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The Collaborative Clearinghouse for Lawsuits and Other Claims Against ACE Group Insurance Companies

BANKERS STANDARD INSURANCE COMPANY v. MTD (USA) CORPORATION et al

ATTENTION: It is possible that this information may no longer be current and therefore may be inaccurate. The index contains both open and closed cases and is not a complete list of cases in which an ACE Insurance Group company is involved. This information is provided to give interested persons an idea of the issues disputed in the indexed cases. For a full understanding of a case, one should read the rest of the court file, including the response. For the most up-to-date and complete information on a case, visit www.pacer.gov or contact the clerk of the relevant court.

Case Number: 
3:13-cv-01199 Search Pacer
ACE Group party(s): 
Court Type: 
Federal
US District Court: 
Middle District of Tennessee
Date Filed: 
Oct 31 2013

COUNT I
NEGLIGENCE AGAINST MTD (USA) CORPORATION
42. Plaintiff adopts and incorporates by reference its previous allegations as though
fully set forth herein.
43. Defendant, MTD (USA) Corporation designed, manufactured, sold and/or
distributed the subject coupling nut.
44. Defendant, as the manufacturer and/or distributor and/or seller of the subject
coupling nut (also referred to herein as "the product" or "the subject product"), had a duty to
assure that it was designed and manufactured in such a way that it would not contain a latent
defect that would cause it to crack and fail and result in significant water loss in the course of the
ordinary use of the product.
45. Defendant, as the manufacturer and/or distributor and/or seller of the subject
product, had a duty to warn persons who might reasonably use the product about latent
dangerous defects concerning that product.
46. It was foreseeable to Defendant that if Defendant sold and delivered the product
with a latent defect, and if Defendant failed to warn of such defect, users such as Plaintiffs
insureds could suffer personal or property damage.
47. Plaintiffs insureds were within the class of persons to which Defendant owed a
duty of care.
48. The water loss event was the result of a malfunction of or defect in the product.

49. The product contained this defective condition when it left Defendant's
possession and control.
50. Defendant breached its duty of care to Plaintiffs.
51. The acts and omissions that constituted breaches of the duty of care to Plaintiffs
include the following:
a. Defendant failed to assure that the manufacture of the
product was done pursuant to a safer, practical, feasible, more
reliable or otherwise reasonable alternative process or formulation
for the product that could then have been reasonably implemented
and would have prevented or substantially reduced the risk of harm
without substantially impairing the usefulness, practicality, or
desirability of the product.
b. Defendant did not maintain proper, reasonable and
customary quality control or properly inspect the product.
c. Defendant did not properly warn of latent defects or
hazards in the product.
d. Defendant failed to undertake protective measures in the
manufacturing process sufficient to render the product safe and
free of defects that could lead to water leakage and resultant
property damage of the type experienced here.
e. Defendant did not exercise that level of care that would be
reasonable for a manufacturer of this type of product to exercise
under the circumstances.
52. Plaintiffs insureds used the product for its intended purpose and/or for a purpose
that was reasonably foreseeable by Defendant.
53. This count does not seek any damages to the product itself.
54. This count seeks damages to property other than that product.
55. The property damages that this count seeks includes the damages to the structure,
damages to the contents in the house, cleaning costs, moving costs, and additional living
expenses incurred as a result of not having use of the house.56. This product was within the home but was not an integral part of the home's
physical structure.
57. As a direct and proximate result of Defendant's negligence, plaintiff suffered the
damages previously described.
WHEREFORE, Plaintiff respectfully requests the entry of a judgment in its favor in an
amount in excess of $150,000, plus interest and costs as allowed by law.
COUNT II
STRICT LIABILITY AGAINST MTD (USA) CORPORATION
58. Plaintiff hereby incorporates and reavers by reference the allegations preceding
Count I as if fully stated herein.
59. Defendant MTD (USA) Corporation was the manufacturer and/or distributor
and/or seller of the subject coupling nut (also referred to herein as "the product" or "the subject
product").
60. Defendant placed the product into the stream of commerce.
61. This product is the type of product that Defendant is in the business of
manufacturing and/or selling and/or distributing.
62. Defendant expected that the product would reach the user or consumer without
substantial change in the condition in which it was sold.
63. The product reached the user or consumer without substantial change in the
condition in which it was sold.
64. Plaintiffs insureds were users and/or consumers of the product.
65. Plaintiffs insureds used the subject product for the purpose and in the manner for
which it was designed and intended.

66. The subject product was defective and unreasonably dangerous in that it had a
high risk of causing catastrophic flooding if it should fail in the ordinary course of its use.
67. The product was in the defective condition at the time that it left the possession or
control of the Defendant.
68. Defendant failed to adopt a safer, practical, feasible, more reliable or otherwise
reasonable alternative manufacturing process or formulation for the product that could then have
been reasonably implemented and would have prevented or substantially reduced the risk of
harm without substantially impairing the usefulness, practicality, or desirability of the product.
69. Defendant failed to undertake protective measures in the product sufficient to
render the product safe and free of defects that could lead to home flooding (and which did lead
to the flooding of the subject home).
70. The product was expected to and did reach the owner/purchaser of the product
alleged herein without substantial change in its condition.
71. The product was used for its intended purpose and/or for a purpose that was
reasonably foreseeable by Defendant.
72. This count does not seek any damages to the product itself.
73. This count seeks damages to property other than that product.
74. The property damages that this count seeks includes the damages to the structure,
damages to the contents in the house, cleaning costs, moving costs, and additional living
expenses incurred as a result of not having use of the house.
75. This product was within the home but was not an integral part of the home's
physical structure.
10

76. As a direct and proximate result of the unreasonable dangerous defective
condition of the product and its failure, plaintiffs insured incurred the damages previously
described.
WHEREFORE, Plaintiff respectfully requests the entry of a judgment in its favor in an
amount in excess of $150,000, plus interest and costs as allowed by law.
COUNT III
BREACH OF EXPRESS WARRANTY AGAINST MTD (USA) CORPORATION
77. Plaintiff hereby incorporates and reavers by reference the allegations preceding
Count I as if fully stated herein.
78. The subject coupling nut (also referred to herein as "the product" or "the subject
product") was a product and a "good" within the meaning of the Tennessee version of the
Uniform Commercial Code ("UCC").
79. In the course of the purchase of the subject product, Defendant MTD (USA)
Corporation in addition to the warranties created by law issued an express warranty which
warranted that the product would be free of defects in design and/or workmanship and/or would
be merchantable and/or fit for the particular purpose for which it was sold.
80. This warranty extend to the homeowners.
81. The homeowners reasonably relied upon such warranty.
82. The contacts between the homeowners and defendant were sufficient for
defendant to be deemed a "seller" within the meaning of Tennessee's version of the UCC.
83. The subject incident was the result of a malfunction from a defect in the subject
product in the course of its ordinary use.

84. The subject product was defective and unreasonably dangerous in that it had the
defects described above that gave it a propensity to fracture and/or otherwise fail, allowing water
to leak from it in the ordinary course of its use.
85. The subject product contained the defective condition when it left defendant's
possession and control.
86. Plaintiffs used the subject product for its intended purpose and/or for a purpose
that was reasonably foreseeable by defendant.
87. Defendant breached the above warranties by providing the product with the
described defect.
88. Plaintiff provided proper notice to defendant of the defective condition and the
damages caused thereby.
89. The Defendant has failed and refused to provide a reasonable and timely remedy
to the homeowners.
90. As a direct and proximate result of Defendant's breach of its express warranty,
Plaintiff has suffered the previously described damages.
COUNT IV
BREACH OF IMPLIED WARRANTY AGAINST MTD (USA) CORPORATION
91. Plaintiff hereby incorporates and reavers by reference the allegations preceding
Count I as if fully stated herein.
92. The subject coupling nut (also referred to herein as "the product" or "the subject
product") was a product and a "good" within the meaning of the Tennessee version of the
Uniform Commercial Code ("UCC").
93. In the course of the purchase of the subject product, Defendant MTD (USA)
Corporation either directly or through an authorized distributor or vendor extended to thehomeowners' an implied warranty warranting that the product would be free of defects in design
and/or workmanship and/or would be merchantable and/or fit for the particular purpose for
which it was sold, and Plaintiffs insured reasonably relied upon such warranty.
94. This implied warranty extend to the homeowners.
95. The homeowners reasonably relied upon such implied warranty.
96. The contacts between the homeowners and defendant were sufficient for
defendant to be deemed a "seller" within the meaning of Tennessee's version of the UCC.
97. The subject incident was the result of a malfunction from a defect in the subject
product in the course of its ordinary use.
98. The subject product was defective and unreasonably dangerous in that it had the
defects described above that gave it a tendency to fracture and/or otherwise fail, allowing water
to leak from it in the ordinary course of its use.
99. The subject product contained the defective condition when it left defendant's
possession and control.
100. Plaintiffs insured used the subject product for its intended purpose and/or for a
purpose that was reasonably foreseeable by defendant.
101. Defendant breached the above .warranties by providing the product with the
described defect.
102. Plaintiff provided proper notice to defendant of the defective condition and the
damages caused thereby.
103. The Defendant has failed and refused to provide a reasonable and timely remedy
to the homeowners.

104. As a direct and proximate result of Defendant's breach of its implied warranty,
plaintiff has suffered the previously described damages.
105. WHEREFORE, Plaintiff respectfully requests the entry of a judgment in its favor
in an amount in excess of $150,000, plus interest and costs as allowed by law.
COUNT V
NEGLIGENCE AGAINST ZHEJIANG DINGBO PLUMBING
MANUFACTURING CO., LTD
106. Plaintiff adopts and incorporates by reference its previous allegations as though
fully set forth herein.
107. Defendant, Zhejiang Dingbo Plumbing Manufacturing Co., Ltd. designed,
manufactured, sold and/or distributed the subject coupling nut.
108. Defendant, as the manufacturer and/or distributor and/or seller of the subject
coupling nut (also referred to herein as "the product" or "the subject product"), had a duty to
assure that it was designed and manufactured in such a way that it would not contain a latent
defect that would cause it to crack and fail and result in significant water loss in the course of the
ordinary use of the product.
109. Defendant, as the manufacturer and/or distributor and/or seller of the subject
product, had a duty to warn persons who might reasonably use the product about latent
dangerous defects concerning that product.
110. It was foreseeable to Defendant that if Defendant sold and delivered the product
with a latent defect, and if Defendant failed to warn of such defect, users such as Plaintiffs
insureds could suffer personal or property damage.
111. Plaintiffs insureds were within the class of persons to which Defendant owed a
duty of care.

112. The water loss event was the result of a malfunction of or defect in the product.
113. The product contained this defective condition when it left Defendant's
possession and control.
114. Defendant breached its duty of care to Plaintiffs.
115. The acts and omissions that constituted breaches of the duty of care to Plaintiffs
include the following:
a. Defendant failed to assure that the manufacture of the
product was done pursuant to a safer, practical, feasible, more
reliable or otherwise reasonable alternative process or formulation
for the product that could then have been reasonably implemented
and would have prevented or substantially reduced the risk of harm
without substantially impairing the usefulness, practicality, or
desirability of the product.
b. Defendant did not maintain proper, reasonable and
customary quality control or properly inspect the product.
c. Defendant did not properly warn of latent defects or
hazards in the product.
d. Defendant failed to undertake protective measures in the
manufacturing process sufficient to render the product safe and
free of defects that could lead to water leakage and resultant
property damage of the type experienced here.
e. Defendant did not exercise that level of care that would be
reasonable for a manufacturer of this type of product to exercise
under the circumstances.
116. Plaintiffs insureds used the product for its intended purpose and/or for a purpose
that was reasonably foreseeable by Defendant.
117. This count does not seek any damages to the product itself.
118. This count seeks damages to property other than that product

119. The property damages that this count seeks includes the damages to the structure,
damages to the contents in the house, cleaning costs, moving costs, and additional living
expenses incurred as a result of not having use of the house.
120. This product was within the home but was not an integral part of the home's
physical structure.
121. As a direct and proximate result of Defendant's negligence, plaintiff suffered the
damages previously described.
WHEREFORE, Plaintiff respectfully requests the entry of a judgment in its favor in an
amount in excess of $150,000, plus interest and costs as allowed by law.

The provided text is an excerpt from a document filed in this case. For a full understanding of the case, one should read the complete court file, including the response.

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