Jordan v. Sandwell, Inc.
| Decision Date | 31 January 2002 |
| Docket Number | No. 7:99CV00724.,No. 7:99CV00713.,7:99CV00713.,7:99CV00724. |
| Citation | 189 F.Supp.2d 406 |
| Court | U.S. District Court — Western District of Virginia |
| Parties | Clarence E. JORDAN, Plaintiff, v. SANDWELL, INC., et alia, Defendants. Westvaco Corporation, Plaintiff, v. Sandwell, Inc., et alia, Defendants. |
William Thomas Wilson, Russell Wayne Updike, Nolan R. Nicely, Jr., Wilson, Updike & Nicely, Covington, VA, for Clarence E. Jordan.
James Wilson Jennings, Jr., Elizabeth L. Niles, Woods, Rogers & Hazlegrove, PLC, Roanoke, VA, for Westvaco Corp.
Stephan Forrest Andrews, James W. Walker, James D. Hobbs, Jr., Paul David Anders, Wright, Robinson, Osthimer & Tatum, Richmond, VA, Paul C. Kuhnel, Wooten & Hart, Roanoke, VA, Robert Francis Redmond, Jr., LeClair Ryan, A Professional
Corp., Richmond, VA, for Defendants.
These two cases, which involve a plaintiff allegedly injured when superheated water erupted from a tower at a paper mill and scorched his back, were consolidated for pretrial proceedings. The two defendants, Sandwell Engineering, Inc. ("Sandwell") and U.S. Filter Corporation ("U.S. Filter")1 have moved for summary judgment against the two plaintiffs, Clarence Jordan and Westvaco Corporation ("Westvaco"). After carefully considering the parties' filings (which were voluminous, to put it mildly) and oral arguments, the Court rules on the motions seriatim as is outlined below.
Plaintiff Jordan was an employee of Manpower, Inc., engaged in work on the site of Plaintiff Westvaco's Covington paper mill. The paper mill itself is a large and technically complex factory with varied pieces of equipment. One by-product of the paper making process is contaminated water, to which the parties refer as "foul condensate." In essence, the mill cleanses the foul condensate by boiling it; the water, transformed into gas, floats upward purified while the contaminants, still solid, fall downwards and otherwise find their way to disposal. The structure in which this takes place is a tower-like edifice called a "stripper." The newly cleansed water leaves the stripper and ends up in a "standpipe," which is open at the top.
Before the water is boiled in the stripper, it is heated up to near-boiling in a unit called the "heat exchanger." The hot water exiting the stripper also flows into the heat exchanger, where it transfers its heat to the water entering the stripper and supplies the thermal energy needed for the warming-up process. Thus, the heat exchanger serves both to cool down water exiting the stripper at boiling temperatures and heat up water entering the stripper to near-boiling temperatures.
On the day on which Mr. Jordan suffered his injury, some sort of malfunction in the system occurred and water ceased flowing into the stripper. The water leaving the stripper flowed into the heat exchanger but because there was no longer water flowing into the stripper, there was no impure, incoming water with which the already superheated water could exchange heat and it retained its high temperature. When the superheated water reached the standpipe, which had much cooler contents, the result was a "geyser." Boiling water spewed out of the standpipe and onto Mr. Jordan, burning him severely.
After mediation, Mr. Jordan settled the claims he had against Westvaco for one million dollars. He then filed a complaint against Sandwell and U.S. Filter, alleging design malpractice. Both defendants had participated in the design and construction of the improvements to the paper mill in the early 90's. Each had also had some involvement with the mill as late as 1995. Westvaco also filed a separate suit against both defendants, alleging that the defendants were contractually obligated to indemnify Westvaco for all or some portion of the million dollars it had paid to Mr. Jordan.
Both defendants have now moved for summary judgment on the claims against them.
The standards under which this Court must consider a summary judgment motion are well-established. Upon a motion for summary judgment, the Court must view the facts, and inferences to be drawn from those facts, in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Nguyen v. CNA Corp., 44 F.3d 234, 236-37 (4th Cir.1995). Summary judgment is proper where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). "Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole." Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
The parties agree that Virginia law governs this diversity-of-citizenship action. Sandwell's basis for its motion is the Virginia statute of repose, Va.Code. § 8.01-250 (Michie Supp.2001). That statute provides that
no action to recover for any injury to property, real or personal, or for bodily injury or wrongful death, arising out of the defective or unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained as a result of such injury shall be brought against any person performing or furnishing the design, planning, surveying, supervision of construction, or construction of such improvement to real property more than five years after the performance or furnishing of such services and construction.
The limitation prescribed in this section shall not apply to the manufacturer or supplier of any equipment or machinery or other articles installed in a structure upon real property ...
Sandwell maintains that the services that it performed for Westvaco, which allegedly caused Mr. Jordan's injuries, were performed from 1989-91. Mr. Jordan filed his complaint in 1999. According to Sandwell, the complaint is untimely under the statute of repose, which under Sandwell's theory would extinguish any actions filed against it after 1996.2 Mr. Jordan replies that Sandwell engaged in other, later activities at the Sandwell site which reset the repose period and render his action timely.
The language of the statute bars actions (1) for personal injuries (2) against a designer, planner, surveyor, or constructor (3) of an improvement to real property (4) who is not a manufacturer or supplier of equipment or machinery (5) when those actions are filed more than five years after the defendant furnished the services in question. The parties dispute each of these aspects with varying degrees of vigor. The Court will therefore address each in turn.
The statute of repose applies, by its own terms, to actions for "personal injuries." Mr. Jordan claims that the statute should not apply because although he has filed claims for negligence, he also asserts a claim for breach of warranty. Under his theory, Sandwell warranted that it had safely constructed the Westvaco mill, when in fact it had not done so. The warranty counts of his action sound in contract, not tort, and therefore fall outside § 8.01-250.
The Court finds this argument to be without merit. Mr. Jordan obviously claims compensation in tort for injury to his person. This Court is aware of no Virginia law directly construing this aspect of the statute of repose. However, this situation is conceptually similar to Friedman v. Peoples Service Drug Stores, Inc., 208 Va. 700, 160 S.E.2d 563 (1968). There the plaintiff tried to avoid the personal injury statute of limitations (two years under § 8.01-243) by pleading his claims as breaches of warranty, which have a longer limitations period under § 8.01-246. The Virginia Supreme Court rejected the plaintiffs efforts: "[T]he object of an action and not its form determines which statute of limitations is applicable."3 Likewise it seems logical that the object of an action and not its form should determine whether the statute of repose is applicable. Because this is an action "to recover for ... bodily injury," see § 8.01-250, the statute of repose can apply regardless of whether the complaint sounds in tort or contract. In addition, the Court's holding harmonizes with that of the Massachusetts Supreme Court in McDonough v. Marr Scaffolding Co., 412 Mass. 636, 591 N.E.2d 1079, 1083 (1992) ().
Jordan's claim against Sandwell meets the first element of the § 8.01-250 test.
By its terms, the statute protects "any person performing or furnishing the design, planning, supervision of construction, or construction" of the improvements that the statute covers. Sandwell submits that the services it provided fall under the statute. In opposition, Mr. Jordan urges that the statute does not apply to Sandwell because the services that Sandwell provided "were much broader than the limited services ... to which § 8.01-250 applies." See Plaintiff's brief at 8, 22.
The Court finds that Sandwell has the better of this argument. Although he cites very little to depositions or affidavits, Mr. Jordan complains in his brief that Sandwell was responsible for "layout" and "coordination" of the projects, which sounds to the Court like "design" and "supervision of construction."4 Id. at 22. Sandwell "set forth the parameters and specifications" for the project. Id. In other words, it "designed" the system. § 8.01-250. It "was involved in determining issues related to safety, warning, testing, etc.," Plaintiff's Brief at 22, which again seems like design. Sandwell "was responsible for the interconnection of various piping lines"—for constructing them—and "was aware of new systems and components," as a designer and constructor no...
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...examined the Virginia statute of repose, a statute similar to the District of Columbia statute. See id. (citing Jordan v. Sandwell, Inc., 189 F.Supp.2d 406 (W.D.Va.2002)). However, the Court notes that in that case the Virginia Court held that there was no need to address the severability o......
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