District Judge Paul A. Crotty


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Atkore’s steel pipes are coated with ABF II, an antimicrobial film purportedly incompatible with CPVC pipes. Plaintiff Tyco sold its shares in Atkore in 2010. Atkore agreed to indemnify Tyco for up to 85 percent of its losses due to claims arising from alleged incompatibility of ABF II coated pipes with CPVC pipe or fittings. Ongoing litigation in Quebec (the Ideal Litigation) arose after Protection Incendie Ideal (PII) sued Atkore. Due to a rebuttable presumption in products liability cases under Quebec law, the Ideal Litigation required Atkore to prepare reports attributing the leaks PII experienced to various causes, but not mentioning ABF II or incompatibility with CPVC pipes. In Tyco’s breach suit, District Court found Atkore bound to indemnify Tyco in the Ideal Litigation. It must cover 85 percent of Tyco’s expenses and losses resulting from claims therein, to the extent they arose from alleged antimicrobial formula/CPVC incompatibility, now and going forward. Atkore’s indemnification obligation was triggered no later than Nov. 2008 when PII first sued Tyco in Quebec. As there was no basis to find Atkore agreed to act as an insurer, its duty to defend was not greater than its duty to indemnify, which was limited by its 2010 agreement with Tyco.