PRESENT: Koontz, Kinser, Lemons, Goodwyn, Millette, and Mims,
JJ., and Russell, S.J.
ROYAL INDEMNITY COMPANY, AS
SUBROGEE OF FIRST CENTRUM, LLC
AND CENTRUM PRINCE WILLIAM, LP, ET AL.
v. Record No. 091993
TYCO FIRE PRODUCTS, LP
OPINION BY
JUSTICE LEROY F. MILLETTE, JR.
JANUARY 13, 2011
ROYAL INDEMNITY COMPANY, AS
SUBROGEE OF FIRST CENTRUM, LLC
AND CENTRUM PRINCE WILLIAM, LP, ET AL.
v. Record No. 092567
SIMPLEXGRINNELL, LP
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Craig D. Johnston, Judge 1
In this product liability case, we address issues
concerning the statute of repose and breach of warranty. We
conclude that exterior sidewall sprinkler heads are “equipment”
under Code § 8.01-250 and reverse the judgment of the circuit
court that the sprinkler heads are ordinary building materials.
We also hold that a manufacturer’s description of how a
sprinkler head functions does not constitute an express
warranty of future performance.
1
Judge Rossie D. Alston, Jr. ruled on the defendants’
pleas in bar regarding the statute of repose prior to joining
the Court of Appeals. Judge Craig D. Johnston ruled on the
defendants’ pleas in bar regarding the statute of limitations
as to the warranty claims.
BACKGROUND
This case arose out of a fire that started on the exterior
balcony of an apartment building on February 8, 2003. Two
exterior sidewall sprinkler heads installed on two separate
balconies where the fire originated failed to activate, which
allowed the fire to spread to other parts of the building and
adjoining buildings causing substantial damage.
Royal Indemnity Company and American Empire Surplus Lines
Insurance Company (together, Royal) filed an amended motion for
judgment in the amount of $10,317,083.78 against Tyco Fire
Products (Tyco) and SimplexGrinnell, LP (Simplex) alleging that
the sprinkler heads, which were manufactured by Tyco and
installed by Simplex prior to June 1997, failed to properly
activate causing substantial damage to the apartment complex. 2
Royal asserted various negligence-based causes of action
against both Tyco and Simplex, including negligent design and
manufacture of the sprinkler heads, and post-sale duty to warn.
Royal also asserted warranty claims against both defendants,
claiming that the defendants breached an alleged warranty of
future performance.
The parties’ stipulated facts described the sprinkler
heads as follows:
2
Royal, as the property insurer for the apartment complex,
paid for the damage caused by the fire and is subrogated to the
rights of the apartment complex owner.
2
The model F960/Q46 sprinkler head is an
automatic dry sprinkler of the frangible bulb type.
This model contains a sprinkler secured to an
extension nipple that has a seal at the inlet end to
prevent water from entering the nipple until the
sprinkler operates. The seal mechanism at the inlet
end is comprised of a brass plug and O-ring. The O-
ring is fitted into a machined groove on the brass
plug. The plug is attached to a yoke assembly. The
yoke assembly sits upon a watertube. A guide tube
assembly is fitted into the opposite end of the
watertube. The bulb seat sits upon the guide tube
assembly and the bulb sits upon the bulb seat and is
secured in place by the compression screw. The
compression screw is threaded into the frame. The
frame is secured into one end of the outer pipe and
the inlet is secured into the opposite end of the
outer pipe. The inlet is machined with 1” NPT
threads for mating the sprinkler head into a fire
sprinkler system fitting.
. . . .
Under normal service conditions, the F960/Q46
sprinkler head is intended to operate as follows.
When the sprinkler is in service, water is prevented
from entering the assembly by the Plug and O-ring
seal in the inlet of the sprinkler. The glass bulb
contains a fluid that expands when exposed to heat.
When the rated temperature is reached, the fluid
expands sufficiently to shatter the glass bulb, and
the bulb seat is released. The compressed spring is
then able to expand and push the water tube as well
as the guide tube outward. This action
simultaneously pulls outward on the yoke, withdrawing
the plug and O-ring seal from the inlet allowing the
sprinkler to activate and flow water.
In its complaint, Royal alleged that the sprinkler heads
failed to operate properly. Specifically, Royal asserted that
“[s]cientific inspection of the pressure tested sprinkler heads
. . . determined that corrosion existed at the interface
between the brass plug and O-ring assembly and inlet which
3
. . . prevented the inlet plugs from disengaging and operating
as intended upon the breaking of the frangible bulbs.”
Tyco and Simplex filed pleas in bar asserting that the
negligence-based causes of action were barred by the statute of
repose, Code § 8.01-250. After an ore tenus hearing and
receipt of stipulated evidence, the circuit court granted the
defendants’ pleas in bar ruling that the sprinkler heads were
ordinary building materials under the statute of repose.
The defendants also filed pleas in bar arguing that
Royal’s warranty claims were barred by the statute of
limitations. After a hearing, the circuit court sustained the
pleas in bar ruling the warranty claims were barred by the
applicable statutes of limitations. We awarded Royal this
appeal.
DISCUSSION
Royal assigns error to the circuit court’s judgment
sustaining the defendants’ pleas in bar as to the negligence-
based causes of action under the statute of repose, and as to
the warranty claims under the applicable statutes of
limitations.
A. Statute of Repose
Royal argues that the circuit court erred in granting the
defendants’ pleas in bar because it ruled that Royal’s
negligence-based actions were barred by the five-year statute
4
of repose, Code § 8.01-250. The statute provides, in pertinent
part:
No action to recover for any injury to property
. . . arising out of the defective and unsafe
condition of an improvement to real property . . .
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 . . . .
(Emphasis added).
Royal argues that the circuit court erred in concluding
that the sprinkler heads are “ordinary building materials,” and
therefore covered by the statute of repose. According to
Royal, the sprinkler heads are “equipment” under the terms of
the statute. To support this position, Royal cites various
characteristics of the sprinkler heads that this Court has
previously stated were indicative of “equipment” under Code
§ 8.01-250. Specifically, Royal asserts that the sprinkler
heads are finished products, fully assembled by the
manufacturer, and individually packaged. Royal also contends
that the sprinkler heads are not essential to the building, but
are “an adjunct service to the building to protect it from
fire.” Continuing, Royal argues that the sprinkler heads
“perform[] a function other than being a part of the
5
construction[,]” which distinguishes them from ordinary
building materials.
Focusing on our past decisions outlining the “ordinary
building materials doctrine,” Royal concludes that our
jurisprudence “make[s] it clear that ordinary building
materials are generic in nature and are not separate and
distinct mechanical operating products.” Royal asserts that
the sprinkler heads are independent mechanical devices that
have a specific function, and thus are clearly distinguishable
from the items this Court has held to be ordinary building
materials. Finally, Royal contends that the statute of repose
was not intended to protect manufacturers, such as Tyco, who
have the means to protect themselves by testing, engineering,
quality control, and issuing warranties on their products.
We agree with Royal that our prior case law supports the
conclusion that the sprinkler heads are equipment under the
statute of repose. In addressing whether certain items fall
within the protection of the statute of repose, 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.
Jamerson v. Coleman-Adams Construction, Inc., 280 Va. 490, 496,
699 S.E.2d 197, 199 (2010). In considering this issue, we view
6
the facts in the light most favorable to the party prevailing
below, but review de novo the question whether the sprinkler
heads are equipment under Code § 8.01-250. Id. at 496, 699
S.E.2d at 200; Caplan v. Bogard, 264 Va. 219, 225, 563 S.E.2d
719, 722 (2002).
We first addressed Code § 8.01-250 in Cape Henry Towers,
Inc. v. National Gypsum Co., 229 Va. 596, 331 S.E.2d 476
(1985). In interpreting the statute, we stated:
We conclude that the General Assembly intended
to perpetuate a distinction between, on one hand,
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. Unlike ordinary building materials,
machinery and equipment are subject to close quality
control at the factory and may be made subject to
independent manufacturer’s warranties, voidable if
the equipment is not installed and used in strict
compliance with the manufacturer’s instructions.
Materialmen in the latter category have means of
protecting themselves which are not available to the
former. We construe § 8.01-250 to cover the former
category and to exclude the latter.
Id. at 602, 331 S.E.2d at 480. Applying this distinction
between ordinary building materials and machinery and
equipment, we held that exterior panels used in the
construction of condominium buildings were ordinary building
materials. Id.
Next, in Grice v. Hungerford Mechanical Corp., we applied
the same factors and analysis announced in Cape Henry Towers,
7
holding that an electric panel box and its component parts were
ordinary building materials. 236 Va. 305, 307-09 374 S.E.2d
17, 17-19 (1988). In reaching this conclusion, we relied, in
part, upon the fact that
the quality and quantity of the component parts of an
electrical panel box and the instructions for
assembling, wiring, grounding, and installing the
unit during construction of a particular building are
determined by the plans and specifications provided
by the architect or other design professional and
[n]o instructions are received from the manufacturer.
Id. at 309, 374 S.E.2d at 19 (internal quotation marks
omitted). Thus, we held that an electrical panel box and its
component parts – assembled on-site by the electrical
subcontractor pursuant to the instructions by the architect or
other design professional, and without direction from the
manufacturer of the component parts – were ordinary building
materials.
Ten years later, we addressed whether steel panels,
braces, and vinyl liners used in construction of an in-ground
swimming pool were ordinary building materials. Luebbers v.
Fort Wayne Plastics, Inc., 255 Va. 368, 498 S.E.2d 911 (1998).
In holding that these items were ordinary building materials,
we reasoned that the component parts of the swimming pool were:
interchangeable with parts made by other manufacturers;
purchased in bulk from the manufacturer; and constructed and
assembled without direction by the manufacturer. Id. at 373,
8
498 S.E.2d at 913. Additionally, we noted that the
manufacturer merely warranted that the materials were free from
defects in workmanship and welding, and the installation
manuals were merely “general guides.” Id. Most importantly,
we stated that the “items served no function other than as
generic materials to be included in the larger whole and are
indistinguishable . . . from the wall panels . . . in Cape
Henry Towers.” Id.
Next, in Cooper Industries, Inc. v. Melendez, 260 Va. 578,
537 S.E.2d 580 (2000), we concluded that an industrial
switchgear and circuit breakers were equipment under the
statute of repose. In reaching this decision, we observed that
the “switchgear and circuit breakers were each self-contained
and fully assembled by their respective manufacturers[,]” and
that the circuit breakers had been tested by their
manufacturer. Id. at 595, 537 S.E.2d at 590. Our decision was
also based on the determination that the industrial switchgear
and circuit breakers were not “essential to the existence of
the piers” to which they were attached, but comprised the
electrical system for submarines docked at the pier. Jamerson,
280 Va. at 497, 699 S.E.2d at 200 (internal quotation marks
omitted).
In Baker v. Poolservice Co., 272 Va. 677, 636 S.E.2d 360
(2006), we addressed whether a drain cover installed in an
9
outdoor spa was an ordinary building material. In concluding
that the drain cover was an ordinary building material and not
equipment, we noted that the drain cover was mass-produced,
sold primarily to distributors, and once installed, became
incorporated into the spa as a fungible component part. Id. at
690, 636 S.E.2d at 368.
Most recently, in Jamerson, we were presented with the
issue whether a steel platform and pole installed in a
firehouse was an ordinary building material. In our analysis,
we considered certain characteristics of the steel platform and
pole that were utilized in our prior decisions in determining
whether an item is an ordinary building material or equipment.
Jamerson, 280 Va. at 496-98, 699 S.E.2d at 200-01. We
concluded that the steel platform and pole were ordinary
building materials based upon many factors discussed in our
previous decisions. Specifically, we noted that: there was
not an independent manufacturer’s warranty; the items were not
subject to “close quality control” as discussed in Cape Henry
Towers; the installation instructions were merely a guide; the
items were a “means of access essential to and integrated into”
the firehouse; and, finally, we noted that although the items
were unique, this fact “does not per se preclude the item from
characterization as an ordinary building material.” Id. at
496-97, 699 S.E.2d at 200-01.
10
The various factors that were deemed indicative of
ordinary building materials or equipment in the decisions
discussed above support our decision that the sprinkler heads
are equipment under Code § 8.01-250. The sprinkler heads are
“fully assembled” by their manufacturer, and are “self-
contained” mechanical devices. Cooper, 260 Va. at 595, 537
S.E.2d at 590. Additionally, the sprinkler heads are shipped
in individual packages that contain a “technical data sheet,”
which provides information about the product, including
installation instructions. The sprinkler heads are independent
mechanical devices that must be installed according to the
manufacturer’s installation instructions to ensure that they
will function properly.
The sprinkler heads are clearly distinguishable from the
items at issue in our past decisions that we held were ordinary
building materials. Sprinkler heads are not essential
structural components of buildings or other structures, as
distinguished from the exterior panels in Cape Henry Towers,
the component parts of the in-ground pool in Luebbers, and the
pool drain cover in Baker. Sprinkler heads are not used by
builders, architects, or designers as a functional component in
the construction of a building, as was the pole installed in
Jamerson, which was incorporated into the firehouse to provide
access within the building. 280 Va. at 493, 699 S.E.2d at 198.
11
Rather, sprinkler heads are installed into a building’s
sprinkler system to serve a purpose unrelated to the
construction of the building. An engineered sprinkler head is
a piece of fire protection equipment consisting of a discrete
enclosed mechanism containing many parts, with installation
instructions to be carried out by a professional installer to
perform a specialized job. The sprinkler heads are not generic
building materials from which a building may be constructed,
but serve an adjunct function in the building – namely,
protection from fire.
As in this case, sprinkler heads are typically installed
by a company that specializes in the design and installation of
sprinkler systems. However, even if a builder installs the
sprinkler heads, this fact does not transform the sprinkler
heads into ordinary building materials, because in our analysis
we examine the nature of the product’s characteristics. Id. at
496, 699 S.E.2d at 199. So viewed, sprinkler heads are clearly
the type of items that are “subject to close quality control at
the factory and may be subject to independent manufacturer’s
warranties.” Cape Henry Towers, 229 Va. at 602, 331 S.E.2d at
480. In conclusion, our analysis shows that sprinkler heads
are specially designed, self-contained mechanical devices that
perform a specific function, and thus clearly fall within the
meaning of “equipment” under Code § 8.01-250.
12
Because we conclude that sprinkler heads are equipment and
not subject to the statute of repose, we must consider whether
Simplex is a “manufacturer or supplier” of the sprinkler heads.
Code § 8.01-250 exempts from its protection, “manufacturer[s
and] supplier[s] of . . . equipment or machinery.” Simplex
argues that it is neither a manufacturer nor a supplier of the
sprinkler heads. Rather, Simplex contends that it is merely an
installer of the sprinkler heads, and thus is entitled to the
protection of Code § 8.01-250. We agree with Simplex on this
issue.
The parties’ stipulated facts state that Simplex “did not
design, manufacture or assemble any of the sprinkler heads it
installed.” Thus, Simplex is not a “manufacturer” under the
statute of repose. The parties agreed that Simplex “designed
the automatic fire sprinkler system . . . and selected the
components for the fire sprinkler system.” Merely purchasing
the sprinkler heads and designing the sprinkler system does not
make Simplex a “supplier” under Code § 8.01-250. To deem
Simplex a “supplier” merely because it purchased the sprinkler
heads would frustrate the purpose of Code § 8.01-250, which is
to afford protection to parties who have no other means to
shield themselves from potential liability. As we have said,
manufacturers and suppliers of equipment and machinery have the
ability to protect themselves by using close quality controls
13
and making their products subject to warranties that are
voidable if the equipment is not installed or used correctly.
Cape Henry Towers, 229 Va. at 602, 331 S.E.2d at 480.
Installers of equipment, such as Simplex, have no means to
protect themselves from liability for defective products.
Therefore, Simplex is not a “manufacturer or supplier” under
Code § 8.01-250.
For the reasons stated, we will reverse the circuit
court’s judgment sustaining Tyco’s plea in bar, and we will
affirm the circuit court’s judgment sustaining Simplex’ plea in
bar. 3
B. Warranty Claims
The circuit court sustained both Tyco’s and Simplex’ pleas
in bar as to the applicable statutes of limitations. The
circuit court sustained Tyco’s plea in bar ruling that Royal’s
breach of warranty cause of action was not filed within the
four-year statute of limitations for sale of goods contracts
per Code § 8.2-725. The court sustained Simplex’ plea in bar
ruling that Royal’s warranty action was not filed within the
3
Royal also assigned error to the circuit court’s ruling
dismissing its claims against both defendants for post-sale
duty to warn causes of action. However, the circuit court in
granting the pleas in bar simply ruled that all of the
negligence-based causes of action were barred by the statute of
repose. Because Royal failed to present any argument to the
circuit court regarding whether Virginia recognizes a post-sale
duty to warn and the circuit court did not have an opportunity
14
five-year statute of limitations for written contracts per Code
§ 8.01-246. Royal assigns error to the circuit court’s ruling
on both defendants’ pleas in bar.
Regarding Tyco’s plea in bar, the circuit court ruled that
the breach of warranty claims concerning the sprinkler heads
were barred by the four-year statute of limitations per Code
§ 8.2-725, which applies to contracts for the sale of goods.
In making this ruling, the circuit court rejected Royal’s
contention that the “technical data sheet,” which is the
accompanying literature to the sprinkler heads, contained an
express warranty of future performance. Royal argues that the
circuit court erred in ruling that the “technical data sheet”
did not contain an express warranty of future performance. We
disagree with Royal.
Code § 8.2-725(1) provides that a breach of a contract for
sale must be commenced within four years after the cause of
action accrues. A cause of action for breach of a contract for
the sale of goods accrues when the breach occurs. Code § 8.2-
725(2). In a contract for the sale of goods, the breach of
warranty occurs when
tender of delivery is made, except that where a
warranty explicitly extends to future performance of
the goods and discovery of the breach must await the
time of such performance the cause of action accrues
when the breach is or should have been discovered.
to resolve that issue, we will not address this argument on
appeal. Rule 5:25.
15
Code § 8.2-725(2).
It is undisputed that Royal’s breach of warranty claim was
filed more than four years after delivery of the sprinkler
heads. Thus, the issue is whether there was an express
warranty of future performance. Code § 8.2-313, titled
“Express warranties by affirmation, promise, description,
sample[,]” provides:
(1) Express warranties by the seller are created as
follows:
(a) Any affirmation of fact or promise made by
the seller to the buyer which relates to the
goods and becomes part of the basis of the
bargain creates an express warranty that the
goods shall conform to the affirmation or
promise.
(b) Any description of the goods which is made
part of the basis of the bargain creates an
express warranty that the goods shall conform to
the description.
(c) Any sample or model which is made part of
the basis of the bargain creates an express
warranty that the whole of the goods shall
conform to the sample or model.
(2) It is not necessary to the creation of an
express warranty that the seller use formal words
such as “warrant” or “guarantee” or that he have a
specific intention to make a warranty, but an
affirmation merely of the value of the goods or a
statement purporting to be merely the seller’s
opinion or commendation of the goods does not create
a warranty.
16
The “technical data sheet” contains a description of how
the sprinkler heads work. The description, which Royal asserts
is a warranty of future performance, states:
When the F960/Q-46 is in service, water is prevented
from entering the assembly by the Plug and O-Ring
Seal in the Inlet of the Sprinkler. Upon exposure to
a temperature sufficient to operate the Bulb, the
Bulb shatters and the Bulb Seat is released. The
compressed Spring is then able to expand and push the
Water Tube as well as the Guide Tube outward. This
action simultaneously pulls outward on the Yoke,
withdrawing the Plug and O-Ring Seal from the Inlet
and initiating water flow.
There is no evidence in the record showing that this
language became “part of the basis of the bargain” such that it
may be an express warranty of future performance. Indeed, the
language amounts to nothing more than a simple description of
how the sprinkler heads operate. Nowhere in the description of
how the sprinkler heads work does Tyco promise that the
sprinkler heads will operate correctly for a particular period
of time. Manufacturers of products often provide such
information, especially when the products are mechanical
devices. To hold that such language amounts to an express
warranty of future performance would result in Tyco insuring
its sprinkler heads indefinitely. It would be an absurd result
to conclude that a description given by a manufacturer as to
how a device operates amounts to an express warranty of future
performance for an unlimited duration.
17
Additionally, the “technical data sheet” explicitly
provided a one-year warranty that the sprinkler head shall be
“free from defects in material and workmanship.” The warranty
language is under the heading “WARRANTY” in the “technical data
sheet.” If Tyco wished to provide any further warranty, surely
it would have put additional language under this section.
Considering the explicit one-year warranty contained in the
“technical data sheet,” the product description cannot be said
to constitute an express warranty of future performance for an
indefinite period of time. For these reasons, we hold that the
circuit court did not err in sustaining Tyco’s plea in bar.
Regarding the circuit court’s ruling on Simplex’ plea in
bar, Royal argues that the court erred by dismissing the
“warranty cause of action on the grounds that the statements
concerning [the sprinkler heads’] future performance under the
Virginia Uniform Commercial Code did not constitute a warranty
of future performance.” We cannot address this assignment of
error because Royal alleges that the circuit court erred in
making a ruling that it did not make. The circuit court did
not sustain Simplex’ plea in bar on the ground that there was
no warranty of future performance. In fact, the circuit court
ruled that the Uniform Commercial Code did not apply to Royal’s
warranty claim against Simplex because the underlying contract,
which was “for the ‘design and installation of a fire
18
protection system,’” was not a contract “predominately [for]
the sale of goods.” Accordingly, we cannot address Royal’s
argument that the circuit court erred in sustaining Simplex’
plea in bar. Rule 5:25.
CONCLUSION
In the appeal against Tyco, for the reasons stated, we
will reverse in part, affirm in part, and remand this case to
the circuit court. On remand, the circuit court shall address
Royal’s negligence-based causes of action against Tyco.
In the appeal against Simplex, for the reasons stated, we
will affirm the judgment of the circuit court.
Record No. 091993 – Affirmed in part,
reversed in part,
and remanded.
Record No. 092567 – Affirmed.
JUSTICE MIMS, with whom JUSTICE GOODWYN joins, concurring in
part.
While I join that part of the Court’s opinion addressing
Royal’s warranty claims, I cannot join that part addressing the
statute of repose. Regarding that issue, the majority has
reached the correct conclusion that the extension sprinkler
heads at issue are “equipment” for purposes of Code § 8.01-250.
But because the majority opinion continues to apply the
tortured, non-statutory “ordinary building materials” analysis,
I merely concur with the result.
19
In my concurrence to Jamerson v. Coleman-Adams
Construction, Inc., 280 Va. 490, 699 S.E.2d 197 (2010), I noted
that the Court’s statute of repose jurisprudence is so
confusing that we have been called upon to determine whether an
object is an “ordinary building material” six times in 25
years. Id. at 498, 699 S.E.2d at 201. This case marks the
seventh time. Since the “ordinary building materials” analysis
still is not clear and cannot be made clear, there undoubtedly
will be more.
20