : Insurance Subrogation Lawyer & Attorney : Cozen O'Connor Law Firm : Property Damage & Insurance Commentary

A fire sprinkler system is supposed to suppress fires. But, in August 2009, a fire sprinkler system in an apartment complex in Truckee, California did just the opposite. The fire began as a grease cooking fire. Then, a fire sprinkler system with a reported 71.2% concentration of glycerin antifreeze deployed during the fire. The resulting effect was an extended fire and explosion in which a serious injury and a fatality occurred.

Following the Truckee incident, the National Fire Protection Association (NFPA) initiated a research project in conjunction with the Fire Protection Research Foundation. The NFPA's investigation showed that there was a possibility of flash fires associated with various concentrations of antifreeze solution used in antifreeze fire sprinkler systems. Basically, if the antifreeze solution had too much of the antifreeze chemical, then the antifreeze solution could spread a fire, not suppress it. So, in July 2010 the NFPA issued a safety alert providing that residential anti-freeze systems should be drained and replaced with water. Then, in August 2010, NFPA Standards Council issued three Temporary Interim Amendments (TIAs) that, in effect, would ban of the use of anti-freeze systems in residential new construction. The Truckee incident, and the resulting research and NFPA responses, put the future viability of anti-freeze fire sprinkler systems in serious question.

Then, as part of its meeting on February 28-March 1, 2011, the NFPA Standards Council reviewed and issued (over an appeal by the Massachusetts Department of Fire Services) three new TIAs that would impact NFPA 13, Standard for the Installation of Sprinkler Systems, NFPA 13D, Standard for the Installation of Sprinkler System in One- and Two- Family Dwellings and Manufactured Homes, and NFPA 13R, Standard for the Installation of Sprinkler Systems in Residential Occupancies up to and Including Four Stories in Height. Under the new TIAs, antifreeze systems can be installed as long as the antifreeze solution is factory produced and meets certain maximum concentrations of antifreeze chemical. The new antifreeze sprinkler systems would also require special testing and verification that such requirements are met. In addition, to deal with existing antifreeze systems, a TIA was issued for NFPA 25, Standard for the Inspection, Testing and Maintenance of Water-Based Fire Protection Systems, that would require annual testing and certification that the proper type and concentration of antifreeze solution was in an existing system.

Based on the 2011 TIAs, NFPA issued an updated NFPA Alert regarding antifreeze in new and existing fire sprinkler systems. In the updated Alert, NFPA summarizes the new TIAs and the impact on new and existing fire sprinkler systems. The NFPA also recommended in the April 2011 Alert several other options for the design of fire sprinklers to avoid the effects of freezing conditions, including the placement of sprinklers in heated areas and using dry or preaction systems instead of antifreeze systems. NFPA will be having online presentations about the new TIAs on June 28, July 7 and July 19, 2011.

How the Truckee incident, the new TIAs, and the additional testing will impact the fate of antifreeze fire sprinkler systems still remains to be seen. However, for the subrogation professional going forward, the existence of an antifreeze sprinkler system should now prompt additional questions about the special testing and certification required for these type of fire sprinkler systems and the potential liabilities created by such testing, or lack thereof.
 

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Has your cause and origin investigator concluded that a carelessly discarded cigarette started a fire? If so, you should determine the location from which and manner in which the cigarettes were bought. If the cigarette at issue was not “fire safe”, there may be a small time-frame left within which to pursue a subrogation claim against internet retailers for selling an illegal cigarette within your insured's state.

New York was the first state to adopt a fire safe cigarette requirement. The state of New York passed legislation on August 16, 2000 that called for all cigarettes sold in the state of New York to have reduced ignition propensity by July 2003.

The tobacco industry, which had for decades actively opposed passage of state and federal requirements for cigarette fire safety standards, argued that it was not technically feasible to manufacture such a cigarette. In direct response to the proposed rule-making, Brown & Williamson Tobacco Corp., R J Reynolds Tobacco Co., Specialty Tobacco Council directed a comment in opposition to the legislation and the proposed standard. The tobacco companies’ objected that “[i]t has not been demonstrated that the performance standard specified in section 4 of the proposed rule will impact real world fire scenarios.” Assessment of Public Comment – Fire Safety Standards for Cigarettes. 2003.

The State administrative agency rejected the tobacco companies’ position, responding:

Large changes in ignition strength test results can be expected to reflect significant changes in fire risk. There is reason to expect that compliance with the performance standard specified in section 429.4 of the proposed rule will result in a significant reduction in cigarette-initiated fires. Reducing the heat output and the burning time of a cigarette will reduce the likelihood that it will ignite a fire.

New York set a minimum performance requirement for cigarettes which are to be tested in accordance with the American Society of Testing and Materials standard E2187-02b. The standard requires a lit cigarette to be placed on ten layers of standard filter paper in a draft-free environment and then observed to determine whether or not the tobacco column burns through its full length. A brand is in compliance if no more than 25 percent of the 40 cigarettes tested in a trial exhibit full length burns. 

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Cozen O'Connor recently handled the first trial to go to a jury on the issue of strict liability against a manufacturer of CSST (corrugated stainless steel tubing). We are pleased to announce that, following an eight day trial conducted by Mark Utke of our Philadelphia office, the jury found CSST to be a defective product and imposed strict liability against Omegaflex, one of the major manufacturers of CSST.   Mark represented Terence and Judith Tincher, as well as their property insurance carrier, for both subrogated and uninsured losses. The jury awarded 100% recovery of both the subrogated and uninsured losses, for a total judgment that will exceed $1,000,000.  Tincher v. Omegaflex involved a CSST line that was installed in 1998 and failed from the effects of indirect lightning in June of 2007, and was tried in the Common Pleas Court of Chester County, Pennsylvania.

Recipients of our Subrogation Alerts and readers of the blog know of the issues arising from the development of CSST.  Since 1988, CSST has been used in industrial, commercial and residential construction to transport pressurized propane and natural gas.  The tubing walls are flexible and only approximately 10 mils thick (the equivalent of four sheets of paper), making CSST extremely vulnerable to the energy from indirect lightning strikes.  While seeking to go to ground, the energy can result in a perforation in the tubing. When this occurs, an arc ignites the pressurized gas and causes a blow torch effect, which typically results in a significant fire. CSST failures are annually responsible for millions of dollars in property damage across the United States, and hundreds of claims are pending against the various manufacturers of CSST.

Omegaflex sells a brand of CSST known as TracPipe, which first came on the market in 1996, as a replacement for traditional black iron pipe.  To date, over 750 million feet of this product has been sold across the country.  The purported advantages of TracPipe are its flexibility, ease of installation, and ability to reduce the incidents of gas leaks.  At trial, Omegaflex argued TracPipe’s ability to survive natural disasters, such as earthquakes and tornadoes, far outweighed any disadvantage associated with  the product, including its vulnerability in confronting indirect lightning strikes.  Omegaflex also argued that a properly bonded CSST system could withstand the energy produced from an indirect lightning strike.  Omegaflex's failure to ever  test TracPipe’s ability to withstand such energy, when properly bonded, proved fatal to its defense. 

The National Electric and Fuel Gas Codes both contain bonding requirements for household gas and electric systems.  However, these codes are intended to address life safety issues arising from stray electric current, as opposed to the dissipation of the energy created by an indirect lightning strike.  Despite this, CSST manufacturers, as an industry, argue that compliance with these code requirements demonstrates their products to be safe.  However, the National Fire Protection Association is currently evaluating the effectiveness of bonding as it relates to CSST and has considered recommending a complete ban on the sale of CSST, absent a demonstration by the industry that bonding can be a safe and effective means of safely dissipating the electrical energy created by an indirect lightning strike.

The Tincher verdict, significant on its own, has the potential to impact cases against Omegaflex beyond Chester County, Pennsylvania. A viable argument exists to extend the principles of collateral estoppel to apply to other cases against the manufacturer in other jurisdictions, involving similar facts and claims of defect. The defective nature of the product would no longer be an issue for the jury to decide, given the prior determination by the Tincher jury. 

For additional information, please feel free to contact either Mark Utke or any of  the 130 subrogation attorneys at Cozen O’Connor.

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 On July 6, 2010, the National Fire Protection Association (NFPA) issued a safety alert recommending that residential fire sprinkler systems containing antifreeze be drained and the antifreeze be replaced with water. While NFPA emphasized that residential sprinklers remain reliable and effective, a recent fire incident involving a sprinkler system containing a high concentration of antifreeze solution raised concerns surrounding the combustibility of antifreeze solutions in residential sprinkler systems. The subject incident involved a grease fire in a kitchen where a sprinkler system with a reported 71.2% concentration of antifreeze deployed. The fire resulted in a single fatality and serious injury to another individual.

Following this incident, NFPA initiated a research project in conjunction with the Fire Protection Research Foundation. The initial test results showed that antifreeze solutions consisting of 70/30% glycerin and 60/40% propylene glycol may provide an unacceptable risk of harm to occupants in certain types of fire scenarios, in particular kitchen grease fires. There were successful tests where kitchen grease fires were extinguished or contained with a 50/50% glycerin solution, but NFPA felt there should be additional testing to more fully understand if there is a risk associated with a 50/50% glycerin solution. Further testing on antifreeze is planned in the future.

Potential fire spread issues, such as the aforementioned, should always be considered when evaluating a case for subrogation potential. 

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Following up on our report of July 9, 2010, Cozen O'Connor has learned that the National Fire Protection Association (NFPA) has issued tentative interim amendments to three of its standards, banning the use of antifreeze in sprinkler systems in new construction of residences and in the dwelling unit portions of other occupancies.  As previously reported by our blog, the NFPA, in conjunction with the Fire Protection Research Foundation, tested antifreeze solutions in sprinkler systems with varying percentages of glycerin and propylene glycol.  Those tests were followed by additional testing and research which concluded that antifreeze solutions with concentrations of propylene glycol exceeding 40% and concentrations of glycerin exceeding 50% have the potential to ignite when discharged through automatic sprinklers.  Based on these results, NFPA has determined that antifreeze solutions of propylene glycol exceeding 40% and glycerin exceeding 50% are not appropriate for use in residential fire sprinkler systems.  NFPA's Standards Council, the body that oversees the NFPA standards development process, has issued amendments to NFPA 13, Standard for the Instillation of Sprinkler Systems; NFPA 13D, Standard for Installation of Sprinkler Systems in One- and Two-Family Dwellings and Manufactured Homes; and NFPA 13R, Standard for Installation of Sprinkler Systems in Residential Occupancies Up To and Including Four Stories in Height.  For now, and until any further action by NFPA consensus standards committees, NFPA sprinkler standards prohibit the use of antifreeze in new residential fire sprinkler systems.

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As its name suggests, the National Fire Protection Association’s goal is to protect against fires. It is therefore not surprising that the number of fires involving corrugated stainless steel gas tubing over the last few years has caught the NFPA’s attention. In the fall of 2009, the NFPA formed a CSST Task Group. The Task Group was entrusted with the job of taking a closer look CSST’s potential for failure when confronted with energy from direct and indirect lightning strikes. The CSST Task Group has now met, submitted a report and has been discharged.

Only time will tell, but the CSST Task Group report may have a far ranging impact in both the construction and CSST industries. First, one of the main issues that the Task Group reviewed was whether bonding of CSST, as set forth in the present edition of the National Fuel Gas Code (NFPA 54), was enough to prevent lightning-induced CSST fires. The Task Group reports that it sought research supporting the continued use of the current CSST bonding requirements of NFPA 54. To this end, the Task Group specifically asked manufacturers of CSST to provide research performed by them on their behalf in this regard. The information the Task Group received in response was of “limited value” and “did not provide enough information to ascertain that the proposed bonding remedy will provide adequate protection from lightning induced surges.” The minutes of the Task Group meeting further reveal that at least one of the members observed failed CSST gas lines even in instances where the CSST was bonded per NFPA 54 and the manufacturer’s recommendation.

As a result of the Task Group’s work, the NFPA has decided that further review of CSST is warranted before the next version of NFPA 54 is published in 2014. Among other things, the NFPA is now looking to validate whether bonding of CSST is an adequate solution to the lightning exposure problem or if there are other alternative methods of installation that will make the product safe. 

Could this be the end of CSST as means of delivering gas products? Or, could this be the start of a movement to make CSST a genuinely safe product? The NFPA appears serious about making sure this product is safe. An Action Report dated June 23, 2010 concluded with these words of warning: 

Over the next full revision [of NFPA 54] currently scheduled to be in the Annual 2014 revision cycle, the industry and others advocating the continued use of CSST in gas piping systems shall validate the safe use of the product through independent third-party validated research and testing that can be reviewed and evaluated by the standards developers in a timely way… [I]t is incumbent upon the manufacturers or others promoting the use of CSST in gas piping systems to provide independently validated and reliable technical substantiation demonstrating the CSST can safely be used. If such substantiation is not provided, the Technical Committee on the National Fuel Gas Code must consider prohibited the use of CSST in NFPA 54. In addition, should the issues not be reasonably addressed by the end of the next full revision cycle, Annual 2014, the Council may take action as it deems appropriate up to and including prohibition of the use of CSST in NFPA 54.

For many who have already lost their homes due to lightning-induced CSST fires, these developments have already come too late. But for now, NFPA appears poised to act. Hopefully, we all will be safer for it.

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Cozen O’Connor attorneys successfully argued in the Delaware Superior Court that the adoption of a National Fire Protection Association standard by an administrative agency defined the standard of care for work performed by a chimney sweep. The Court accepted the argument advanced on behalf of a subrogating insurance carrier for a condominium association that a chimney sweep hired by the association to “clean and inspect” chimney flues was required to perform a full Level 1 inspection of the entire chimney and fireplace systems pursuant to NFPA 211. 

In Fireman’s Insurance Company v. Fire-Free Chimney Sweeps, Inc.,[1] the Court denied a Motion for Summary Judgment filed by a chimney sweep company. It claimed that its contract with a condominium association to “clean and inspect” chimneys and flues for the individual fireplaces in the condominium complex did not create any duty on the part of the chimney sweep to inspect the fireplaces connected to the chimneys. The Court found that NFPA 211, the standard relied upon by the plaintiff, required the chimney sweep to perform a full “Level 1” inspection which involves an evaluation of the chimney, flue and all appliances, including the fireplaces, that were attached to the chimney. 

The chimney sweep was hired by the association to clean and inspect the chimneys that were utilized by the 294 unit owners in the condominium complex. NFPA 211 mandates cleaning of chimneys and flues, including the evaluation of the appliance which is attached to the chimney, in order to insure that the entire system is safe and operational. One of the unit owners had replaced the original fireplace doors with an after-market set of doors which effectively blocked the flow of air around the prefabricated fireplace. This prevented the fireplace from properly cooling while it was in operation and resulted in the ignition of combustible wood members surrounding the fireplace. The after-market doors had been installed by this unit owner prior to the time that the chimney sweep company performed its cleaning and inspection. 

Plaintiff argued that had a full and complete Level 1 inspection been performed, the chimney sweep would have detected the fire hazard created by the after-market doors and should have provided warnings to the unit owner and condominium complex that the doors should be replaced in order to prevent fires.  The chimney sweep argued that its duty was limited to properly cleaning  and inspecting the flues. It asserted that since it had no access to the individual units it could not be responsible for the condition of the fireplaces in those units that it did not access. It did offer to inspect individual unit owner’s fireplaces for an additional charge of $40. Only a few of the unit owners availed themselves of this offer. 

The Court concluded that once a chimney sweep undertakes an inspection encompassed within the NFPA 211 standard, it has an absolute obligation to perform a full Level 1 inspection consistent with the standard and anything less would constitute negligence and negligence per se.  The court stressed code compliance as NFPA 211 is a standard intended to protect life and property from the risk of fires and explosions.  The Court essentially required a contractor like a chimney sweep to turn down a contract if it cannot carry out the steps in an adopted safety code, even if full compliance means mandating access to the private property of third parties.

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