Actions Against Plumbing Supply Client Dismissed

October 26, 2010

Robert M. Scherk and Scott J. Loeding successfully brought a Dismissal with prejudice for their client in a matter arising from product liability, breach of warranty and breach of contract claims.

Plaintiff Hale & Sons, Inc., a plumbing contractor which purchased plumbing fixtures in connection with its plumbing-related construction work, filed suit against client Hughes Supply, Inc., now known as HD Supply, Inc., which distributes and sells plumbing fixtures. The plaintiff claimed that it purchased approximately 300 P-Traps, which are found in almost all sink drains, from the defendant, and that the P-Traps were installed by Hale & Sons in a condominium project. Hale & Sons claimed the P-Traps were defective in design and manufacture, but that the defects did not become known until after installed throughout the San Diego condominium and that all the traps had to be replaced at a cost of over $30,000.

The plaintiff replaced most of the traps in early 2006, but did not file suit until January of 2010, some six years after the traps were purchased and four years after the alleged damages were discovered. On behalf of its client, rather than filing an Answer to the Complaint, M&C filed a Demurrer to each of the five causes of action arguing that plaintiff's strict liability and negligence claims were barred by the three year statute of limitations found in California Code of Civil Procedure Section 338(b), and that the breach of implied and express warranty claims, and breach of contracts claims were barred by the four year statute of limitations found in Commercial Code Section 2725.

Rather than attempting to oppose the Demurrer filed by M&C on behalf of its client, plaintiff's counsel wrote to Mr. Scherk, stating: "Plaintiff has multiple matters it is pursuing right now and has indicated that it may want to forego pursuing one of the matters. Would your client be willing to make a small settlement offer and execute mutual releases in exchange for a Dismissal with prejudice?"

Mr. Scherk responded to plaintiff's counsel that it was apparent the plaintiff's suit was time-barred when it was filed and thus had not merit. He indicated that no settlement would be made, but that he would recommend a waiver of costs in exchange for a Dismissal with prejudice. Five days later, on June 9, 2010, the plaintiff's counsel agreed to dismiss M&C's client in exchange for a waiver of costs.