In a recent decision, the Circuit Court for Spotsylvania County,
Virginia, found that OmegaFlex, a manufacturer of corrugated
stainless steel tubing (CSST), which is used in residential gas
supply systems, was entitled to the protection of Virginia's
statute of repose in a product liability lawsuit. The decision is
significant because it is the second decision secured on behalf of
OmegaFlex in Virginia proving that CSST gas piping is not within
the meaning of the "equipment and machinery" exception to
Virginia's statute of repose. OmegaFlex secured its first
dismissal on this issue in 2013 when the Circuit Court for the City
of Richmond dismissed a product liability action filed against
OmegaFlex − more than five years after its product was
installed. In both actions, the courts have held that CSST gas
piping is afforded the protection of Virginia's statute of
repose, thereby limiting the product liability exposure of
manufacturers of CSST gas piping within the state of Virginia.
Virginia's Statute of Repose
Virginia's statute of repose, found at Virginia Code §
8.01-250, gives a plaintiff five years to bring a lawsuit for
personal injury or property damage arising out of an improvement to
real property. A statute of repose differs from a statute of
limitation because a statute of repose runs from the date that
services were furnished in connection with the improvement to real
property as opposed to the date of injury, which usually starts the
running of a statute of limitation.
In Virginia products liability litigation, the issue of whether
the statute of repose applies often turns on whether the product at
issue is an ordinary building material or equipment and machinery.
If the court finds that the product is equipment and machinery,
then the statute of repose does not bar the plaintiff's claims
against the product's manufacturer. On the other hand, if the
court finds that the product is ordinary building materials, then
it is afforded protection under Virginia's statute of repose.
The issue of whether a particular product constitutes an ordinary
building material has been the subject of numerous Supreme Court of
Virginia decisions, which have resulted in a long list of factors
that are relevant to the analysis. Nonetheless, no single
characteristic or set of characteristics is determinative of
whether something is − or is not − an ordinary building
In its recent decision, the Spotsylvania Court determined that
OmegaFlex's TracPipe® CSST product was an ordinary building
material because TracPipe (1) is fungible, (2) does not serve a
function other than as a component part of a whole gas supply
system and (3) was incorporated into the structure in this matter
outside of OmegaFlex's control. The Supreme Court of Virginia
has found that each of these factors is indicative of an ordinary
building material. The Circuit Court for the City of Richmond
relied on similar factors in its previous decision, holding that
CSST was an ordinary building material.
Interestingly, the Spotsylvania Court also noted that
OmegaFlex's training and installation guides were designed for
the "protection of the ultimate consumer" and did not
demonstrate substantial control and oversight over the installation
of the TracPipe in this matter. The Supreme Court of Virginia has
found substantial control and oversight is a factor that weighs in
favor of finding a product is equipment and machinery.
While these decisions relate to OmegaFlex and its TracPipe
product, the rationale employed by the Virginia courts in these
decisions has potential application across the gas supply industry
to those who manufacture and sell gas supply system components in
Virginia. As always, we welcome the comments and questions of our
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Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
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