Pippin v. Reilly Industries, Incorporated
| Decision Date | 29 May 2003 |
| Docket Number | No. 02-1782.,02-1782. |
| Parties | LORENA P. PIPPIN, in her capacity as Guardian and Next Friend of James Michael Green, Jr., Joshua Lee Green, and David Matthew Green; W. SHEPARDSON ABELL, in his capacity as co-personal representative of the Estate of James Michael Green; MARVIN T. GAITHER, in his capacity as copersonal representative of the Estate of James Michael Green, <I>Plaintiffs-Appellants,</I> v. REILLY INDUSTRIES, INCORPORATED, formerly known as Republic Creosoting Company, <I>Defendant-Appellee,</I> and ASPLUNDH TREE EXPERT COMPANY; POTOMAC ELECTRIC POWER COMPANY, <I>Defendants,</I> v. WILLARD PACKAGING COMPANY, INCORPORATED; RAYMOND W. SALKELD, JR.; S. L. SALKELD, <I>Third Party Defendants.</I> |
| Court | U.S. Court of Appeals — Fourth Circuit |
Appeal from the United States District Court for the District of Maryland, at Greenbelt. Alexander Williams, Jr., District Judge. (CA-98-3236-AW)
ARGUED:
Joseph G. Petrosinelli, WILLIAMS & CONNOLLY, L.L.P., Washington, D.C., for Appellants. Peter Allan Woolson, ROBINSON WOOLSON, P.A., Baltimore, Maryland, for Appellee.
ON BRIEF:
Oliver Garcia, Erin E. Brophy, WILLIAMS & CONNOLLY, L.L.P., Washington, D.C., for Appellants. Deborah L. Robinson, Brian Mikesh, ROBINSON WOOLSON, P.A., Baltimore, Maryland, for Appellee.
Before WILKINS, Chief Judge, MOTZ, Circuit Judge, and C. Arlen BEAM, Senior Circuit Judge of the United States Court of Appeals for the Eighth Circuit, sitting by designation.
On March 13, 1996, James Green's truck collided at slow speed with a wooden utility pole which fractured 22 feet above ground, at the location of a knot in the wood. A 500-pound transformer attached to the pole fell through the cab of Green's truck, pinning him to the steering wheel, and ultimately killing him. The representatives of Green's estate and the court-appointed guardian of his children (collectively "the Estate") brought this action against several parties, including the original designer and manufacturer of the pole, Reilly Industries, Inc., alleging that the knot in the pole rendered it defective, and that this defect caused Green's death.1 The district court granted summary judgment to Reilly on the ground that Maryland's statute of repose, Md. Code Ann., Courts and Jud. Proceedings § 5-108(a), barred the Estate's action against Reilly. The Estate appeals, contending that the pole did not constitute an "improvement to real property" within the meaning of the statute of repose. We affirm.
In 1967, Potomac Electric Power Company ("PEPCO") ordered the pole from Reilly (then Republic Creosoting Company). PEPCO installed the pole in an industrial park in Gaithersburg, Maryland in 1968. Three transformers were suspended from the top of the pole, as were electrical wires which ran from an existing pole across the street, down the pole, into an underground trench, and ultimately to a warehouse.
When initially installed, the pole did not facilitate the supply of electricity to the parcel of land on which it was located. The pole was located on Parcel E owned by a Mr. Adams, but was used to provide electricity to a warehouse located on the adjoining Parcel D, owned by Mr. and Mrs. Salkeld. Though there was some dispute on this point at oral argument, the only reasonable reading of the record indicates that at the time PEPCO installed the pole on Parcel E, that parcel was undeveloped. After the pole was installed, apparently two buildings were built on Parcel E and Adams had sold the parcel to a Mr. Kimmel.2
Sometime between 1980 and 1989, Kimmel sold a 25-foot right of way to the Salkelds; this right of way included the land on which the pole was located. As the district court put it, "[a]t that point, the utility pole was used to supply power to the parcel of land in which it was attached."
We review the district court's grant of summary judgment de novo, viewing the record in the light most favorable to the nonmoving party, here the Estate. Bryant v. Bell Atlantic Maryland, Inc., 288 F.3d 124, 132 (4th Cir. 2002). Because this is a diversity case, we apply Maryland law. See 28 U.S.C.A. § 1652 (West 1994); Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78.
Maryland's statute of repose provides in pertinent part:
Except as provided by this section, no cause of action for damages accrues and a person may not seek contribution or indemnity for damages incurred when wrongful death, personal injury, or injury to real or personal property resulting from the defective and unsafe condition of an improvement to real property occurs more than 20 years after the date the entire improvement first becomes available for its intended use.
Md. Code Ann., Courts and Jud. Proceedings § 5-108(a).
The district court held that the pole constituted an improvement to real property that had been installed more than 20 years before it was hit by Green's truck, and that the statute of repose, therefore, barred the Estate's action against Reilly. The Estate contends that the pole never constituted an "improvement to real property" within the meaning of the statute of repose. Thus, the issue before us is whether the pole was an "improvement to real property" within the meaning of Maryland's statute of repose.
Maryland courts have discussed the meaning of the term "improvement to real property" in the statute of repose on three pertinent occasions. First, in Allentown Plaza Assocs. v. Suburban Propane Gas Corp., 405 A.2d 326 (Md. Ct. Spec. App. 1979), Maryland's intermediate appellate court held that gas meters improperly attached to an underground pipeline system were not an "improvement to real property," under the statute. The court noted that Id. at 344-45 (citations omitted). It determined that Maryland courts applied the "commonsense" interpretation, and held that the gas meters did not fall within the commonsense meaning of "improvement to real property." Id. at 346-47.
In Rose v. Fox Pool Corp., 643 A.2d 906 (Md. 1994), Maryland's highest court, the Court of Appeals, agreed with the Allentown court that Maryland used a "commonsense" interpretation to discern the meaning of "improvement to real property," but the Rose court rejected the definition of improvement that had been used by the Allentown court. Instead, the Rose court found persuasive:
the narrower definition of "improvement" found in Black's Law Dictionary, which several courts have relied upon in construing the term:
[a] valuable addition made to property (usually real estate) or an amelioration in its condition, amounting to more than mere repairs or replacement, costing labor or capital, and intended to enhance its value, beauty or utility or to adapt it for new or further purposes. Generally has reference to buildings, but may also include any permanent structure or other development, such as a street, sidewalks, sewers, utilities, etc. An expenditure to extend the useful life of an asset or to improve its performance over that of the original asset. Such expenditures are capitalized as part of the asset's cost.
Id. at 918 (). The Rose court further explained that "the nature of the addition or betterment, its permanence and relationship to the land and its occupants, and its effect on the value and use of the property are factors which common sense dictates should be considered in making the case by case determination of whether it is an `improvement to real property' within the meaning of § 5-108." Id. (citing Allentown, 405 A.2d at 332).
Finally, in Hickman v. Carven, 784 A.2d 31 (Md. 2001), the Court of Appeals recently considered again what constitutes an "improvement to real property" under the statute of repose. There, owners of a residential subdivision lot sued the developers of the subdivision maintaining that the developers concealed a burial ground on the lot. The developers contended that removing tombstones from the plot more than twenty years earlier to develop a larger tract of land constituted an integral part of an "improvement to real property" and so the statute of repose barred any damages arising from the removal. The Hickman court "accept[ed] the doctrine of regarding items or work that are an integral component part of a larger improvement as within the ambit of § 5-108(a)." Id. at 38. However, the court concluded that "the removal of [tombstones and other graveyard markers] cannot reasonably be said to be an integral component part of the [land development.]" Id.
On appeal, the Estate contends that these cases support two arguments as to why the pole did not constitute an "improvement to real property."3 First, the Estate argues that the pole was not an essential component of any improvement. Second, the Estate maintains that if the pole was an improvement at all, it was not an improvement to the property on which it was located, and was therefore outside the statutory meaning of "improvement to real property."
Initially, the Estate argues that the pole was not essential to any improvement because PEPCO could have used alternative methods to deliver electricity, such as placing the wires underground. This argument fails, however, because Maryland law does not require that an item be the only means of achieving a particular purpose in order to be an essential, or integral component of an improvement.
In Hickman, 784 A.2d at 37-38, the Court of Appeals adopted the rule that an "item" is "an improvement if it is an integral component of a project that itself would qualify as an improvement," citing inter alia, Lederman v. Cragun's Pine Beach Resort, 247 F.3d 812 (8th Cir. 2001), and Two Denver Highlands Ltd. P'ship v. Dillingham Constr., 932...
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