Jamerson v. Coleman-adams Constr. Inc

• Decision Date: 16 September 2010
• Docket Number: Record No. 091685.
• Citation: 280 Va. 490,699 S.E.2d 197
• Parties: Kevin JAMERSONv.COLEMAN-ADAMS CONSTRUCTION, INC., et al.
• Court: Virginia Supreme Court

280 Va. 490

699 S.E.2d 197

Kevin JAMERSONv.COLEMAN-ADAMS CONSTRUCTION, INC., et al.

Record No. 091685.

Supreme Court of Virginia.

Sept. 16, 2010.

Paul R. Thomson III (Randall J. Trost; Michie Hamlett Lowry Rasmussen & Tweel, on briefs), Roanoke, for appellant.

Michael A. Montgomery (Rebecca S. Herbig; Charles L. Williams; James C. Skilling; Bowman and Brooke; Butler Williams & Skilling, on brief), Richmond, for appellee Coleman-Adams Construction, Inc.

J. Frederick Watson (Caskie & Frost, on brief), for appellee Virginia Steel & Building Specialties, Inc.

Present: HASSELL, C.J., KOONTZ, KINSER, GOODWYN, MILLETTE, and MIMS, JJ., and LACY, S.J.

OPINION BY Senior Justice ELIZABETH B. LACY.

In this appeal, Kevin Jamerson asks us to reverse the judgment of the trial court dismissing his personal injury action because it was filed beyond the statutory limitation period provided by Code § 8.01-250. We conclude that the steel platform and pole which collapsed causing the injuries sustained by Jamerson are not “equipment, machinery or other article” under Code § 8.01-250 but ordinary building materials. Because Code § 8.01-250 provides a five-year period of repose for claims based on alleged defects in ordinary building materials, we will affirm the judgment of the trial court.

FACTS

In 1997 the Moneta Volunteer Fire Department sent out a request for bids for the construction of a new fire station. Coleman-Adams Construction, Inc. (Coleman-Adams) submitted a bid, which was accepted. Construction began in the spring of 1998. In October, Ricky Tuck, Chief of the Fire Department, informed Charles Evans, vice-president of Coleman-Adams, that the fire station needed a quicker means of access from the second floor to the fire truck and equipment bay located on the first floor than the single staircase contained in the original building plans. Evans and Tuck agreed on the placement of a platform and pole on the second floor that would allow firefighters to access the truck and equipment bay from the second floor of the fire station.

Evans sought a price quote or bid for a three foot by five foot grating platform with rails and a three inch diameter pipe with brace plate and brace angles with all steel prime painted from Virginia Steel & Building Specialties (Virginia Steel), the subcontractor providing structural and miscellaneous steel for the fire station project. Tina Fleshman, vice-president of Virginia Steel, responded with a price quote of $820.00, which Evans accepted. The platform and pole were designated as a change order to the contract between Coleman-Adams and Moneta. Moneta accepted and paid for the change order. Virginia Steel prepared detailed shop drawings based on the requirements submitted by Coleman-Adams, constructed the platform and pole, and delivered the platform and pole to Coleman-Adams at the Moneta fire station site. Coleman-Adams installed the pole and platform in late December 1998 or early January 1999.

On November 4, 2006, Kevin Jamerson, a volunteer firefighter with the Moneta Volunteer Fire Department, was standing on the platform for the slide pole and was injured when the platform collapsed causing him to fall to the concrete floor approximately 20 feet below. Jamerson filed a complaint seeking damages of $10 million from Coleman-Adams and Virginia Steel alleging that their negligence in designing, manufacturing, and inspecting the platform and pole installed in the fire station caused his injuries. Coleman-Adams and Virginia Steel filed pleas in bar asserting that Jamerson's action was barred by the five-year statute of repose contained in Code § 8.01-250. Following an ore tenus hearing, the trial court sustained the pleas in bar and dismissed Jamerson's complaint, ruling that the platform and pole were ordinary building materials subject to the five-year statute of repose. We awarded Jamerson an appeal.

DISCUSSION

Jamerson raises two assignments of error in this appeal. ¹ Initially, Jamerson claims that the trial court erred because it applied “its own test” in determining whether the pole and platform were machinery or equipment. Jamerson also asserts that applying the correct analysis established in our prior cases, the pole and platform are equipment for purposes of Code § 8.01-250 and therefore claims based on defects in the pole and platform are not barred by the five-year statute of repose. We disagree.

The test that Jamerson asserts the trial court created was that, to qualify as equipment, the item in question had to “do something.” However, a review of the record does not support Jamerson's assertion that the trial court created and applied such a definitive test. The court used that phrase as part of its analysis when considering the function of the pole and platform insofar as they became “an integrated part of the entire construction.” The trial court considered all the cases decided by this Court relating to whether an item was equipment or machinery for purposes of the statute, and how the factors identified in each of those cases applied in this case. Accordingly, we reject Jamerson's assertion that the trial court created and applied a new test in resolving the issue in this case.

We next turn to Jamerson's argument that application of this Court's prior cases compels the conclusion that the platform and pole qualify as equipment. We begin with a review of our prior cases. Prior to 1973, the predecessor to Code § 8.01-250, former Code § 8-24.2, prohibited suits against persons designing, planning, supervising construction or constructing any improvement to real property based on defects or unsafe conditions of such improvement five years after the performing or furnishing of such services or construction. In 1973, the General Assembly amended the statute by excluding from the five-year repose period manufacturers or suppliers of equipment or machinery that was installed in or became a part of the real property. 1973 Acts ch. 247. ² The General Assembly, however, did not define “equipment or machinery” for purposes of the statute. Consequently, this Court has been required to develop a body of jurisprudence to determine whether an item installed in a structure or part of real property as an improvement was equipment or machinery for purposes of the statute of repose.

In the first case addressing the 1973 amendment Cape Henry Towers, Inc. v. National Gypsum Co., 229 Va. 596, 331 S.E.2d 476 (1985), this Court determined that the 1973 amendment was intended to create a distinction between “those who furnish ordinary building materials, which are incorporated into construction work outside the control of their manufacturers or suppliers, at the direction of architects, designers, and contractors, and, on the other hand, those who furnish machinery or equipment.” Id. at 602, 331 S.E.2d at 480. The former category is entitled to the five-year statute of repose; the latter category is not. Id. Subsequent cases likewise have focused on whether the item or items in question were ordinary building materials or equipment and machinery Baker v. Poolservice Co., 272 Va. 677, 636 S.E.2d 360 (2006); Cooper Industries, Inc. v. Melendez, 260 Va. 578, 537 S.E.2d 580 (2000); Luebbers v. Fort Wayne Plastics, Inc., 255 Va. 368, 498 S.E.2d 911 (1998); and Grice v. Hungerford Mechanical Corp., 236 Va. 305, 374 S.E.2d 17 (1988). ³ Further, while definitions of equipment or machinery found in other parts of the Code or administratively adopted regulations see, e.g., Virginia Uniform Statewide Building Code § 202.0 (1996 ed.1997) (defining “equipment” and “structure”), may be helpful in some circumstances, they, nevertheless, cannot adequately address in every instance the distinction we found the General Assembly made between ordinary building materials and equipment and machinery for purposes of the application of the statute of repose.

As reflected in these cases, we have identified various characteristics of the items in question, which, in a specific case, led to the determination that the items were or were not ordinary building materials. Nevertheless, we have not held any single characteristic or set of characteristics as determinative of the issue. Each case has been and must be decided based on its own circumstances.

Here, Jamerson reaches his conclusion that the platform and pole are equipment by taking factors cited in previous cases and applying them to his version of the facts. In considering Jamerson's contentions, we consider the facts in the light most favorable to the party prevailing below but review de novo the ultimate question whether the platform and pole are equipment or machinery within the meaning of Code § 8.01-250. Caplan v. Bogard, 264 Va. 219, 225, 563 S.E.2d 719, 722 (2002).

Jamerson, relying on the discussion of warranties attaching to equipment in Cape Henry Towers, 229 Va. at 602, 331 S.E.2d at 480, contends the pole and platform are equipment because Virginia Steel warranted the pole and platform. However, the “warranty” reflected in the record, was not a written warranty with terms but a policy of Virginia Steel to stand behind its work. Furthermore, this “warranty” was never communicated to Coleman-Adams or Moneta. This is not the kind of “independent manufacturer's warranties” which this Court in Cape Henry Towers considered as a reason why materialmen who provide equipment and machinery were excluded from the five-year statute of repose. Id. at 602, 331 S.E.2d at 480.

Similarly, Jamerson asserts that the pole and platform were subject to “close quality control” by Virginia Steel, of the type characteristic of equipment. Cape Henry Towers, 229 Va. at 602, 331 S.E.2d at 480; Cooper, 260 Va. at 593-95, 537 S.E.2d at 589-90; Luebbers, 255 Va. at 373, 498 S.E.2d at 913. The “close quality control” alleged by Jamerson involved the fact that the person welding the steel had passed a test qualifying him to weld structural metals and that the welds were...