Case 2:22-cv-00027-DAK Document 57 Filed 10/10/23 PageID.506 Page 1 of 18
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF UTAH
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`HERCULES INDUSTRIES, INC.,
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`Plaintiff,
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`v.
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`YOGAPIPE, INC.,
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`Defendant.
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`_____________________________________
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`UMC, INC.
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`MEMORANDUM DECISION
`AND ORDER
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`Case No. 2:22-cv-27-DAK-JCB
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`Judge Dale A. Kimball
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`Magistrate Judge Jared C. Bennett
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`Intervenor Plaintiff,
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`v.
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`HERCULES INDUSTRIES, INC, AND
`YOGAPIPE, INC.,
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`Intervenor Defendants.
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`This matter is before the court on Plaintiff Hercules Industries, Inc.’s Motion for Summary
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`Judgment [ECF No. 40] and Intervenor UMC, Inc.’s Motion for Summary Judgment [ECF No.
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`51]. On August 24, 2023, the court held a hearing on the motions. At the hearing, James F. Scherer
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`and Meghan A. Sheridan represented Plaintiff, William J. Akins represented Defendant, and
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`David S. Bridge represented Intervenor UMC. The court took the motion under advisement.
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`After carefully considering the memoranda filed by the parties and the law and facts relevant to the
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`pending motions, the court issues the following Memorandum Decision and Order.
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`Case 2:22-cv-00027-DAK Document 57 Filed 10/10/23 PageID.507 Page 2 of 18
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`BACKGROUND
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`In approximately 2016, YogaPipe began distributing piping material that was sourced from
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`a German manufacturer, WRW Westfaehlische Rohrweke GmbH (“WRW”). In early 2017,
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`YogaPipe began receiving quality-related warranty claims from its customers who purchased
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`WRW-manufactured piping. Most complaints involved burst piping material that resulted from a
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`longitudinal rupture in the piping material along the weld line.
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`In 2018 and 2019, YogaPipe began communicating with WRW about the repeated reports
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`of piping failures. YogaPipe asked WRW to fix the issues with the piping material, including the
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`welding process, and to provide compensation for the bursts and other claims. WRW’s insurance
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`carrier compensated YogaPipe for some of the ruptured and defective piping claims.
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`Hercules claims that despite YogaPipe’s knowledge of the defective piping, in September
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`2019, YogaPipe sold Hercules piping it purchased from WRW. YogaPipe claims, however, that
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`WRW informed it that any problem with the piping was resolved. That same month, Hercules sold
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`the WRW piping from YogaPipe to Utah Mechanical Contractors, Inc. (“UMC”). UMC used the
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`piping material in an HVAC system it installed in a new apartment complex in Salt Lake City,
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`Utah, known as the “Paxton Avenue Project.” Hercules provided YogaPipe’s specific training
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`regarding the product to UMC’s installers. YogaPipe, however, states that UMC tested the piping
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`for 48 hours at 500lbs of pressure to make sure it passed that testing and inspection, but
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`YogaPipe’s installation instructions told UMC to test the piping at 600lbs. Hercules states it had no
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`knowledge of any issues with this piping before purchasing the piping from YogaPipe and
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`reselling it to UMC. Hercules believed the piping was fit for the ordinary purpose for which the
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`products were sold.
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`YogaPipe’s Chief Financial Officer and 30(b)(6) corporate representative, Larry Biricz,
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`Case 2:22-cv-00027-DAK Document 57 Filed 10/10/23 PageID.508 Page 3 of 18
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`testified that all the product YogaPipe sold to Hercules in September 2019, and Hercules resold to
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`UMC, was from WRW. YogaPipe now disputes that testimony, claiming that Hercules has
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`photographs of removed piping from the Paxton Avenue Project made by another German
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`manufacturer, Hewing, that YogaPipe was also selling at that time. But Biricz previously testified
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`that YogaPipe did not get its first Hewing shipment until later in the year, approximately
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`December 2019. YogaPipe also testified that it could check its database to confirm this and, to
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`date, YogaPipe has not provided information contradicting Biricz’s testimony. YogaPipe could
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`provide hard evidence to controvert its own witness, but it has not. Moreover, Hercules clarified
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`that the piping photograph that Biricz identified as being from Hewing was a photograph of
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`exemplar piping that Hercules originally forwarded to Fristche, not the piping from the Paxton
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`Avenue Project.
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`Hercules claims that shortly after completion of the apartment building complex, the
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`YogaPipe which UMC installed in the complex failed, causing extensive damage to the complex.
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`YogaPipe disputes this statement, arguing that there is no cited evidence to support it. UMC
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`expended substantial sums remediating the damage to the complex caused by the defective piping.
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`YogaPipe, however, takes issue with UMC’s alleged damages because it not only repaired
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`damaged piping but also removed and replaced undamaged piping. UMC testified that the pipes
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`failed because of bursting in multiple places. YogaPipe, however, points out that not all piping
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`failed—the piping had a 20% failure rate. However, UMC decided to remove and replace all the
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`piping because the piping was in use in occupied units in the building and there was a known
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`potential for future bursts.
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`UMC submitted a warranty claim to YogaPipe on October 1, 2020, claiming piping
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`failures in multiple units. UMC asserted claims against Hercules and YogaPipe for approximately
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`Case 2:22-cv-00027-DAK Document 57 Filed 10/10/23 PageID.509 Page 4 of 18
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`$570,000, which it claims were its expenses incurred in remediating the damage to the Paxton
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`Avenue Project. Hercules paid UMC $318,849.68 toward settling UMC’s claim for the defective
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`YogaPipe piping. YogaPipe told UMC that it needed more information to substantiate the claims.
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`YogaPipe asked for backup information with pictures to substantiate the invoices and information
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`UMC submitted. UMC again demanded payment on October 29, 2020. Hercules and UMC both
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`demanded payment in November 2020. YogaPipe states that at this same time, UMC was
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`discarding all piping removed from the building. Hercules was unable to find any burst piping.
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`YogaPipe contends that UMC has no documentation showing that the undamaged piping was
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`defective and would have burst. UMC did not test any of the piping that it removed from the
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`building. YogaPipe claims that Hercules has no knowledge, other than what UMC told it, that the
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`piping actually burst. Hercules did not investigate the appropriateness of UMC’s claimed
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`damages. According to YogaPipe, Hercules paid UMC a portion of UMC’s invoices without
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`investigating the charges because UMC is a significant costumer of Hercules and Hercules wanted
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`to take care of them, regardless of what YogaPipe was providing, to protect their relationship with
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`them.
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`YogaPipe no longer purchases piping from WRW. In late 2019, YogaPipe started
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`marketing and selling Hewing piping from a different German manufacturer. Biricz testified that
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`the reason for the transition was that WRW piping was experiencing too many problems.
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`In 2020, WRW filed for bankruptcy protection in German courts, and it remains pending.
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`YogaPipe and a related Canadian entity, ES Gallagher Sales Limited, are pursuing warranty and
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`insurance claims against WRW for the defective piping, against WRW’s insurer in Germany, and
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`against YogaPipe’s insurer in the United States. Andrew Gallagher holds a majority interest in
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`YogaPipe and ES Gallagher, and the claims ES Gallagher are pursuing in ES Gallagher’s name are
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`Case 2:22-cv-00027-DAK Document 57 Filed 10/10/23 PageID.510 Page 5 of 18
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`for both entities. ES Gallagher and YogaPipe have an agreement where ES Gallagher assigns all
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`proceeds related to defective YogaPipe that are obtained from WRW through the German
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`proceedings to YogaPipe.
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`ES Gallagher, on behalf of YogaPipe, filed a Petition in Independent Evidentiary
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`Proceedings in a German court requesting that the German court retain an independent expert to
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`examine the YogaPipe piping material and answer a series of technical questions regarding the
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`piping. In that Petition, ES Gallagher is claiming damages from WRW for providing defective
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`pipes in the current amount of EUR 1,833,799.98, which is an estimate of claims brought by
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`injured parties against ES Gallagher and YogaPipe. The Petition further states that all pipes from
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`the production years 2017, 2018, and 2019 were defective on account of manufacturing errors.
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`Specifically, the welding seams on the aluminum layers of the pipes were not manufactured
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`properly and that led to pipes bursting in operation. Biricz testified on behalf of YogaPipe that
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`YogaPipe’s position was the same as ES Gallagher’s at the time of the 30(b)(6) deposition.
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`In the WRW insolvency proceeding, YogaPipe submitted UMC’s reimbursement requests
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`for defective YogaPipe and remediations in the Paxton Avenue Project, in the amount of
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`$17,100.18. Biricz testified that YogaPipe submitted this claim on behalf of Hercules and UMC in
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`this amount as a placeholder and it expects to supplement the claim with additional UMC
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`reimbursement requests. YogaPipe asserts that E.S. Gallagher’s inclusion of UMC’s
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`reimbursement request in the German proceeding was done as a “placeholder” before it claimed in
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`this litigation that some of the piping was Hewing and before it knew that UMC had destroyed the
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`subject piping after making a claim against YogaPipe.
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` By submitting the Paxton Avenue claim in the WRW insolvency proceeding, Hercules
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`contends that YogaPipe is claiming the Paxton Avenue claim involves WRW’s defective piping.
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`Case 2:22-cv-00027-DAK Document 57 Filed 10/10/23 PageID.511 Page 6 of 18
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`YogaPipe, however, states that ES Gallagher’s allegations in the German proceeding do not
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`constitute judicial admissions by YogaPipe. The two entities have corporate independence.
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`However, Biricz testified that ES Gallagher submitted the claims in the insolvency proceedings on
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`behalf of YogaPipe.
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`In this action, Hercules brought claims against YogaPipe for breach of implied warranty
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`for selling the defective piping to Hercules and indemnity with respect to UMC’s damages. UMC
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`intervened in this action bringing claims against Hercules and YogaPipe. Hercules asserts that
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`YogaPipe is the party liable for UMC’s damages. YogaPipe disputes that because WRW piping is
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`believed to have a “welding problem,” it necessarily means that the piping was defectively
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`manufactured. Hercules admits that the allegedly burst piping was not examined to determine if it
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`had a defect in a longitudinal seam. The piping material that had not burst that UMC removed has
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`also not been examined by anyone to determine if it had longitudinal seam weld problems. It
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`claims that its witness’ deposition testimony that the piping was defective does not prove that the
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`piping was defective.
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`DISCUSSION
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`Hercules= and UMC’s Motions for Summary Judgment
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`Hercules moves for summary judgment on its claims against YogaPipe for breach of
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`implied warranty and indemnity and seeks an order requiring YogaPipe to pay UMC’s remaining
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`damage claims for allegedly defective YogaPipe and to reimburse Hercules for the amount it
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`already paid UMC for the allegedly defective YogaPipe. UMC incorporates by reference the
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`facts and argument in Hercules’ Motion for Summary Judgment because the same facts and law
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`apply to UMC’s claims against YogaPipe and the parties seek the same remedies.
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`Case 2:22-cv-00027-DAK Document 57 Filed 10/10/23 PageID.512 Page 7 of 18
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`1. Breach of Implied Warranty Claim
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`Hercules and UMC seek summary judgment on their breach of implied warranties claims
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`against YogaPipe, arguing that YogaPipe has no evidence that can overcome its admissions that
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`the piping at issue in this case was defective. “The tort claim for breach of implied warranty has
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`largely been subsumed into the doctrine of strict products liability.” Kirkbride v. Terex USA,
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`LLC, 798 F.3d 1343, 1353 (10th Cir. 2015). “’Because this is a diversity case,’” the court applies
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`“’the substantive tort law of Utah.’” Id. at 1348 (quoting Brown v. Sears, Roebuck & Co., 328 F.3d
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`1274, 1278 (10th Cir. 2003)). Utah courts have stated that the elements of a strict product liability
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`claim and an implied warranty of merchantability claim “are essentially the same.” Id. at 1354; see
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`Straub v. Fisher & Paykel Health Care, 990 P.2d 384, 389 (Utah 1999) (recognizing “the elements
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`of strict and breach of warranty ‘are essentially the same.’”); Burns v. Cannondale Bicycle Co.,
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`876 P.2d 415, 416 (Utah Ct. App. 1994) (“Insofar as Burns’s claim for breach of the implied
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`warranty of merchantability is concerned, no separate analysis is required since it is essentially the
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`same as a products liability claim”).
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`To succeed on a manufacturing defect claim, “a plaintiff must prove that (1) the
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`manufacturing defect made the product unreasonably dangerous, (2) the defect was present at the
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`time of the product’s sale, and (3) the defect caused the plaintiff’s injury.” Kirkbride, 798 F.3d at
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`1354 (citing Schaerrer v. Stewart’s Plaza Pharmacy, Inc., 79 P.3d 922, 928 (Utah 2003)). A
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`product is “unreasonably dangerous” if it “was dangerous to an extent beyond which would be
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`contemplated by the ordinary and prudent buyer, consumer, or user of that product in that
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`community considering the product’s characteristics, propensities, risks, dangers, and uses
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`together with any actual knowledge, training, or experience possessed by that particular buyer,
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`user, or consumer.” Utah Code Ann. § 78B-6-702; see also § 78B-6-703 (unreasonably dangerous
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`Case 2:22-cv-00027-DAK Document 57 Filed 10/10/23 PageID.513 Page 8 of 18
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`to a consumer’s property).
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`On behalf of YogaPipe, ES Gallagher asserted in its Petition in the German court that all
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`pipes bought from WRW from 2017-19 were defective on account of manufacturing errors.
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`YogaPipe also asserted that the welding seams on the aluminum layers of the pipes were not
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`manufactured properly despite multiple adjustments to the manufacturing process, such that these
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`aluminum layers were not welded accurately and that this led to countless pipes bursting during
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`operation. YogaPipe’s 30(b)(6) deponent and CFO, Biricz, testified that YogaPipe agreed with
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`all of EG Gallagher’s assertions in the German proceeding. Biricz also testified that all the pipes
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`Hercules purchased from YogaPipe in September 2019 were from WRW and that YogaPipe did
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`not purchase piping from another German manufacturer until December 2019. The WRW piping
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`that YogaPipe sold to Hercules is the piping Hercules sold to UMC and UMC used in the Paxton
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`Avenue Project.
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`As an initial matter, YogaPipe asserts that it has not made any judicial admissions through
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`ES Gallagher. YogaPipe contends that, without judicial admissions, Hercules has no proof of a
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`manufacturing defect or causation necessary to prove Hercules’ claims. Hercules points to a
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`German pleading filed by ES Gallagher, but YogaPipe asserts that ES Gallagher’s allegations in
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`Germany are not YogaPipe’s judicial admissions here. ES Gallagher formally assigned any
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`proceeds ES Gallagher may recover in the German proceeding to YogaPipe, but that assignment
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`states that YogaPipe is not a partner or joint venture with ES Gallagher.
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` YogaPipe also argues that the court cannot consider Biricz’s deposition testimony as
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`judicial admissions either. Hercules asked Biricz if YogaPipe adopted ES Gallagher’s German
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`allegations as truth in this case, and he stated that YogaPipe’s position was the same as ES
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`Gallaghers. YogaPipe claims that Biricz’s testimony does not transform ES Gallagher’s German
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`Case 2:22-cv-00027-DAK Document 57 Filed 10/10/23 PageID.514 Page 9 of 18
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`allegations into judicial admissions.
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`YogaPipe agrees that when a party testifying in a deposition admits a fact that is adverse to
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`a claim or defense, it is generally preferable to treat that testimony as an ordinary evidentiary
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`admission. See Keller v. United States, 58 F.3d 1194, 1198 n.8 (7th Cir. 1995). YogaPipe also
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`asserts that if the court considers ES Gallagher’s allegations in the German proceeding to be
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`relevant in this action, they are ordinary evidentiary admissions that are inconclusive and can be
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`controverted and explained in this case. Asarco, LLC v. Noranda Mining, Inc., 844 F.3d 1201,
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`1212 n.3 (10th Cir. 2017).
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`Hercules states that it is not arguing that ES Gallagher’s judicial admissions are conclusive
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`judicial admissions in this case. But Hercules argues that YogaPipe’s evidentiary admissions are
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`enough to prove the piping was more likely than not defective, the necessary standard for summary
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`judgment on its implied warranties claim. Biricz, YogaPipe’s CFO and 30(b)(6) corporate
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`representative, testified that “all pipes from the production years 2017, 2018, and 2019 were
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`defective on account of manufacturing errors.” He also testified that YogaPipe’s position is that
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`“the welding seams on the aluminum layers of the pipes were not manufactured properly despite
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`multiple adjustments to the manufacturing process, such that these aluminum layers were not
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`welded accurately. This led to and is leading to countless pipes in operation bursting.” Biricz
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`further testified that all WRW piping had this known welding issue.
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`UMC testified that the pipes failed as a result of bursting in multiple places. YogaPipe
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`testified that all the piping at the Paxton Avenue project was the admittedly defective WRW
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`piping. YogaPipe testified that it did not get its first shipment of Hewing piping until December
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`2019. YogaPipe also testified that it could check its database to confirm this, and to date, YogaPipe
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`has not provided information otherwise. Hercules clarified that a photograph it produced in
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`Case 2:22-cv-00027-DAK Document 57 Filed 10/10/23 PageID.515 Page 10 of 18
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`discovery of Hewing piping is unrelated to the Paxton Avenue Project. YogaPipe has claimed the
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`photograph may show that Hewing piping was at the Paxton Avenue Project, but Hercules
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`clarified that the photo was of exemplar piping that Hercules originally forwarded to Fritsche and
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`was not a picture of the piping from the Paxton Avenue Project.
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`To counter UMC’s testimony, Hercules’ testimony, and its own CFO’s testimony,
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`YogaPipe needs to submit admissible evidence at the summary judgment stage. Although the court
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`must “view the evidence and draw any inference in a light most favorable to the party opposing
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`summary judgment, …that party must identify sufficient evidence which would require
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`submission of the case to a jury.” Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024
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`(10th Cir. 1992). “One of the principal purposes of the summary judgment rule is to isolate and
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`dispose of factually unsupported claims or defenses.” Celotex Corp. v. Catrett, 477 U.S. 317,
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`323-24 (1986). The nonmoving party must “go beyond the pleadings and by [its] own affidavits, or
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`by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts
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`showing that there is a genuine issue for trial.” Id.at 324. The nonmoving party “must do more than
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`simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec.
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`Indus. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
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`YogaPipe has not produced any evidence to controvert Hercules’ evidence. YogaPipe
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`cannot merely state that its CFO was asserting incorrect information in his deposition. YogaPipe
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`has not asked to cure his deposition or provided an affidavit changing his testimony or calling its
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`accuracy into question. Biricz submitted an additional declaration that he was not aware of the
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`specific defects in piping sold to Hercules, but he did not change his testimony about his
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`knowledge of the history of defects YogaPipe knew WRW was having with its piping. His
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`additional declaration also vaguely states that he was shown a picture of Hewing piping. He does
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`Case 2:22-cv-00027-DAK Document 57 Filed 10/10/23 PageID.516 Page 11 of 18
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`not state in the declaration that the picture was Hewing piping at the Paxton Avenue Project. His
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`declaration does not contradict Hercules’ testimony that the picture is unrelated to the present
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`dispute. Despite its own record evidence, it suggests that not all the piping at the Paxton Avenue
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`Project was piping YogaPipe got from WRW. But its own CFO stated that all the piping was from
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`WRW, that YogaPipe did not get piping from a different source until later, and that a photograph
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`YogaPipe relies on to support the suggestion that Hewing piping may have been used at the Paxton
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`Avenue Project is not related to the Paxton Avenue Project. YogaPipe has not presented any
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`records demonstrating that it sold Hercules Hewing piping in September 2019 or that it began
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`selling Hewing piping before December 2019. YogaPipe does not have a witness to testify that the
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`picture of Hewing piping is piping at the Paxton Avenue project. YogaPipe makes speculative
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`assertions that are not based on any evidence. Arguments and speculation from counsel are not
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`evidence.
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`YogaPipe claims that summary judgment is inappropriate because the defective WRW
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`piping and the rest of the WRW piping at the Paxton Avenue Project was removed without testing
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`it. But the failure to test the piping does not controvert Biricz’s testimony on behalf of YogaPipe
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`that he personally knew of the defects WRW was having with its piping, the piping YogaPipe sold
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`to Hercules and Hercules sold to UMC was all WRW piping, and it was that known defect in the
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`WRW piping that caused the pipes to burst at the Paxton Avenue Project. UMC testified from its
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`own first-hand knowledge that the piping burst in multiple places. In response to interrogatories,
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`UMC stated that it was not in possession of any YogaPipe piping materials, but it believed that 365
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`Paxton, the owner of the building, had possession of some YogaPipe piping materials that remain
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`in use in the walls of the project as well as possession of some of the failed YogaPipe piping
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`materials that were removed. It does not appear that any party followed up on obtaining that
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`Case 2:22-cv-00027-DAK Document 57 Filed 10/10/23 PageID.517 Page 12 of 18
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`piping. Moreover, UMC responded that it documented a 20% failure rate with the piping on
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`approximately 150 units at the Paxton Avenue Project. UMC may not have tested the piping, but it
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`documented the failure rates of the YogaPipe piping it purchased.
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`YogaPipe asserts that the failure to test the piping precludes summary judgment, but a mere
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`lack of a certain type of evidence does not preclude summary judgment when the evidence that is
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`before the court demonstrates that no reasonable jury could conclude that the piping was not
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`defective. YogaPipe’s current concern or speculation that a fact finder could draw an adverse
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`inference against Hercules and UMC based on the disappearance of the piping is not supported by
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`any record evidence. YogaPipe did not move for a finding of spoliation during discovery or now.
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`There is no evidence before the court that anyone followed up with the 365 Paxton owners about
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`their possession of some of the subject piping despite UMC’s interrogatory response stating it
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`believed the owners had some. There is evidence that Hercules had some WRW piping from the
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`same batch that it was having tested. Again, there is no evidence before the court about the results
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`of that testing or any party following up with that investigation. YogaPipe had ample opportunity
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`to follow up with these lines of investigation if it wanted actual evidence to controvert its own
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`evidentiary admissions.
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`YogaPipe also takes issue with the fact that UMC tested the WRW piping at 500lbs of
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`pressure instead of 600lbs, but it does not provide any evidence demonstrating how this relates to
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`the product’s alleged defect. Biricz states in his supplemental declaration that YogaPipe’s
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`installation instructions advised UMC to test the piping at 600 psi if the piping was to be used on a
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`heat pump. But his declaration does not state that testing the piping at 500lbs would be an
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`alternative cause of the defect. YogaPipe also does not provide an expert or other evidence that
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`would explain the relevance of only testing the piping at 500lbs. There is, therefore, nothing before
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`Case 2:22-cv-00027-DAK Document 57 Filed 10/10/23 PageID.518 Page 13 of 18
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`the court that would indicate that this failure to follow the installation instructions related in any
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`way to the piping defect issue.
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` YogaPipe also argues that Hercules’ and UMC’s testimony show genuine issues of
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`material fact that preclude summary judgment because Hercules and UMC witnesses did not know
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`for sure whose piping was installed in the building. But Biricz testified that he knew what piping
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`YogaPipe sold to Hercules and Hercules sold to UMC. Hercules’ and UMC’s witnesses alleged
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`failure to testify to that question does not controvert Biricz’s testimony. YogaPipe could provide
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`actual documentation from its business records to refute his testimony, but it has not done so.
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`YogaPipe also states that Hercules testified that WRW piping did not fail with 20 to 30 of its other
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`customers who bought YogaPipe piping. But this testimony as to other projects has no relevance to
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`the project at issue. Even if the court could try to view this evidence in the light most favorably to
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`YogaPipe, all that it demonstrates is that piping failures have not occurred for other customers or
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`such failures have not occurred yet. It does not contradict or disprove Biricz testimony regarding
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`the failures at issue in this case. YogaPipe also appears to question UMC’s business decision to
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`remove all the WRW piping at the Paxton Avenue Project before any additional problems
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`occurred. UMC’s ‘business decision” demonstrates the concern UMC had as to the product’s
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`safety. It does not support a finding that the product was not defective or weigh against summary
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`judgment.
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`Proof of a manufacturing defect requires Hercules and UMC to prove that (1) the
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`manufacturing defect made the product unreasonably dangerous, (2) that defect was present at the
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`time of the product’s sale, and (3) the defect caused the plaintiff’s injury. Kirkbride, 798 F.3d at
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`1351. Utah law does not mandate expert testimony to prove the existence of a manufacturing
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`defect, but it does require specific evidence of a manufacturing defect. See Taylor v. Cooper Tire
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`Case 2:22-cv-00027-DAK Document 57 Filed 10/10/23 PageID.519 Page 14 of 18
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`& Rubber Co., 130 F.3d 1395, 1398 (10th Cir. 1997).
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`YogaPipe argues that without an expert in this case, one would expect testimony from a
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`non-expert of such quality as to clearly explain how the piping was manufactured in such a way as
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`to lead to the resulting defect. But YogaPipe’s own witness explained the manufacturing defect
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`WRW had been experiencing with its piping and the cause of it. Biricz cautioned that he is not an
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`engineer as he was explaining his lay person understanding of piping issues. YogaPipe considers
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`Biricz’s testimony speculative, circumstantial evidence, but it only presents arguments to that
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`effect, it does not present any evidence casting doubt on the testimony. YogaPipe states that
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`Hercules is not entitled to summary judgment because it did not go to the effort of getting an
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`engineer to corroborate Biricz’s testimony, but YogaPipe also did not go to the effort of getting an
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`expert to refute the evidence before the court. It’s obvious from the factual evidence Biricz could
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`provide that for some time YogaPipe had been receiving warranty claims from its customers who
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`purchased WRW piping from YogaPipe. YogaPipe discussed the issues with WRW and even
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`though WRW stated it could fix the issues, YogaPipe knew the history of the piping problem. An
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`expert is not required to opine on the history of a known piping issue.
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`YogaPipe argues that Hercules and UMC have not proven that a prudent buyer, consumer,
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`or user of the piping in their community would consider the piping to be dangerous to an extent
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`beyond which they would have contemplated. But it is general common sense that customers do
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`not buy piping with the expectation that it will have at least a twenty percent change of bursting in
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`the first year of use. No expert is needed on that issue. UMC testified that there was a twenty
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`percent failure rate and that failure rate caused UMC to remove all the WRW piping from the
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`building for the safety of its residents. A business is not going to go to the time and expense of
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`removing the remaining piping unless it is unreasonably dangerous. That evidence also
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`Case 2:22-cv-00027-DAK Document 57 Filed 10/10/23 PageID.520 Page 15 of 18
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`demonstrates that the bursting pipes were an objectively dangerous product that YogaPipe’s
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`speculations and arguments have not countered. Hercules and UMC were trained on using and
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`installing piping and YogaPipe in particular. Like any ordinary consumers, they did not
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`contemplate that the piping would burst. Hercules and UMC believed it was fit for the ordinary
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`purpose for which such products were sold and of merchantable quality. The court concludes that
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`Hercules and UMC have demonstrated that YogaPipe’s product was unreasonably dangerous due
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`to a known and admitted defect and that YogaPipe sold the product to them in that state.
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`YogaPipe also argues that Hercules’ alleged damages are speculative. Hercules relies on
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`UMC for damages, citing UMC’s interrogatory answer about its total alleged damages and
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`Hercules’ payment of a portion of those. YogaPipe claims that UMC does not know its own
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`damages because it cannot separate the removal and replacement of the allegedly burst piping
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`from the replacement of undamaged piping. After multiple bursts, YogaPipe’s assertion that UMC
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`had to keep the remaining piping in the building until it also burst, has no basis in law. UMC
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`made a business and safety decision to remove the piping based on the already high failure rate.
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`YogaPipe, who sold the piping to Hercules in a defective condition that was unreasonably
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`dangerous due to the bursting seams, is subject to liability for the damages caused to Hercules and
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`UMC. Accordingly, the court grants Hercules’ and UMC’s Motion for Summary Judgment on
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`the breach of implied warranties claim.
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`2. Indemnity Claim
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`Hercules brings an indemnity claim against YogaPipe because Hercules has already
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`remitted monies to UMC for the damages UMC incurred from the defective YogaPipe piping it
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`installed at the Paxton Avenue Project. “An implied indemnity claim . . . permits a seller of a
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`product to recover its loss from a more culpable seller—typically the manufacturer.” Bylsma v.
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`Case 2:22-cv-00027-DAK Document 57 Filed 10/10/23 PageID.521 Page 16 of 18
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`Willey, 416 P.3d 595, 2017 UT 85, ¶ 34. This “upstream indemnification” places final
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`responsibility for injuries caused by a defective product on the entity initially responsible for
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`placing that product into the stream of commerce. Id.
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`Given the court’s ruling that YogaPipe is responsible for the defect, Hercules is entitled to
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`be indemnified for UMC’s losses. YogaPipe admits that there is no question that the indemnity
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`claim arises out of the same factual scenario as the warranty claim. The indemnity claim is based
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`on the same uncontroverted facts regarding the known manufacturing defect of WRW product
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`UMC installed in the Paxton Avenue Project. Because the court has held YogaPipe responsible for
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`the defect, YogaPipe has primary liability for the damages and losses UMC incurred.
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`Hercules argues that it would be judicially efficient for the court to rule on the indemnity
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`claims at the same time as the breach of warranty claim. Hercules is entitled to be indemnified by
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`YogaPipe for the sums it has already remitted to UMC. YogaPipe, however, argues that the court
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`should deny summary judgment on this indemnity claim because there are genuine issues of
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`material fact.
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`YogaPipe argues that Hercules’