Volume 49, Issue 6 - June 2014

Legislation&Legal

Wired Glass Incident Leads to Major Lawsuit Against Canadian School

A $5 million (CAD) lawsuit was filed against the Halton Catholic District School Board in Ontario, Canada in late April stemming from an incident last May involving wired glass. As alleged in a press release from the law firm handling the case, Sean Lloyd, then an 18-year-old student at Assumption Catholic Secondary School in Burlington, Ontario, was on his way to class when he tried to push open a hallway door made up mostly of wired glass. Lloyd’s arm went through the glass, which broke and severely lacerated the muscles, nerves and tendons of his right arm.

The injuries required major surgery and have left Lloyd with functional limitations and nerve damage that may be permanent, alleges the release. Represented by Michael Smitiuch of Smitiuch Injury Law PC, Lloyd is now suing the school board for negligence regarding the risks of wired glass.

“It [the school board] was aware for many years, or ought to have been aware for many years, of similar previous incidents or circumstances where wired glass on school doors resulted in injury or harm to pupils and failed to take precautions or preventative measures to ensure that such injury or harm did not occur,” the allegations of the claim read in part, per official court documents.

The documents list a total of 22 allegations of negligence, including that the board “failed to apply proper glazing or post production impact films to the wired glass within the Premises.”

The suit alleges that the Ontario School Boards’ Insurance Exchange (OSBIE), which advises Halton Catholic District and other Ontario school boards on proper safety measures, has a “Risk Management Advisories” section on its website which states that “wired glass can cause horrible injuries” and points to 100-plus claims against schools from 1987-2000 for glass injuries, many of which involve wired glass.

Last November, the Canadian General Standards Board (CGSB) began working on a new edition of the national standard for wired safety glass and would release a draft to the public sometime this year.

“It’s definitely a wake-up call,” says Smitiuch. “We called on the federal government of Canada to immediately enact some changes to the standards, and we called on the Ontario government to make changes to its building code … We’re hoping that the attention that’s been given to Sean’s situation will speed things up.”

The CGSB told USGlass magazine it has established a committee made up of industry members, users and regulators to update the standard on wired glass. It also confirmed that the national standard for “wired safety glass” was first published in 1973 and hasn’t been updated since 1990.

Smitiuch says he expects the case to take about two years to come to trial. In the meantime, a statement of defense will be filed on behalf of the school board, and documents will be exchanged.

“The main thing, out of all of this, is that [Sean] doesn’t want this to happen to any other kids,” says Smitiuch. “Cost should never be an excuse for sacrificing the safety of students.”

Greg Abel, founder of Advocates for Safe Glass, was retained by Smitiuch Injury Law PC as an expert witness on the case. For more than a decade Able, whose son was injured in a wired glass accident in 2001, has been speaking out against the hazards of wired glass. He was instrumental in the state of Oregon’s decision to ban the use of wired glass in hazardous locations subject to human impact in all educational facilities, gymnasiums, athletic facilities, and commercial structures.

According to Abel, “because of all the documents and information on wired glass injuries and the hazards of wired glass before this incident …it took this horrific incident and the tenacity of the law firm representing Sean Lloyd … to go after the wired glass issue …”

He adds that despite injuries and permanent disabilities, Lloyd will be the catalyst for change. “I feel strongly this will bring change to the Canadian building code.”

The Halton Catholic District School Board did not respond to a request for comment.

DOC Stands Ground on Chinese Curtainwall Tariffs
The subject of tariffs on Chinese curtainwall units has once again been making news. In March, the Department of Commerce (DOC) rejected Chinese curtainwall producer Yuanda’s claims in a petition that “complete and finished curtain wall units” were outside the scope of the government’s anti-dumping and anti-subsidy tariffs. Yuanda had argued that the “complete and finished curtain wall units” described in its scope petition were different products than the products outlined in the domestic curtainwall manufacturers’ original scope petition.

Commerce rebuffed Yuanda’s claims and found that the company’s curtainwall units are in fact, covered by the trade remedy tariffs, marking the third time that the DOC has ruled that curtainwall units are covered by the China aluminum “unfair trade” tariffs.

However, Yuanda USA Corp. and foreign exporter/producer Shenyang Yuanda Aluminum Industry Engineering Co. Ltd., along with Permasteelisa, filed suit at the Court of International Trade challenging the ruling. While John D’Amario, Northwest USA sales manager – America division, for Yuanda USA Corp. in Alameda, Calif., says he could not divulge their next move, he told USGlass magazine “this recent ruling merely extends the conflict and will cost the warlords more money. It’s like trying to fill a bucket with water when the bucket has holes in it. Don’t they know there’s a drought in California?”

In 2012, the tariffs were confirmed to include curtainwalls by the request of a scope inquiry filed by The Northern California Glass Management Association that August. In December of 2012, the Department issued its ruling, which was met with backlash by some companies.

Yuanda and Jangho had previously challenged the Commerce Department’s first scope ruling at the Court of International Trade. In January 2014, the Court ruled in favor of U.S. curtainwall companies, affirming Commerce’s decision that curtainwall units are covered by Commerce’s China unfair trade tariffs. On March 25, Yuanda and Jangho appealed this Court of International Trade decision to the Court of Appeals for the Federal Circuit, one step below the Supreme Court. Court documents note that it is appealing that “curtain wall units that are exported from China are subject to the antidumping and countervailing duty orders on aluminum extrusions.”

According to attorney David Spooner of the law firm Squire Sanders, which represents the Curtainwall Coalition (which includes Walters & Wolf, Bagatelos Architectural Glass Systems Inc., and Architectural Glass & Aluminum Co.), the Court of Appeals litigation is just getting started; parties have filed preliminary paperwork, but have not yet filed case briefs.

“Clearly, curtainwall units are covered by the China unfair trade tariffs,” says Spooner. “The U.S. Government and the Federal Courts have ruled time and time again that curtain wall units are subject to high import tariffs. We’re confident that they will continue to do so.”

MPM Silicones Files for Chapter 11
MPM Silicones filed for Chapter 11 bankruptcy on April 13, 2014 in the U.S. Bankruptcy Court in the Southern District of New York. The company has quite a pedigree of ownership according to court documents.

“MPM Silicones is a wholly-owned subsidiary of Momentive Performance Materials US Inc., which is a wholly-owned subsidiary of Momentive Performance Materials USA Inc. which is a wholly owned subsidiary of Momentive Performance Materials Inc., which is a wholly owned subsidiary of Momentive Performance Material Holdings Inc., which is a wholly owned subsidiary of MPM TopCo LLC, which is a wholly owned subsidiary of Momentive Performance Material Holdings LLC.”

These same court documents say that the debtor estimates that funds will be available for distribution to unsecured creditors. Estimated assets and liabilities are both listed at more than $1 billion.

On April 14, Momentive Performance Materials Inc. announced it had entered into a Restructuring Support Agreement (RSA) with certain of its key stakeholders regarding the terms of a balance sheet restructuring plan “that will strengthen the Company’s financial position by reducing long-term debt and enhancing liquidity. The key terms of the RSA include a $600 million rights offering, which will provide a significant equity infusion to the Company, along with the securing of commitments for $1.3 billion of exit financing. To implement this “pre-negotiated” plan, MPM and its U.S. subsidiaries today voluntarily filed to reorganize under Chapter 11 of the U.S. Bankruptcy Code.” All of MPM’s silicones and quartz businesses will continue to operate in the ordinary course throughout the Chapter 11 process, according to the statement. MPM’s operations outside the U.S. are not included in the Chapter 11 proceedings. “The filing relates solely to MPM and not to Momentive Specialty Chemicals Inc. (MSC), which has a fully independent debt capital structure and a separate and strong balance sheet. MSC had liquidity of $773 million as of December 31, 2013 and has no material debt maturities prior to 2018.

On May 23, the company announced that the U.S. Bankruptcy Court has granted MPM final authorization to access the full amount of its $570 million in committed debtor-in possession (“DIP”) financing. The Court also granted final approval for several other orders that, among other things, enable MPM to continue supporting its employees and customers.

“These resources provide MPM with the financial flexibility to continue operating its business in the normal course as it completes its balance sheet restructuring,” said Craig O. Morrison, chairman, president and CEO of MPM.

Industry Tells Capitol Hill: Just Say No to LRRP in Commercial Buildings
The EPA’s Lead Renovation, Repair and Painting Rule (LRRP) continues to take center stage, when it comes to industry lobbying efforts. Specifically, the industry wants to make sure that the rule, which affects homes built before 1978, is not expanded to include commercial buildings. When members of the Window and Door Manufacturers Association (WDMA) took to Capitol Hill in April they talked to lawmakers about the LRRP rule, while also asking them to support neutral green building systems that offer more flexibility than LEED.

Members who spoke to congressional representatives and their staff asked that legislators restore the opt-out provision in the LRRP rule and prohibit the Environmental Protection Agency (EPA) from expanding the rule to include commercial and public buildings.

“My appointments were split between Democrats and Republicans and it seemed that both parties understood and somewhat agreed with the position WDMA was taking on this,” said Ric Jackson, director of government relations, Quanex Building Products.

Members also spoke to legislators urging them to support and approve the Energy Savings and Industrial Competiveness Act (S. 2074, HR 1616) which would spur the use of energy-efficient technologies in commercial and residential structures while fostering job creation. A provision in the Senate version of the bill also ensures that the green building rating systems used by federal agencies do not unfairly exclude certain building materials, according to the WDMA.


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