PRESENT: All the Justices
HOPE T. LUEBBERS, ADMINISTRATRIX
OF THE ESTATE OF
DENNIS GERARD LUEBBERS, DECEASED
OPINION BY
v. Record No. 971039 JUSTICE LAWRENCE L. KOONTZ, JR.
February 27, 1998
FORT WAYNE PLASTICS, INC.,
D/B/A FORT WAYNE POOLS, INC.,
ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
Oliver A. Pollard, Jr., Judge
The issue we consider in this appeal is whether certain
items used in the construction of a swimming pool are ordinary
building materials rather than “equipment” within the meaning of
Code § 8.01-250, a statute of repose.
The essential facts are not in dispute. Fort Wayne
Plastics, Inc., doing business as Fort Wayne Pools, Inc. (Fort
Wayne), was a manufacturer of various structural component
materials for in-ground swimming pools. These items included
steel panels, braces, and vinyl liners used in conjunction with
aluminum coping, for which Fort Wayne was a distributor, to form
the walls and bottoms of the pools. 1
1
In general terms, individual steel panels are bolted
together to produce the form for the walls in the desired
dimensions and perimeter shape of a particular pool. Vinyl
liners of the same dimensions are shaped to form an inner lining
for this form. The coping acts as a receptor on the top of the
steel pool walls into which the liner is snapped to create a
watertight structure.
Prestige Industries, Inc. (Prestige) was a distributor of
swimming pool kits and related materials. Prestige purchased in
bulk steel panels, braces, and vinyl liners from Fort Wayne and
held them in its warehouse until it resold them as parts of pool
kits to local swimming pool contractors or individuals.
Prestige also ordered in bulk specification guides and
installation manuals produced by Fort Wayne that described the
proper use of its materials in the construction process. In
addition, Prestige purchased other items to be used in the
construction of swimming pools, such as fitters, pumps, diving
boards, and pool slides, from other sources.
In mid-1985, Prestige received an order for the component
materials necessary for the construction of a 16 ½ foot x 35 ½
foot “Grecian style” in-ground swimming pool from Crystal Pools
of Petersburg, 2 a swimming pool retail and construction company.
Prestige supplied materials, including the steel panels, braces,
and a vinyl liner manufactured by Fort Wayne, that were
ultimately incorporated into the swimming pool in question at a
private residence. Prestige also provided Crystal Pools with a
custom specification sheet that it had developed in order to
2
Crystal Pools of Petersburg is the trade name of the
unincorporated business of Bea L. and Richard W. Fitzke. The
Fitzkes also operate under the name of Fitzke & Sons. These
defendants will be referred to collectively in this opinion as
“Crystal Pools.”
2
accommodate design modifications or requested changes by the
homeowner. Although it contained specifications similar to
those found in Fort Wayne’s publications, this specification
sheet was designed expressly for the construction of this pool.
In addition to the materials manufactured by Fort Wayne, Crystal
Pools purchased through Prestige the vermiculite material for
the pool bottom, pumps, filters, hydrotherapy equipment, steps,
and main drains necessary to construct the finished swimming
pool in conformity with the specifications and requirements of
the homeowner.
Thereafter, sometime in early 1986, Crystal Pools completed
the construction of the swimming pool. On June 12, 1994, Dennis
Gerard Luebbers was a guest at the home of Kathryn E. Hedrick
where Crystal Pools had constructed this pool. On that day,
Dennis Luebbers died as a result of an accident that occurred
while he was swimming in her pool. 3
On November 6, 1995, Hope T. Luebbers, administratrix of
Dennis Luebbers’ estate, filed suit against Fort Wayne,
Prestige, Crystal Pools, and Hedrick. Relevant to this appeal,
the suit charged that the liability of Fort Wayne and Crystal
3
Hedrick was not the homeowner when the pool in question was
constructed. However, she was the homeowner at the time of the
death of Dennis Luebbers, and she is a party defendant in the
underlying suit in this case. She is not a party to this
appeal.
3
Pools arose from the negligent design, manufacture, and
installation of the component parts incorporated into the
finished swimming pool. Fort Wayne and Crystal Pools filed
affirmative pleas in bar asserting that the five-year limitation
provided by Code § 8.01-250 barred the plaintiff’s cause of
action. The trial court sustained the pleas and granted summary
judgment for Fort Wayne and Crystal Pools, finding that the
materials manufactured by Fort Wayne and used in the
construction of the pool by Crystal Pools were not “equipment”
within the meaning of Code § 8.01-250. We awarded plaintiff
this appeal. 4
In pertinent part, Code § 8.01-250 provides:
No action to recover for . . . wrongful death,
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 of furnishing of such service 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 . . .; rather each such
action shall be brought within the time next after
such injury occurs as provided in §§ 8.01-243 and
8.01-246.
There is no dispute that the swimming pool in question
constitutes “an improvement to real property” contemplated by
4
Prestige is not a party to this appeal.
4
this statute. Additionally, there is no dispute that
plaintiff’s suit was filed more than five years after the
construction of this pool was completed. Accordingly, the focus
of our analysis is on the exclusion provided by the second
paragraph of this statute.
We have previously addressed the application of Code §
8.01-250 in Cape Henry Towers, Inc. v. National Gypsum Co., 229
Va. 596, 331 S.E.2d 476 (1985). There, we held that this
statute applies to “those who furnish ordinary building
materials, which are incorporated into construction work outside
the control of their manufacturers or suppliers.” Id. at 602,
331 S.E.2d at 480. With regard to the application of the
exclusion provided by the second paragraph of the statute, we
reasoned that equipment is distinguished from ordinary building
materials on the ground that “[u]nlike ordinary building
materials, . . . equipment [is] 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.
In Cape Henry Towers, we held that exterior wall panels
used in the construction of condominium units were ordinary
building materials and not equipment within the meaning of Code
§ 8.01-250. Id. Following that case, we held in Grice v.
5
Hungerford Mechanical Corp., 236 Va. 305, 374 S.E.2d 17 (1988),
that an electrical panel box and its component parts received
from the manufacturer without instructions for their use and
installation were ordinary building materials and not equipment
within the meaning of this statute. Id. at 308-09, 374 S.E.2d
at 18-19.
In the present case, plaintiff contends that the
prefabricated structural component materials manufactured by
Fort Wayne and installed by Crystal Pools to construct the
finished swimming pool were not ordinary building materials,
but, rather, were “equipment” within the meaning of Code § 8.01-
250. 5 Plaintiff contends that this is so because these materials
were subject to close quality control at Fort Wayne’s factory
and to post-manufacture control of their installation through
the manufacturer’s specifications and installation manuals. We
disagree.
In the present case, the steel panels, braces, and vinyl
liners manufactured by Fort Wayne are interchangeable in the
swimming pool construction industry with component materials
made by other manufacturers. Such materials are purchased by
distributors in bulk to be used in the construction of swimming
5
For purposes of this appeal, the term “equipment”
encompasses the phrase “equipment or machinery or other
articles” contained in § 8.01-250.
6
pools according to the dimensions and shapes desired by
particular customers. Fort Wayne exercises no oversight over
the construction of the pools. Fort Wayne merely warrants that
its steel panels will be free from defects of workmanship and
that its vinyl liners will be free from defective welding. Fort
Wayne sells the specification guides and installation manuals as
general guides for the construction of generic vinyl pools.
Moreover, these manuals did not address the construction of a
pool with the particular dimensions and shape of the one
involved in the present case.
Here, as in Cape Henry Towers, the materials manufactured
by Fort Wayne and incorporated into the finished swimming pool
by Crystal Pools were clearly fungible components of that pool.
Individually, these items served no function other than as
generic materials to be included in the larger whole and are
indistinguishable, in this context, from the wall panels we
addressed in Cape Henry Towers. As such, these materials were
ordinary building materials and not “equipment” within the
meaning of Code § 8.01-250. Consequently, because these
materials were manufactured and installed in an improvement to
real property more than five years before the plaintiff filed
7
suit for Dennis Luebbers’ death, these defendants are entitled
to the protection of this statute. 6
For these reasons, we will affirm the order of the trial
court granting summary judgment for Fort Wayne and Crystal
Pools.
Affirmed.
6
Because we conclude that the materials in question were
ordinary building materials and not equipment within the meaning
of Code § 8.01-250, we need not address plaintiff’s contention
that the trial court further erred in finding that Crystal Pools
was not a “supplier” of the materials. See Eagles Court
Condominium v. Heatilator, Inc., 239 Va. 325, 329, 389 S.E.2d
304, 306 (1990)(holding that even the installer of machinery or
equipment is entitled to the protection of the first sentence of
Code § 8.01-250).
8