Documents on Issue

On the Notice of Alleged Defective

Brass Plumbing Fittings

What we know and do not know

Certain Sun City Anthem homeowners recently received an official Notice. This Notice disclosed an alleged defective condition involving a construction problem with Kitec's brass plumbing fittings. Affected homeowners are those who are living in Phase 1 original model homes since the use of Kitec's brass plumbing fittings was phased out beginning with Phase 2 homes, the newer model homes that were constructed in 2003 and in the following years. This Special Report is directed at only those persons who own a Phase 1 model home. If you own a Phase 2 model home, this SCA View-Journal Special Report, while not applicable to you, is for information only.

What we do know is that virtually all Phase 1 homes in Sun City Anthem utilized Kitec's brass plumbing fittings. If you are uncertain about whether your home was plumbed using Kitec's brass fittings, there is an easy way to tell, Click Here. Please note that a few Phase 1 original model homes, likely built in the 2002-03 period, did not use Kitec fittings. These "non-Kitec" homes most likely were constructed at a different time from when the other (Kitec-plumbed) homes were constructed on the same street, e.g., when lots were left vacant or when the developer built spec homes. That might account for the use of non-Kitec fittings in those later built homes.

Here are some Q & A’s pertaining to this issue. The first section pertains to information about Kitec's brass fittings. The second section pertains to information about some of the pending legal issues and Pulte's Notice and letter to Homeowners. The last section is how to contact Del Webb in the event you need further information or to request an inspection of your home.

Section A: On Kitec's Brass Fittings

The Kitec plumbing system used for our hot and cold plumbing needs consists of a flexible plastic pipe and special Kitec brass fittings (see photo below). Fittings may be installed using either a crimping or a compression technique. According to a representative from Cox & Sons Plumbing, the fittings were installed using the compression technique. Kitec was routed to the various service areas (outside bibs, bathrooms, laundry, kitchen, etc.) below grade level and the pipe is inaccessible since it is encased in the foundation's cement slab. The alleged construction defect relates to Kitec's brass fittings, not to the company's plastic pipe.

According to the manufacturer: Kitec is "an engineered composite pipe made from flexible aluminum tubing – permanently bonded between layers of durable polyethylene – Kitec® XPA™ can be installed directly below grade or encased in concrete without additional protection. Its tough cross-linked polyethylene outer and inner layers provide excellent corrosion resistance, while its aluminum core provides a built-in permeation barrier against ground source contaminants such as termiticide. The result is years of reliable service, even in harsh soil and water conditions where the use of copper should be avoided." To read Ipex's Installation Manual for Kitec, Click Here.

Kitec was manufactured by a Canadian thermoplastics company, Ipex, Inc., located on the web at www.ipexinc.com, and in the U. S., by their subsidiary, Ipex USA LLC.

3. When was Kitec first introduced into the U. S. market?

1995.

Yes, Cox & Sons Plumbing began to install Kitec at Summerlin around 1995-6, as well as at McDonald Ranch.

No, the manufacturer, Ipex, Inc., recalled all Kitec brass fittings from the U. S. market on 2 August 2005. Click here to see the Ipex Product Recall Notice.

Ipex has since replaced their allegedly defective brass fittings for Kitec pipe with plastic fittings, as shown in the image to the left.

Currently, this is an unsettled legal issue and is subject to dispute between the parties. Here is what Pulte writes in their letter to affected homeowners: “Neither the Inferrera attorney’s notice nor our disclosure means that your home indeed has these ‘alleged common constructional defects.’”

Here is what Kyle Smith, a representative of the law firm Harrison, Kemp & Jones, one of two firms representing the plaintiffs, has to say about the matter.  All Kitec brass fittings used in the state of Nevada are subject to a corrosion mechanism known as “dezincification” when exposed to water, a process prone to disintegration and premature failure at some undetermined time. This reflects the position taken by the plaintiffs' expert, David J. Coates, (Click to view Resume) whose affidavit was included with Pulte's letter to affected SCA Homeowners.

Before we get into a discussion of "dezincification," it would be helpful to first go over the meaning of some other related terms. In general terms, "dezincification" refers to the leaching away of zinc from the copper alloy, resulting not merely in a weaker product, but in a product that has lost its original strength characteristics.

Here is a very informative article on the nature and causes of the problem we are now faced with in Sun City, titled ZINC Too much of a good thing results in return of an old problem: dezincification. To read, Click Here.

In the following Q & A sections, I have relied on a number of internet sources. The information and corresponding sources can be read by Clicking Here.

Brass is defined as a copper alloy that contains 5 to 40 percent zinc as the principal alloying element (among other metals, including tin, iron, aluminum, nickel, silicon, and lead in varying degrees depending on the intended use). Zinc is added to brass to increase tensile (tension) strength.

As a general rule, the answer is yes. Generally, corrosion resistance decreases as zinc content increases. It is customary in the industry to distinguish between those alloys containing less than 15% zinc (better corrosion resistance), and those with higher amounts of zinc (poorer corrosion resistance).

The main problems with higher zinc content alloys are dezincification and stress corrosion cracking. In dezincification, a porous layer of zinc-free material is formed locally or in layers on the surface.

More technically, zinc is a highly reactive metal, as determined by its galvanic ranking. This reactivity stems from the fact that zinc has a very weak atomic bond relative to other metals. Simply, zinc atoms are easily given up to solutions with certain aggressive characteristics. During dezincification, the more active zinc is selectively removed from the brass, leaving behind a weak deposit of the porous, more noble copper-rich metal that has little mechanical strength.

Yes, dezincification can be avoided. Dezincification can be avoided by maintaining the zinc content below about 15%, and minimized by adding 1% tin, and or by adding less than 0.1% of arsenic, antimony or phosphorus under certain circumstances. Another method of minimizing dezincification is by using brass fittings of proven dezincification-resistant brass alloys. The key here is whether the manufacturer will supply chemical specs that demonstrate that the alloys are indeed dezincification-resistant.

The dezincification process can be identified indirectly by observing whether the flow of water has reduced due to a build up of materials on the inside of the fittings or pipe. Also, in the case of valves, for example, dezincification can produce a white powdery substance or mineral stains on the exterior surface.

To view photographs of examples of corroded and, or plugged pipe fittings currently on or taken out of a Sun City home plumbing system this past week, Click Here. The purpose here is to demonstrate corrosion and plugged fittings, not to demonstrate the cause of such corrosion and plugged fittings.

That's not clear. However, given the manufacturer's recall of their Kitec brass fittings and their switch from brass to plastic fittings, the impression given is that the zinc content of their brass fittings was not less than 15%, thereby leading to possible dezincification issues.

Relying on information supplied by an attorney representing the litigants in the class action suit, the zinc content of Kitec's brass fittings was understood to be in excess of 30%. As a matter of fact, Ipex, Inc. makes no claim in their literature about the zinc content of their brass fittings.

Not as far as we know. No such claim is made by Ipex, Inc., according to their Installation Manual, where there is no claim that their fittings were DZR rated, which is a relatively new designation in the industry.

The plumbing fittings one sees surrounding the water heater, as well as the fittings and valves that are attached to plumbing fixtures in our bathrooms and kitchen are NOT Kitec fittings. Kitec fittings are located out of view of the homeowner and are located behind the walls where they connect Kitec's plastic pipe to other fittings or copper pipe that, in turn, connects to our plumbing facilities located throughout the home, e.g., the faucets and fixtures in the bathrooms, kitchen, laundry, etc.

It’s recognized that water per se as well as water quality play some role in advancing corrosive behavior. It's not that clear what the role Nevada's hard water plays in the dezincification process. Water hardness is caused by compounds of calcium and magnesium, and by a variety of other metals.

General guidelines for classification of waters are: 0 to 60 mg/L (milligrams per liter) as calcium carbonate is classified as soft; 61 to 120 mg/L as moderately hard; 121 to 180 mg/L as hard; and more than 180 mg/L as very hard. According to the Henderson Water Department, Lake Mead water, a primary source of our potable water, is 326 mg/L. Some classify this degree of hardness as "excessive."

The pH level of our water supply was reported to be 8.2, or slightly alkaline. The acceptable range for pH in drinking water is from 6.5 to 8.5. Henderson water as supplied to the home is NOT "aggressive" water as that term is defined, which is a pH of less than 6.5. Aggressive water is known to corrode copper and cause premature failure of copper pipes. See pH Chart.

No information is currently available.

Once Henderson's hard water reaches the home, the chemistry of the water may be changed by the homeowner. To combat Nevada's hard water, homeowners purchased water softeners, typically at the time of purchase. Water softeners are designed to lower the concentration of calcium and magnesium to more acceptable levels--for use in the laundry and in bathing. Typically, this is water that has been processed through a softener unit, using sodium or potassium chloride as a base in an ionic exchange filter. In removing the hardness of the water, softeners will lower the pH value, making the water somewhat acidic. Such acidity or aggressiveness may adversely affect copper piping and fittings, as well as Kitec's brass fittings, to the extent that the softened water passes through such pipe and fittings.

1. What is known about the legal actions that have been filed?

There are two actions pending. One action, technically a complaint, is against the Developer and is pursuant to NRS Section 40.600 and following subsections (40.645 is the "Notice" section), relating to alleged construction defects, and the other is a class action lawsuit against the manufacturer of Kitec, Ipex, Inc., and others including Cox & Sons Plumbing, Inc., for product liability, breach of warranty and negligence.

To read the NRS section pertaining to ACTIONS RESULTING FROM CONSTRUCTIONAL DEFECT, click here:
http://www.leg.state.nv.us/NRS/NRS-040.html. Proceed to NRS 40.600 and the following sections.

As an aside, here is an interesting article on Nevada’s construction defect law, from the State Bar of Nevada, click here: http://www.nvbar.org/nevadalawyerarticles3.asp?Title=Chapter+40+and+Construction+Defect+Litigation+-+Boom+or+Bust. This article reviews the Construction Defect chapter in Part 40 of the NRS. In so doing, the author details whether its procedures are a boom or bust -- and for whom. While Chapter 40 constitutes "a golden goose" for lawyers and experts, the greater question remains whether the homeowner, who may have purchased a house with defects, obtains proper satisfaction and resolution through Chapter 40 procedures. The answer to that question appears unfavorable for the homeowner!

Since this action was recently initiated, and pursuant to NRS 40.680, the mediation stage is applicable before any other type of action is taken, as referenced in the Notice of Defect. As noted in the statute, and unless waived, the matter "must [first] be submitted to mediation." Section NRS 40.680 reads, in part, as follows:

"NRS 40.680  Mediation of certain claims required before action commenced or complaint amended; procedure; appointment of special master; effect of failure to mediate in good faith.  1.  Except as otherwise provided in this chapter, before a claimant commences an action or amends a complaint to add a cause of action for a constructional defect against a contractor, subcontractor, supplier or design professional, the matter must be submitted to mediation, unless mediation is waived in writing by the contractor, subcontractor, supplier or design professional and the claimant."

As the Developer, Pulte has the option of notifying homeowners of an alleged constructional defect. Further, the Developer has the option of attempting to remedy any such alleged defect. Pulte's letter state's that "owners of homes that the purpose of "an inspection" is to "determine whether your home has this alleged common constructional defect."

This action by the Developer/Contractor is being taken pursuant to NRS 40.647, which allows for "an inspection" of an alleged constructional defect and allows in NRS 40.647(1)(b) "a reasonable opportunity to repair the constructional defect or cause the defect to be repaired . . . ." Section NRS 40.647 reads, in part, as follows:

"NRS 40.647  Claimant required to allow inspection of and reasonable opportunity to repair defect; effect of noncompliance. 1.  Except as otherwise provided in NRS 40.6452, after notice of a constructional defect is given pursuant to NRS 40.645, before a claimant may commence an action or amend a complaint to add a cause of action for a constructional defect against a contractor, subcontractor, supplier or design professional, the claimant must: (a) Allow an inspection of the alleged constructional defect to be conducted pursuant to NRS 40.6462; and (b) Allow the contractor, subcontractor, supplier or design professional a reasonable opportunity to repair the constructional defect or cause the defect to be repaired if an election to repair is made pursuant to NRS 40.6472.

The homeowner should be aware that while Pulte is proceeding under NRS 40.647(1)(a) that allows "an inspection," there is nothing in Pulte's letter to suggest that the Developer is proceeding under NRS 40.647(1)(b) that allows the contractor "a reasonable opportunity to repair . . ." Pulte's inspection appears to be limited to the single issue of determining "whether your home has this alleged common constructional defect."

In this regard, the following statutory provisions would appear to be applicable, as referenced above in NRS 40.647. It provides that an affected contractor be allowed to "determine the nature and extent of a constructional defect and the nature and extent of repairs that may be necessary." Section NRS 40.6462 reads, in part, as follows:

"NRS 40.6462  Access to residence or appurtenance with alleged defect after notice of defect is given; effect on owners who did not provide notice. 1.  Except as otherwise provided in subsection 2, after notice of a constructional defect is given to a contractor pursuant to NRS 40.645, the claimant shall, upon reasonable notice, allow the contractor and each subcontractor, supplier or design professional who may be responsible for the alleged defect reasonable access to the residence or appurtenance that is the subject of the notice to determine the nature and extent of a constructional defect and the nature and extent of repairs that may be necessary. To the extent possible, the persons entitled to inspect shall coordinate and conduct the inspections in a manner which minimizes the inconvenience to the claimant."

As to how Pulte intends to use the information gathered by "an inspection" is unclear since Pulte makes no representations concerning their intentions.

Moreover, Pulte's letter, although conforming to the Response requirements established by NRS 40.6452, tells us nothing about what the inspection will consists of; what the testing methods and procedures will be; what acceptance criteria applies; what analysis methodology will be employed in evaluating the plumbing conditions; and, in general, just how Del Webb/Cox & Sons Plumbing will evaluate and make their determination of whether the alleged constructional defect is present in the home.

Assuming that "some" type of constructional defect is disclosed in the inspection process, will or how will that disclosure answer all of the issues raised by the complaint. To look at it another way, will any potential remedies or repairs that might be offered by the Developer/contractor adequately or satisfactorily address the long-term water/plumbing safety needs of the homeowner?

On the other hand, say, hypothetically, the Developer/contractor finds no problem. In this proposed scenario, for example, the Developer/contractor proposes to install a flow meter on your line to establish whether there is inadequate or low pressure going to your plumbing fixtures. Let us say the results of the "test" discloses that the pressure in the line is adequate or within accepted tolerances. Would such a "test" demonstrate to the Developer, let alone to the homeowner, there was no constructional defect to to remedy? As a homeowner, would you accept such a "test" as final in validating the absence of a constructional defect of the type being alleged in the complaint?

These are the type of questions and issues that homeowners may be faced with as we move forward on this matter. The unanswered question for all of Sun City's homeowners is whether and to what extent will homeowners become better informed on the issues that may affect or impact on the safe and long-term use of their home.

Absolutely!

While Pulte makes it clear that the option to request "an inspection" is up to the homeowner, all homeowners should request an inspection. Pulte states as follows: "You are not required to request an inspection." However, if you wish to preserve your rights under NRS 40.6452 that are provided by the Inferreras' attorney Notice of Alleged Defect, you should request an inspection.

Yes.

The Clark County District Court approved certification of the initial action as a class action on October 16, 2006.

Yes, according to attorney Kyle Smith there are two factual admissions as described in the law firm's Press Release, dated 23 October 2006.  To view the Press Release, please click here:  Press Release, dated 23 October 2006

Additional information may be found at:  http://www.plumbingdefect.com/index.php. According to the website, it was established by the law firms to provide information to homeowners and class members of the class action lawsuit involving brass KITEC plumbing fittings.

As provided in Pulte's letter to homeowners, to request an inspection of you home, send your Inspection Request Form to:

           Del Webb Communities, Inc.

8345 West Sunset Road

           Las Vegas, NV 8911

 

If you have any questions, call Del Webb: (866) 325-5701. If you have misplaced your form, you can download a copy and print one out by Clicking Here.

 

Warning: Homeowners are cautioned that their submission to request an inspection of their home is time-sensitive. As advised by Pulte's letter, the homeowner is cautioned that their request for an inspection is dictated by a 30-day expiration date shown at the top of their form (and letter), which date may be different from the date shown on this downloaded form. To repeat, the Del Webb Request Form is not valid after 30 days from the date of Pulte's letter to the homeowner. If you have any questions, contact Del Web at (866) 325-5701.

 

Conclusions

In conclusion, and while not providing answers to many questions, we have attempted to set forth what is known and not known and to allude to certain issues and potential concerns that homeowners may find relevant, including those issues raised by Pulte's letter and their offer of "an inspection."

As needed, we will be amending this information, and, or providing new details as they come available.