United States District Court, W.D. Washington, Seattle
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT
VIRACON'S MOTION TO DISMISS FIRST AMENDED
BARBARA JACOBS ROTHSTEIN U.S. DISTRICT COURT JUDGE.
King County (“King County”) instituted this
action against Defendants Viracon, Inc.
(“Viracon”), Quanex IG Systems, Inc.
(“Quanex IG Systems”), and Truseal Technologies,
Inc. (“Truseal”), alleging common law fraud and
violations of Washington's Consumer Protection Act and
Washington's Product Liability Act based on the
construction of a building located in downtown Seattle that
is own by King County. See Dkt. No. 12. King County
seeks compensatory as well as punitive damages and further
asserts that Defendants are jointly and severally liable for
its damages. Id.
before the Court is Viracon's motion to dismiss King
County's first amended complaint pursuant to Federal
Rules of Civil Procedure 12(b)(6) and 9(b). Dkt. No.
Viracon argues that King County's claims under the
Washington Product Liability Act, for joint and several
liability, and punitive damages failed to state a claim on
which relief can be granted and therefore are subject to
dismissal under Rule 12(b)(6). Viracon also argues that King
County's common law fraud and Washington Consumer
Protection Act claims are subject to dismissal under Rule
9(b) because the claims are not pled with particularity. King
County opposes the motion. Dkt. No. 35. Having reviewed the
motion, the opposition thereto, the record of the case, and
the relevant legal authorities, the Court will grant
Viracon's motion to dismiss the Washington Products
Liability Act claim pursuant to Rule 12(b)(6), strike King
County's request for punitive damages as premature, and
deny the motion as to the common law fraud and Washington
Consumer Protection Act claims. The reasoning for the
Court's decision follows.
County is a government entity and political subdivision of
the State of Washington. Dkt. No. 12 at ¶ 1.1. Viracon
is incorporated and headquartered in Minnesota and in the
business of manufacturing insulating glass units
(“IGUs”) for distribution and sale throughout the
United States. Id. at ¶ 1.2. At the center of
this lawsuit is an office building-“the Chinook
Building”- located in Seattle, Washington that is owned
by King County. Id. at ¶ 5.1. The Chinook
Building has what the parties refer to as a
“curtainwall” exterior-an exterior comprised of
IGUs that were manufactured and sold by Viracon. Id.
at 5.2. The IGUs consist of double paned windows with a
hermetically sealed air space between the panes of glass that
provides thermal and acoustical insulation. Id. at
5.3. Polyisobutylene-based sealant (“PIB-based
sealant”) is used to seal the window panes.
Id. at ¶ 5.4.
County alleges that the PIB-based sealant Viracon used to
create the IGUs' hermetic seal is failing, causing a film
to migrate “into the sightlines and glass of the
[IGUs].” Id. at 5.10. The County alleges that
the film impairs visibility and affects the overall
appearance of the Chinook Building. Id. According to
King County, the film “is present with varying degrees
of severity on all of the Building's nearly 3, 000
[IGUs].” Id. at 5.9. King County further
asserts that the industry standard is to use black PIB-based
sealant in IGUs because the black sealant “include[s]
an ingredient called carbon black that protect[s] the PIB
from degrading in sunlight.” Id. at 5.12.
However, King County alleges, instead of using black
PIB-based sealant in the IGUs for the Chinook Building,
Viracon sealed the IGUs with gray PIB-based sealant that was
manufactured by Quanex I.G. Systems and Truseal. According to
King County, Viracon, Quanex I.G. Systems, and Truseal knew
that the gray PIB-based sealant was “defective and its
performance  inferior to that of [b]lack PIB” and, as
such, the use of gray PIB-based sealant would render the IGUs
“[un]suitable for their intended purpose” on
the Chinook Building. Id. at 5.13.
King County claims, at the time that the IGUs with the gray
PIB-based sealant were installed on the Chinook Building,
each of the Defendants knew of other buildings that had
Viracon-manufactured IGUs with gray PIB-based sealant that
were experiencing the same issues that the Chinook Building
is now experiencing. Id. at 5.14. King County
alleges that Viracon was aware of these issues at least two
years before the IGUs were installed on the Chinook Building.
Id. at 5.13. Therefore, King County charges, Viracon
“understood and knew that the types of damages King
County complains of [in this lawsuit] were likely to occur,
more likely to occur than if standard [b]lack PIB were
[sic] used in the [IGUs], and did nothing to prevent
the [g]ray PIB from reaching the marketplace, or prevent the
installation on the Building of [IGUs] using the [g]ray
PIB.” Id. at 5.15. Lastly, King County alleges
that it could do nothing to avoid its damages, by negotiation
or otherwise, because only Defendants “knew of the
defect and covered it up with their misrepresentations and
nondisclosure.” Id. at 5.15.
STANDARD OF REVIEW
court construes the complaint in the light most favorable to
the non-moving party when considering a motion to dismiss
under Rule 12(b)(6). Livid Holdings Ltd. v. Salomon Smith
Barney, Inc., 416 F.3d 940, 946 (9th Cir. 2005). The
court must accept all well-pleaded allegations of material
fact as true and draw all reasonable inferences in favor of
the plaintiff. See Wyler Summit P'ship v. Turner
Broad. Sys., Inc., 135 F.3d 658, 661 (9th Cir. 1998).
“To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Iqbal, 556
U.S. at 663.
addition, Rule 9(b) requires that, when fraud is alleged,
“a party must state with particularity the
circumstances constituting fraud....” Fed.R.Civ.P.
9(b). Thus, a party alleging fraud must “set forth more
than the neutral facts necessary to identify the
transaction.” In re GlenFed, Inc. Sec. Litig.,
42 F.3d 1541, 1548 (9th Cir.1994), superseded by statute on
other grounds. “Averments of fraud must be accompanied
by ‘the who, what, when, where, and how' of the
misconduct charged.” Vess v. Ciba-Geigy Corp.
USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (quoting
Cooper v. Pickett, 137 F.3d 616, 627 (9th
Cir.1997)). “Rule 9(b) serves three purposes: (1) to
provide defendants with adequate notice to allow them to
defend the charge and deter plaintiffs from the filing of
complaints ‘as a pretext for the discovery of unknown
wrongs'; (2) to protect those whose reputation would be
harmed as a result of being subject to fraud charges; and (3)
to ‘prohibit [ ] plaintiff[s] from unilaterally
imposing upon the court, the parties and society enormous
social and economic costs absent some factual
basis.'” Kearns v. Ford Motor Co., 567
F.3d 1120, 1125 (9th Cir. 2009) (quoting In re Stac
Elecs. Sec. Litig., 89 F.3d 1399, 1405 (9th Cir.1996)
(internal quotations omitted, brackets in original)).
stated above, Viracon moves to dismiss each of King
County's claims against it; this order addresses each
claim in turn.
The Washington Product Liability Act Claim Is Barred by the