PRESENT: Goodwyn, Mims, Powell, Kelsey, McCullough, and Chafin, JJ., and Russell, S.J.
BRIAN C. POTTER, PERSONAL
REPRESENTATIVE OF THE
ESTATE OF DANIEL C. POTTER, DECEASED
OPINION BY
v. Record No. 191716 JUSTICE CLEO E. POWELL
JULY 22, 2021
BFK, INC.
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Jeanette A. Irby, Judge
Brian C. Potter (“Potter”), the father and personal representative of the estate of Daniel
Potter (“Daniel”) appeals the decision of the Circuit Court of Loudoun County finding that a
Buell Classifier was ordinary building material and, therefore, subject to Virginia’s statute of
repose, Code § 8.01-250.
I. BACKGROUND
For many years, the Luck Stone Corporation (“Luck Stone”) has owned and operated a
stone quarry and surrounding land upon which it operates a surface-mining and processing
operation for the production of stone products. A part of this operation is a system for the
production of manufactured sand from crushed stone. Luck Stone’s Chief Concept Engineer
testified that the system is
comprised of a feed conveyor that carries the raw product
to . . . the sand system, which is a Buell [C]lassifier the material
falls into. It’s connected by virtue of a ductwork to a silo. The silo
has a dust collector on top of it, and the whole system is run by a
fan. A fan creates a draw through the Buell [Classifier] and up into
the silo. The dust collector shakes, puts the fines into the silo.
And then . . . the Buell [Classifier] separates the manufactured
sand from the super fines. The super fines go into the silo; the
sand goes onto another conveyor.
In 2007, Luck Stone replaced earlier equipment with two Buell Classifiers and other
components of the sand manufacturing system with products manufactured by BFK, Inc.
(“BFK”) and installed by a contractor employed by Luck Stone.
On August 3, 2015, Daniel was employed by Luck Stone as a truck driver. Daniel was
instructed to remove material from the sand plant and dump it at an onsite storage area. He
parked his truck under the conveyor belt and entered the silo to operate the air flow system.
Soon after he entered the silo, a hopper containing stone material ruptured, setting off a chain of
events that buried him in falling material and caused his death.
In July 2017, Potter, as the personal representative of Daniel’s estate, brought an action
under the Virginia Wrongful Death Act, Code § 8.01-50, against BFK and other defendants.
BFK filed a plea in bar, asserting that Potter’s action was time-barred under the statute of repose,
Code § 8.01-250, because the Buell Classifier did not qualify as equipment or machinery and
therefore was subject to the five-year limitation imposed by the statute. After holding an
evidentiary hearing, the circuit court determined that the Buell Classifier manufactured by BFK
“was ordinary building material” and, therefore, the action was time-barred under Code § 8.01-
250. Accordingly, the circuit court sustained the plea in bar and dismissed the action against
BFK with prejudice.
Potter appeals.
II. ANALYSIS
In the present case, Potter argues that the circuit court erred in sustaining the plea in bar
because it incorrectly determined that the Buell Classifier was not equipment or machinery.
According to Potter, the circuit court failed to properly weigh the factors established by this
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Court for determining whether the Buell Classifier was equipment or machinery versus ordinary
building materials. We agree.
Our statute of repose, Code § 8.01-250, states:
No action to recover 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 such injury, 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, nor to any
person in actual possession and in control of the improvement as
owner, tenant or otherwise at the time the defective or unsafe
condition of such improvement constitutes the proximate cause of
the injury or damage for which the action is brought; 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.
When interpreting a statute, “this Court seeks to effectuate the intent of the legislature as
expressed by the plain meaning of the words used in the statute.” Llewellyn v. White, 297 Va.
588, 595 (2019). Although our focus is generally on the plain meaning of unambiguous statutory
language, we must also consider that language in the context in which it is used. See Eberhardt
v. Fairfax County Employees' Ret. Sys. Bd. of Trustees, 283 Va. 190, 194 (2012) (a term must be
considered in context in order to ascertain its plain meaning).
In analyzing Code § 8.01-250, we have explained that the statute demonstrates the
General Assembly’s intent
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.
3
Cape Henry Towers, Inc. v. Nat’l Gypsum Co., 229 Va. 596, 602 (1985).
We acknowledge that the phrase “ordinary building materials” is not actually used in
Code § 8.01-250. As evident from our prior opinions, however, this phrase is useful shorthand to
refer to objects that are neither machinery nor equipment under Code § 8.01-250. Stated
differently, the phrase describes objects that have become so attached to a building or land that
they are more akin to the structure itself. Such objects are essentially “improvement[s] to real
property” and, therefore, fall within the statute of repose and are subject to the five-year
limitation that it imposes.
Indeed, it is telling that the determination of whether an object was or was not “ordinary
building materials” has always been juxtaposed with a determination of whether an object is
machinery or equipment. For example, our decision in Cape Henry Towers, 229 Va. at 602, was
based entirely on the fact that “[u]nlike 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.” Similarly, this Court determined that the
objects at issue in Grice v. Hungerford Mech. Corp., 236 Va. 305, 309 (1988) (electrical panel
and its component parts), Luebbers v. Fort Wayne Plastics, 255 Va. 368, 373 (1998) (steel
panels, braces and vinyl liners for a swimming pool), Baker v. Poolservice Co., 272 Va. 677, 691
(2006) (pool drain cover), and Jamerson v. Coleman-Adams Constr. Inc., 280 Va. 490, at 497
(2010) (steel platform and pole), were not equipment or machinery and, therefore, were ordinary
building materials. Conversely, the Court determined that the objects at issue in Cooper Indus.,
Inc. v. Melendez, 260 Va. 578, 595-96 (2000) (a switchgear and circuit breakers), and Royal
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Indem. Co. v. Tyco Fire Products, LP, 281 Va. 157, 168 (2011) (sprinkler heads) were
equipment or machinery and, therefore, were not ordinary building materials.
With regard to Code § 8.01-250, we have previously noted that the General Assembly has
not provided a definition of “equipment or machinery.” Jamerson, 280 Va. at 495. Additionally,
“definitions of equipment or machinery found in other parts of the Code or administratively
adopted regulations . . . cannot adequately address in every instance the distinction . . . between
ordinary building materials and equipment and machinery.” Id. at 495-96. For similar reasons,
the ordinary definition of “equipment,” while informative, does not provide a workable guide
under the statute. The word “equipment” is defined as: “[t]he implements . . . used in an
operation or activity; [a]pparatus; all the fixed assets other than land or buildings of a business
enterprise.” Merriam-Webster’s Collegiate Dictionary 423 (11th ed. 2004). 1 This broad
definition must necessarily be tempered by the context in which it is used, otherwise an object
could qualify as both an “improvement to real property,” meaning the object would fall under
Code § 8.01-250, and “equipment,” meaning it would also be excluded under the same statute. 2
Recognizing the multitude of forms that equipment in its ordinary sense can take, the
determination of whether an object is properly classified as “equipment” in the particular context
of Code § 8.01-250 is of necessity a multi-faceted issue for which the Court has not found it
1
Potter’s assignment of error in this case specifically takes issue with the circuit court’s
failure to find that the Buell Classifier was “equipment” under Code § 8.01-250. Accordingly,
we do not address whether the Buell Classifier is considered “machinery” under the statute.
2
For example, an electrical panel box has been deemed to be an “improvement to real
property” covered by Code § 8.01-250, Grice, 236 Va. at 309, as is a drain cover, Baker, 272 Va.
at 690, and a steel platform and pole, Jamerson, 280 Va. at 498. Yet all three of these examples
would also meet the dictionary definition of “equipment,” in that they are fixed assets that are
used in an operation or activity, but they are not land or a building.
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prudent to provide a single definition that would apply in every circumstance. Rather than
prescribe a single definition, the Court has identified several factors for the lower courts to
consider and apply based on the circumstances of each case. Indeed, as we stated in Jamerson,
As reflected in these cases, 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 on its own circumstances.
280 Va. at 496.
Consequently, where the issue turns on whether the object is “equipment or machinery,”
it is appropriate to first analyze the characteristics of the object and determine whether it may be
classified as such. If, after considering the various factors, the object does not fit within the
classification of “equipment or machinery,” then by process of exclusion the object may fall
within the non-statutory rubric of “ordinary building materials.”
The Court has held that the level of quality control exerted by the manufacturer, the
existence of a voidable manufacturer’s warranty and the existence of use and/or installation
instructions directly from the manufacturer are some of the factors that indicate whether an item
may be exempt from Code § 8.01-250. Cape Henry Towers, 229 Va. at 602. See also Grice,
236 Va. at 309 (considering that the instructions for assembling and installing an electrical panel
box were determined by the architect and that no instructions were received from the
manufacturer in finding that a panel box was not equipment); Cooper Indus., 260 Va. at 595
(considering the inclusion of an instruction manual by the manufacturer in finding that circuit
breakers on a pier were equipment); Baker, 272 Va. at 691 (considering that a manufacturer had
no role in the installation of a pool drain in finding that the drain was not equipment); Jamerson,
280 Va. at 497 (2010) (considering the fact that the installation instructions provided by the
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manufacturer of a fireman’s pole and platform merely consisted of recommendations on what
variety of bolts to use in finding that the pole was not equipment). We have further indicated
that if the action at bar arises from a non-fungible part of the land or building, this weighs in
favor of finding that an object is equipment. Luebbers, 255 Va. at 373 (noting that steel panels,
braces, and vinyl liners for a pool “served no purpose other than as generic materials to be
included in the larger whole” in holding that those objects were not equipment); see also Baker,
272 Va. at 690 (finding that a pool drain cover is “indistinguishable from the fungible component
parts of the swimming pool” in Luebbers). Finally, we have held that fully assembled,
independent mechanical devices that are not essential structural components of a structure or
building are generally equipment under the statute. Royal Indemnity, 281 Va. at 168.
Applying these factors to the Buell Classifier demonstrates that it is equipment under
Code § 8.01-250. Notably, BFK exerted control over the installation and maintenance of the
Buell Classifier in a manner characteristic of equipment. We acknowledge that the Buell
Classifier was not fully assembled when it left BFK, but this was because it was very large and
therefore it was necessary to assemble it on site after shipment from the factory. Further, we
note that BFK conducted a visual inspection of the Buell Classifier’s welds to ensure they were
suitable for its intended purpose before it left the factory. Like the circuit breakers found to be
equipment in Cooper Industries, the Buell Classifier comes with both an installation and
operation manual. While there was uncertainty as to whether BFK was involved in the
installation of this specific Buell Classifier at Luck Stone, there was evidence that, in
approximately half of the installations of these types of classifiers, a representative from BFK
comes on site to adjust the device and make sure it is working properly after installation. There
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was also evidence presented demonstrating that BFK provides recommended inspection and
maintenance for a Buell Classifier throughout its use by the purchaser.
Similar to the sprinkler heads at issue in Royal Indemnity, the Buell Classifier is not
actually part of the silo; it was added several years after the silo’s construction and therefore it is
clearly not an essential component of the silo. 281 Va. at 168. Another similarity that the Buell
Classifier shares with such items as the sprinkler heads considered in Royal Indemnity is the fact
that the classifier is somewhat mechanical in nature in that it has louvers that “control the
direction and amount of air that comes into the device.” If the louvers are not correctly installed
and positioned, the Buell Classifier will not function properly. Further, the Buell Classifier
“serves an adjunct function in the building” in that it was only necessary as a means of
separating sand particles. Id. at 167.
Additionally, the Buell Classifier is neither fungible nor generic. See Luebbers, 255 Va.
at 373. BFK’s former CEO and President explained that the Buell Classifier is “not readily
available” for purchase. While the Buell Classifier at issue here was not specially designed for
Luck Stone, the former CEO said there were only two or three other manufacturers of similar
classifiers. 3
3
While not dispositive, the fact that BFK routinely referred to the Buell Classifier as
“equipment” further supports the notion that it was, in fact, a piece of equipment. It is also
telling that, during the hearing on the plea in bar, the chief concept engineer at Luck Stone
described the Buell Classifier at issue as “a piece of equipment that separates materials” and
agreed with Potter that it is a machine that aids Luck Stone in performing a business function.
The former President and CEO of BFK also admitted that he refers to the Buell Classifier as
“equipment” and that BFK holds it out as equipment that companies like Luck Stone can use in
their business functions. Indeed, on the first page of the proposal that BFK sent to Luck Stone
regarding the Buell Classifier, it was described under a section labeled “Equipment
Recommended.” The proposal also stated, “Equipment will be delivered in approximately 12
weeks after receipt of approval drawings.” Finally, the invoice for the freight of the classifier
referred to the classifier as equipment.
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III. CONCLUSION
When all of the relevant factors are considered, it is apparent that the Buell Classifier at
issue is equipment within the meaning of Code § 8.01-250. The Buell Classifier is a device used
for a specific purpose unrelated to the structural integrity of the building itself. It has several
qualities that we have recognized as being characteristic of equipment: the manufacturer exerts
some degree of control over its installation and maintenance, it is not required for the operation
of the building, and it is neither fungible nor generic. Thus, the circuit court erred in sustaining
BFK’s plea in bar based on its conclusion that the Buell Classifier qualified as ordinary building
materials. Accordingly, we will reverse the judgment of the circuit court and remand the case for
further proceedings consistent with this opinion.
Reversed and remanded.
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