UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1137
DEBORAH STREETER, Individually and As Surviving Spouse and
Personal Representative of the Estate of Jimmy Wayne
Streeter; M. A. S., minor,
Plaintiffs - Appellants,
v.
SSOE SYSTEMS, INCORPORATED; SSOE, INCORPORATED; CIANBRO
CORPORATION; CIANBRO EQUIPMENT, LLC; CIANBRO FABRICATION AND
COATING CORPORATION; WARREN ENVIRONMENT, INCORPORATED;
ENGINEERED CRANE SYSTEMS OF AMERICA,
Defendants – Appellees,
and
NUCOR BUILDING SYSTEMS SALES CORPORATION; NUCOR CORPORATION,
d/b/a Nucor Building Products Sales Corporation, d/b/a Nucor
Building Systems Sales Corporation, d/b/a Nucor Steel Sales
Corporation, d/b/a Nucor Cold Finish Sales Corporation,
d/b/a Nucor-Yamato Steel Sales Corporation, d/b/a Nucor
Fastener Sales Corporation; NUCOR ENVIRONMENTAL SERVICES,
INCORPORATED; NUCOR PROPERTIES, LLC; NUCOR-YAMATO STEEL
SALES CORPORATION,
Defendants.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William M. Nickerson, Senior District
Judge. (1:09-cv-01022-WMN)
Submitted: September 2, 2011 Decided: September 15, 2011
Before SHEDD, DUNCAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Ronald U. Shaw, Amanda P. Just, SHAW, JOSEPH & JUST, P.A., Hunt
Valley, Maryland, for Appellants. Robert L. Ferguson, Jr.,
Michele Z. Blumenfeld, Bernard A. Meis, FERGUSON, SCHETELICH &
BALLEW, P.A., Baltimore, Maryland; Patrick James Attridge, KING
& ATTRIDGE, Rockville, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In this diversity action, Deborah Streeter and her
minor son appeal the district court’s amended order granting
summary judgment to the Appellees pursuant to Md. Code Ann.,
Cts. & Jud. Proc. § 5-108(b) (LexisNexis 2006) upon finding that
the cause of action had not accrued because it occurred more
than ten years after the entire improvements to the real
property were made available for its intended use. We affirm.
On March 14, 2006, Jimmy Streeter was sitting in his
truck at a W.R. Grace plant in Baltimore, Maryland. During a
period of high winds, a portion of the calciner start-up stack
(the “Stack”) broke loose and fell onto the truck, resulting in
Streeter’s death. Deborah Streeter sought compensation from
those parties she believed responsible for the design and
construction of the Stack.
This court reviews an order granting summary judgment
de novo. Limbach Co. LLC v. Zurich Am. Ins. Co., 396 F.3d 358,
361 (2005). The court will uphold an award of summary judgment
only if the moving party shows by citing to parts of the record,
submitting depositions, documents, electronically stored
information, affidavits, declarations, stipulations, admissions,
interrogatory answers or other materials that there is no
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law. Fed. R. Civ. P.
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56(a), (c). In an action based upon diversity of citizenship,
the law of the forum state applies. Limbach, 396 F.3d at 361.
Under Md. Code Ann., Cts. & Jud. Proc. § 5-108(b):
Except as provided by this section, a cause of action
for damages does not accrue and a person may not seek
contribution or indemnity from any architect,
professional engineer, or contractor 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 10 years after the
date the entire improvement first became available for
its intended use.
When a state enacts a statute of repose, the state
“creates a substantive right in those protected to be free from
liability after a legislatively-determined period of time.”
First United Methodist Church of Hyattsville v. U.S. Gypsum Co.,
882 F.2d 862, 866 (4th Cir. 1989). “It is a substantive grant
of immunity derived from a legislative balance of economic
considerations affecting the general public and the respective
rights of potential plaintiffs and defendants.” Carven v.
Hickman, 763 A.2d 1207, 1211 (Md. App. 2000).
We agree with the district court that the “entire
improvement” at issue was that improvement intended by the first
project, which was the manufacture of silica sol. The second
project, which overlapped the first project, had a different
intended use and did not modify the first project’s intended
use. We also agree with the district court that the first
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project’s entire improvements were available for its intended
use by the end of December 1995. Thus, because Jimmy Streeter’s
death occurred more than ten years after the improvements were
available to manufacture silica sol, the cause of action against
those parties responsible for the design and construction of the
Stack did not accrue.
Accordingly, we affirm the amended judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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