United States District Court, E.D. Virginia, Alexandria Division
Ellis, III United States district Judge
products liability case arises from the explosion of a gas
fireplace at plaintiffs home in the Bahamas. As a result of
this explosion, plaintiff has sued the alleged manufacturers
of the fireplace-Wolf Steel U.S.A., Inc. and Wolf Steel
Ltd.-and the seller of the fireplace- Bromwell's - The
Fireplace People, LLC, asserting a number of claims,
including breach of the implied warranty of merchantability
and breach of the implied warranty of fitness for a
particular purpose. In addition, the seller seeks
indemnification or contribution from the alleged
manufacturers with respect to the seller's liability for
any of plaintiff s claims. All three defendants filed motions
to dismiss plaintiffs claims in the First Amended Complaint
("FAC"), and the alleged manufacturers filed a
motion to dismiss the seller's cross-claim for
indemnification or contribution. These motions were fully
briefed and argued, and the motions to dismiss were denied in
part and granted in part by the November 12, 2019 Order. More
specifically, the November 12, 2019 Order noted that the
denial of the motions to dismiss the breach of implied
warranty counts and the granting of the motion to dismiss
Bromwell's cross-claim merited more extensive discussion.
This Memorandum Opinion provides that discussion.
required by Rule 12(b)(6), Fed. R. Civ. P., plaintiffs
well-pleaded allegations are assumed to be true, and all
facts are viewed in the light most favorable to plaintiff.
See Mylan Labs, Inc. v. Matkari, 7 F.3d 1130, 1134
(4th Cir. 1993). The FAC contains the following relevant
• Plaintiff, a resident of Florida, purchased two
identical Napoleon fireplaces for $25, 265.00 from
Bromwell's - The Fireplace People, LLC
("Bromwell's") on April 14, 2017 in Falls
Church, Virginia. FAC ¶¶ 1, 10. The Napoleon
fireplaces were manufactured by Wolf Steel U.S.A., Inc. and
Wolf Steel Ltd. (collectively, the "Wolf Steel
entities"). Id. at ¶ 5. Bromwell's is
an authorized dealer of Wolf Steel's fireplaces.
Id. The fireplaces came with an instruction manual
issued by the Wolf Steel entities that contains an express
lifetime limited warranty. Id. at ¶ 11.
• In December 2017, one of the fireplaces was installed
in the master bedroom (the "Bedroom Fireplace") and
the other fireplace was installed in the library (the
"Library Fireplace") of plaintiffs home in the
Bahamas. Both the Bedroom Fireplace and the Library Fireplace
were installed in accordance with the installation and
operating instructions set forth in the instruction manual.
Id. at ¶ 16.
• The two fireplaces burned with different flames. The
Bedroom Fireplace burned with a solid, continuous flame that
was blue/yellow, and the Library Fireplace burned with an
intermittent flame that was orange/yellow. Id. at
¶ 17. The Bedroom Fireplace lit easier than the Library
Fireplace, and the Library Fireplace's pilot made a
ticking sound when lit. Id.
• Plaintiff, through his representatives, reported these
issues with the Library Fireplace to Bromwell's.
Id. at ¶ 18. After multiple telephone
conversations with plaintiffs representatives in April 2018,
Bromwell's informed plaintiff that Bromwell's thought
the issue sounded relatively minor and that there could be
something blocking the pilot light. Id. at ¶19.
• Plaintiff continued to use the fireplace. Id.
at ¶ 20. On the morning of January 21, 2019, plaintiff
and one of his house guests entered the library and decided
to turn on the Library Fireplace. Id. at ¶ 22.
About a minute after plaintiff attempted to start the Library
Fireplace, the Library Fireplace exploded. Id. at
• The explosion caused extensive property damage.
Id. The hurricane proof Loewen windows and doors
were shattered and cracked, and the library's furnishings
were damaged or destroyed. Id. at ¶ 29.
Plaintiff estimates that the known damage to his home is
$750, 000 to$1, 000, 000. Id.
• An examination of the Library Fireplace found that the
explosion was caused by a leak within the Library Fireplace.
Specifically, the examination found that the Library
Fireplace's control valve was manufactured in such a way
that when gas traveled into the Library Fireplace, a
substantial amount of gas leaked out of the valve and filled
the space between the back of the Library Fireplace and the
wall in front of which the Library Fireplace was located.
Id. at ¶ 24. The accumulation of gas due to the
leak from the defectively manufactured control valve led to
the explosion. Id.
• The FAC, filed on August 9, 2019, alleges claims of:
(I) negligent manufacture against the Wolf Steel entities,
(II) constructive fraud against all three defendants, (III)
breach of an express warranty against the Wolf Steel
entities, (IV) breach of the implied warranty of
merchantability against all three defendants, (V) breach of
an implied warranty of fitness for a particular purpose
against all three defendants, (VI) violation of the Virginia
Consumer Protection Act against all three defendants, and
(VII) negligence for failure to warn against all three
November 12, 2019 Order denied the Wolf Steel entities and
Bromwell's motions to dismiss Count IV (Breach of Implied
Warranty of Merchantability) and Count V (Breach of Implied
Warranty of Fitness for a Particular Purpose) of the FAC. All
three defendants argued that the Library Fireplace's
instruction manual effectively excluded or disclaimed one or
both of the implied warranties. Whether the provisions in the
instruction manual operate to exclude or disclaim the implied
warranty of merchantability or the implied warranty of
fitness for a particular purpose is a question of law for a
court. Va. Code § 8.1 A-201(10); Armco, Inc. v. New
Horizon Dev. Co.,229 Va. 561 (1985). Thus, this