Present: Hassell, C.J., Koontz, Kinser, Goodwyn, Millette, and
Mims, JJ., and Lacy, S.J.
KEVIN JAMERSON
v. Record No. 091685 OPINION BY SENIOR JUSTICE
ELIZABETH B. LACY
COLEMAN-ADAMS CONSTRUCTION, SEPTEMBER 16, 2010
INC., ET AL.
FROM THE CIRCUIT COURT OF BEDFORD COUNTY
James W. Updike, Jr., Judge
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
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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.
1
Jamerson withdrew a third assignment of error.
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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
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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
2
This amendment was adopted in response to a federal
district court case which concluded that a jute-picking machine
installed in a factory constituted an improvement to the realty
and therefore an action based on negligent manufacture or design
of the machine brought 14 years after the machine was installed
was barred by the five-year statute of repose. Cape Henry
Towers, Inc. v. National Gypsum Co., 229 Va. 596, 599-600, 331
S.E.2d 476, 478-79 (1985)(explaining that the 1973 amendment to
former Code § 8-24.2 was adopted in response to and to change
the rule of Wiggins v. Proctor & Schwartz, Inc., 330 F. Supp.
350, 354 (E.D. Va. 1971), aff’d via unpublished opinion (4th
Cir. March 8, 1972)).
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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
3
In Baker, we rejected suggestions that we abandon the
“ordinary building materials doctrine” finding that the doctrine
is not the result of “flagrant error or mistake . . . and [we]
consider it part of the settled jurisprudence of the
Commonwealth.” Id. at 689; 636 S.E.2d at 367.
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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
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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 inspected by
Virginia Steel and Coleman-Adams. However, the record shows
that the inspection of the pole and platform was a “review,” not
the type of quality control process associated with equipment
and machinery discussed in Cape Henry Towers and its progeny.
Next Jamerson argues that the plans as well as the
installation instructions for the pole and platform were
provided by Virginia Steel and therefore make the pole and
platform equipment. Cape Henry Towers, 229 Va. at 602, 331
S.E.2d at 480, Cooper, 260 Va. at 595-96, 537 S.E.2d at 590,
Luebbers, 255 Va. at 373, 498 S.E.2d at 913. Again, Jamerson’s
characterization is not supported by the record. The record
does show that Virginia Steel prepared the shop drawings for the
job but the shop drawings were prepared based on the dimensions
provided by Coleman-Adams following Moneta’s request for the new
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access point and agreement regarding the adaptation of the
original plan to accommodate the plan. The “installation
instructions” on the shop drawings upon which Jamerson relies
consisted only of suggested types of bolts that could be used to
install the platform.
Jamerson maintains that the pole and platform were not
assembled at the construction site, and thus, were like the
switchgear and circuit breakers held to be equipment in Cooper,
260 Va. at 595-96, 537 S.E.2d at 590. However, while the
location of the parts assembly was discussed in Cooper, the
decision was grounded on the determination that the 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. Id. at
595, 537 S.E.2d at 590. Accordingly, they were not ordinary
building materials incorporated into the pier structure. Id.
In this case, the pole and platform were a means of access
essential to and integrated into the Moneta Volunteer Fire
Department structure.
Finally, Jamerson argues that the pole and platform were
specially designed for the fire department, were not “fungible”
or mass-produced, characteristics of the items determined to be
ordinary building materials in Baker, 272 Va. at 691, 636 S.E.2d
at 368, and Luebbers, 255 Va. at 373, 498 S.E.2d at 913. The
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unique nature of an item, however, does not per se preclude the
item from characterization as an ordinary building material.
Many items in a structure may be of a customized item or design,
but still ordinary building materials for purposes of Code
§ 8.01-250. For example, a non-standard ramp, door, or set of
stairs built to certain specifications to allow access to or in
a home does not by virtue of that one-of-a-kind nature transform
these ordinary building materials into machinery or equipment.
In this case, the pole and platform’s function, like that of the
ramp, door, or stairs, when incorporated into the building
structure was to provide access within the building.
In summary, for the reasons stated, we conclude that the
trial court did not err in holding that the pole and platform
were ordinary building materials incorporated into the
structure. Accordingly, we will affirm the judgment of the
trial court dismissing Jamerson’s complaint as time-barred under
Code § 8.01-250. 4
Affirmed.
JUSTICE MIMS, with whom JUSTICE GOODWYN joins, concurring.
For more than a generation, lawyers and judges have
struggled with the meaning of the undefined, judicially-created
4
Based on this holding we need not address appellees’
assignments of cross-error.
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term “ordinary building materials.” Because I believe the time
has come to return to first principles, i.e. the plain language
of the statute, I concur with the result in this case without
joining the majority opinion.
Confusion about the term is apparent from the number of
times this Court has grappled with Code § 8.01-250. Six
opinions in 25 years have attempted to illuminate what the Court
means by “ordinary building materials.” Yet, since that term
does not appear in the statute and evades clear definition, we
have created more heat than light.
The unnecessary complexity in our jurisprudence is evident
from the argument of counsel in this case and the majority
opinion, which strives to provide direction along the confusing
path. Is there a warranty? If so, is it a written “warranty
with terms” or merely a “policy” to stand behind the work? Is
the work subject to “close quality control?” Has the person
performing the work passed a test qualifying him to do so? Is
there an “inspection” of the work or merely a “review?” Are
there “plans” or “installation instructions?” If so, by whom
were they provided? Are shop drawings sufficient? Where was
the work assembled? Is the work “essential to the existence” of
the structure? Is it “integrated into” the structure? Is the
work “specially designed and unique” or is it “fungible and
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mass-produced?” Is the work from a “customized design?” What
is the “function” of the work?
No wonder the majority opinion warns “we have not held any
single characteristic or set of characteristics determinative of
the issue. Each case has been and must be decided based on its
own circumstances.” But therein lies the fault – in cases laden
with complex facts, an analysis that itself is more complex than
the plain language of the statute requires and is overly
dependent on circumstances offers scant useful legal guidance.
Before outlining the development of “ordinary building
materials” jurisprudence, it is helpful to trace relevant
aspects of the legislative history of Code § 8.01-250 to show
why the jurisprudence got off track. The original statute,
enacted in 1964 as Code § 8-24.2, applied generally to all
improvements to real property.
1
1
It read:
No action to recover damages for any injury to
property, real or personal, or for bodily injury
or wrongful death, arising out of the defective
and unsafe condition of an improvement to real
property, nor any action for contribution or
indemnity for damages sustained as a result of
said injury, shall be brought against any person
performing or furnishing the design, planning,
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. This limitation shall
not apply to actions against any person in actual
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In 1971, the United States District Court for the Eastern
District of Virginia interpreted that statute in Wiggins v.
Proctor & Schwartz, Inc., 330 F. Supp. 350 (E.D. Va. 1971),
aff’d No. 71-1952 (4th Cir. Mar. 8, 1972) (unpublished). The
plaintiff in Wiggins was injured by a 14-year-old machine on his
employer’s premises that was “an essential component of . . .
[the] manufacturing process” and “affix[ed] . . . to a heavy
concrete foundation . . . by means of heavy hold-down bolts.”
Id. at 351. The federal court held that the machine, which was
“permanently affixed to an existing building” by the occupant
solely for its business use, was an improvement to real property
for purposes of the statute. Id. at 353-54.
The Courts of Justice Committee of the House of Delegates
sharply disagreed with the Wiggins court and took the highly
unusual step of publishing a brief “report” explaining this
disagreement:
It is the opinion of this committee that Virginia
Code section 8-24.2 was never intended to cover
or apply to manufacturers or suppliers of any
equipment, machinery or articles whether or not
they become an improvement to real property. It
is the further opinion of this committee that the
decision in Wiggins v. Proctor and Schwartz, 330
possession and control as owner, tenant, or
otherwise, of the improvement at the time the
defective and unsafe condition of such improvement
constitutes the proximate cause of the injury or
damage for which the action is brought.
1964 Acts ch. 333.
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F. Supp. 350 (E.D. Va. 1971), constitutes an
erroneous interpretation of section 8-24.2. It
is therefore the decision of this committee that
the passage of HB 1476 [enacted as 1973 Acts of
Assembly chapter 247] is necessary to correct the
misinterpretation of the said section by the
Federal Court in the Wiggins Case and to aid and
guide other courts in the proper interpretation
of this section of the Code in all other cases
whether now pending or hereafter instituted.
House of Delegates Committee for Courts of Justice, Committee
Report on HB 1476 (Feb. 5, 1973), reprinted in Cape Henry
Towers, Inc. v. National Gypsum Co., 229 Va. 596, 604, 331
S.E.2d 476, 481 (1985).
The 1973 enactment referenced in this report added the
following sentence to the statute:
This limitation shall not apply to the
manufacturer or supplier of any equipment or
machinery or any other articles which are
installed in or become a part of any real
property either as an improvement or otherwise.
1973 Acts ch. 247. 2
Based upon this legislative and judicial history, it is
reasonable to conclude that the underlying statute is general in
its application to “improvements to real property” with specific
exclusions for “the manufacturer or supplier of any equipment or
machinery or any other articles which are installed in or become
2
In 1977 the statute was reenacted as Code § 8.01-250 but
not substantively changed when Title 8 was recodified as present
Title 8.01. 1977 Acts ch. 617.
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a part of any real property either as an improvement or
otherwise.” 3
In particular, there is nothing in the statutory language
or the committee report indicating a legislative intention for
courts to deconstruct complex buildings piece-by-piece and
judicially label each component as an “ordinary building
material” covered by the statute or, by process of elimination,
determine that somehow it is extraordinary and therefore not
covered. Yet that is the result of our jurisprudence.
Beginning with Cape Henry Towers, Inc. v. National Gypsum
Company, 229 Va. 596, 331 S.E.2d 476 (1985), this Court has
declined the opportunity to define the narrow and specific terms
used by the General Assembly. Rather, this decision is where
the judicially-created term “ordinary building materials” first
innocuously appeared:
[T]he General Assembly, in 1973, determined that
it was inadvisable to continue to extend the
protection of the statute to manufacturers and
suppliers of machinery and equipment, and . . . in
response to Wiggins, removed the statutory
protection from such parties.
In 1973, when the General Assembly
contemplated narrowing the ambit of the statute,
it had full opportunity to go further and remove
3
This Court has held that the term “or other articles” in
Code § 8.01-250 has no independent meaning apart from machinery
or equipment. Cape Henry Towers, Inc. v. National Gypsum
Company, 229 Va. 596, 603, 331 S.E.2d 476, 481 (1985). There is
nothing in the statute or legislative history that lends support
to a contrary conclusion.
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its protection from manufacturers and suppliers
of ordinary building materials incorporated into
improvements to real property.
Id. at 601, 331 S.E.2d at 479. The Court then attempted to
structure a definition or set of defining factors for this
judicially-created term. Ordinary building materials “are
incorporated into construction work outside the control of their
manufacturers or suppliers, at the direction of architects,
designers, and contractors.” Id. at 602, 331 S.E.2d at 480. The
Court further distinguished ordinary building materials from
machinery and equipment by noting that the latter 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.” Id. Presumably, by negative
inference, ordinary building materials are not necessarily
subject to such quality control, warranties or instructions.
However, as the foregoing legislative history demonstrates,
it was not necessary to start down the “ordinary building
materials” path. The General Assembly had attempted to correct
a simple error using simple and unambiguous, though undefined,
terms.
Three years after the Cape Henry decision, this Court
decided Grice v. Hungerford Mechanical Corp., 236 Va. 305, 374
S.E.2d 17 (1988). In Grice, two children died from smoke
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inhalation, from a fire allegedly caused by a malfunctioning
electric panel box that was installed in their residence more
than five years before the action was filed. The Court applied
the factors set forth in Cape Henry to find the electric panel
box and its component parts were “ordinary building materials”
even though arguably within the definition of “equipment” as set
forth in the Uniform Statewide Building Code and the National
Electric Code. Id. at 307-09, 374 S.E.2d at 17-19. In finding
that an electric panel box and its component parts were ordinary
building materials and were not equipment, and thus covered by
Code § 8.01-250, the opinion relied upon the following
reasoning:
[T]he 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).
This complex formulation, recited as a summary of the facts upon
which the parties had agreed in that case, is confusing at best.
It stands in stark contrast to the legislature’s use of the
simple term “equipment” for which a workable definition easily
could be formulated.
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The Court’s next foray down the “ordinary building
materials” path was a decade later in Luebbers v. Fort Wayne
Plastics, Inc., 255 Va. 368, 498 S.E.2d 911 (1998), in which it
found that an in-ground swimming pool was subject to Code
§ 8.01-250 since it was composed of ordinary building materials
and was not machinery or equipment. While few could argue with
that holding, the Court again chose not to confine its analysis
solely to the legislature’s terms – “machinery” or “equipment” –
based upon commonly-accepted definitions, and again relied upon
the complex and confusing “ordinary building materials”
rationale. Id. at 373, 498 S.E.2d at 913.
This Court in Luebbers reasoned that the component parts of
the swimming pool were (1) “interchangeable . . . with component
materials made by other manufacturers;” (2) were purchased “in
bulk” by distributors for use in construction “according to the
dimensions and shapes desired by particular customers;” (3) were
“merely” warrantied from “defects of workmanship” and “defective
welding” though the manufacturer “exercises no oversight over
the construction of the pools;” and (4) were subject to
“specification guides and installation manuals as general
guides” though they “did not address the construction” of
specific swimming pools. Consequently, the materials were
“fungible components” and “generic” and thus were ordinary
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building materials rather than equipment. Id. at 373, 498
S.E.2d at 913.
In Cooper Industries, Inc. v. Melendez, 260 Va. 578, 537
S.E.2d 580 (2000), electrical components, i.e. switchgear and
circuit breakers, attached to a pier at Norfolk Naval Base
exploded, seriously injuring two workers and killing a third.
The Court painstakingly recited the “ordinary building
materials” jurisprudence but ultimately held that the electrical
components in fact were “equipment” as contemplated by Code
§ 8.01-250. Id. at 595-96, 537 S.E.2d at 590.
In the most recent case, Baker v. Poolservice Company, 272
Va. 677, 636 S.E.2d 360 (2006), the plaintiff’s assertions
foreshadow this concurrence:
Baker . . . contends the Court’s “extra-statutory
ordinary building materials doctrine” does not
follow the text of Code § 8.01-250 and has caused
considerable confusion. Consequently, Baker
urges the Court to reconsider the . . . doctrine
applied in Cape Henry Towers . . . and later
cases, which Baker asserts has expanded the
provisions of Code § 8.01-250 to persons not
expressly covered by the text of the statute.
Id. at 687, 636 S.E.2d at 366 (internal quotations and citation
omitted). This Court in Baker declined to set aside the
ordinary building materials doctrine based upon the principle of
stare decisis. Id. at 688-89, 636 S.E.2d at 367.
However, stare decisis does not compel adherence to
precedents whose application reveals the infirmity of the legal
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doctrine they enunciate. See, e.g., Harmon v. Sadjadi, 273 Va.
184, 197, 639 S.E.2d 294, 301 (2007) (quoting Nunnally v. Artis,
254 Va. 247, 253, 492 S.E.2d 126, 129 (1997)).
The majority tacitly acknowledges this infirmity in its
opinion:
As reflected in [the Cape Henry line of cases], we
have identified various characteristics of the items
in question, which, in a specific case, led to the
determination that these 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.
The majority opinion effectively concedes that, to
paraphrase Justice Potter Stewart’s famous quip, the Court
cannot define an ordinary building material but “know[s] it when
[it] sees it.” Jacobellis v. Ohio, 378 U.S. 184, 197 (1964)
(Stewart, J., concurring). In short, this circumstantial
approach to Code § 8.01-250 has proven to be unworkable, as
shown by the frequency of these cases and the complexity of the
analysis.
“[S]tare decisis is a basic self-governing principle within
the Judicial Branch, which is entrusted with the sensitive and
difficult task of fashioning and preserving a jurisprudential
system that is not based upon ‘an arbitrary discretion,’”
Patterson v. McLean Credit Union, 491 U.S. 164, 172 (1989)
(quoting The Federalist, No. 78, p. 490 (H. Lodge ed. 1888) (A.
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Hamilton)), and “any departure from [it] demands special
justification.” Arizona v. Rumsey, 467 U.S. 203, 212 (1984).
But stare decisis “is not an inexorable command.” McDonald v.
City of Chicago, 130 S.Ct. 3020, 3063 (2010) (Thomas, J.,
concurring). Unworkability is a traditional justification for
departing from precedent. Montejo v. Louisiana, 556 U.S., ___,
___, 129 S.Ct. 2079, 2088 (2009). “Beyond workability, the
relevant factors in deciding whether to adhere to the principle
of stare decisis include the antiquity of the precedent, the
reliance interests at stake, and of course whether the decision
was well-reasoned.” Citizens United v. Federal Election
Commission, 130 S. Ct. 876, 912 (2010) (quoting Montejo, 556
U.S. at ___, 129 S.Ct. at 2088-89).
While the Cape Henry decision is twenty-five years old,
1985 hardly can be considered antiquity in the Commonwealth of
Virginia. 4 Moreover, the reliance interests at stake here are
minimal, if not non-existent: the majority concedes that the
ordinary building materials doctrine provides no consistent
legal criteria for its application. The weight of these factors
– unworkability, antiquity and reliance – weigh strongly in
favor of setting aside the ordinary building materials doctrine.
4
This Court traces its origin at least to the Supreme Court
of Appeals created in 1776. Va. Const. art. XIV (June 29,
1776), reprinted in 1 William Waller Hening, The Statutes at
Large; Being a Collection of all the Laws of Virginia from the
First Session of the Legislature in the Year 1619 50, 54 (1823).
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Thus, a clearer rule for applying Code § 8.01-250 would be more
beneficial than tenacious reliance on the status quo.
The reductio ad absurdum of ordinary building materials
jurisprudence is found by analyzing the primary product of steel
manufacturers and fabricators. Surely structural steel – beams,
joists, trusses, etc. – that forms the skeleton of large
commercial structures is an ordinary building material and not
equipment or machinery. After all, it serves the same function
as off-the-shelf lumber or bricks in residential structures.
But would it pass the ordinary building materials analysis under
our jurisprudence? Surprisingly that is a close call, with only
one factor undisputedly in its favor.
Structural steel for most commercial construction is
custom-designed and not fungible or mass-produced, is subject to
manufacturing and fabricating to exacting tolerances and minute
specifications, i.e. close quality control, is subject to
multiple inspections, and is subject to manufacturer’s and
fabricator’s warranties. 5 The only factor that unreservedly
5
See ADF Int'l, Inc. v. Baker Mellon Stuart Constr., Inc.,
2000 U.S. Dist. LEXIS 22597 at *7 (M.D. Fla. 2000) (discussing
“detail drawings” and fabrication of structural steel down to
“the size, shape, dimension, angles, bolt holes and connection
of each steel member”); Sterling Millwrights, Inc. v. United
States, 26 Cl. Ct. 49, 54 (1992) (same); Quality Auditing Co. v.
Commissioner, 114 T.C. 498, 500 (2000) (discussing American
Institute of Steel Construction, Inc. Quality Certification
Program); Dakota Gasification Co. v. Pascoe Bldg. Sys., 91 F.3d
1094, 1096 (1996) (contractual warranty for structural steel).
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would cause structural steel to be characterized as an ordinary
building material is the common-sense realization that it is
“essential to the existence” of the structure.
But, if the ordinary building materials analysis were to be
left behind, what would replace it? Returning to first
principles, as with all legislative enactments we must look to
the plain language of the statute. We should begin with the
clear language of the predecessor to Code § 8.01-250 prior to
1973. The statute of repose applied generally to all
improvements to real property. After 1973, this limitation was
constrained to exclude machinery and equipment – terms that are
not difficult to define or understand. We also benefit from the
Courts of Justice Committee’s report and by knowing the narrow
and specific problem the legislature wanted to solve – the
erroneous holding in Wiggins.
Machinery clearly includes the Wiggins scenario: that
which is supplied by the user of the building for the processes
performed therein and which is not related to the function of
the building qua building – manufacturing machinery, printing
presses, large computers, and the like. Equipment, though not
defined in Code § 8.01-250, is defined for construction purposes
generally in the venerable Uniform Statewide Building Code – the
bible for the construction industry. Essentially, it is
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articles subject to the work performed by the mechanical
construction trades: “Plumbing, heating, electrical,
ventilating, air-conditioning and refrigeration equipment,
elevators, dumbwaiters, escalators and other mechanical
additions or installations.” Virginia Statewide Building Code
§ 202.0 (1996 ed. 1997). This Court may borrow the definition
of a term from another Code section, particularly when the
substantive context of the terms, i.e. construction of
buildings, is identical. Where the terms of a section of the
Code are ambiguous and the Court looks for guidance in resolving
the ambiguity, “we are not confined to the language of that
section, but can look to other sections of the Code where the
same terms are employed.” First Nat’l Bank v. Holland, 99 Va.
495, 504, 39 S.E. 126, 129 (1901).
Ideally the General Assembly would define these terms, as
suggested in the legislative report on the 1973 amendment, “to
aid and guide . . . courts in the proper interpretation” of Code
§ 8.01-250. But in the absence of legislative definitions,
lawyers and judges would benefit from clarified jurisprudence
that relies primarily on the plain language of terms the General
Assembly actually used rather than a confusing term created by
the judiciary.
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