Ordinary Building Materials versus Equipment or Machinery: The Difference is Time

11/23/2010

Following up an earlier post, the Virginia Supreme Court In Jamerson v. Coleman-Adams Construction, Inc., 280 Va. 490, 699 S.E.2d (2010) recently discussed the distinction between ordinary building materials, which are subject to Virgina’s 5-year statute of repose, and equipment or machinery, which are exempt.

At issue was a specially fabricated steel platform that failed after construction and injured a firefighter while he was standing on it before sliding down the fire pole. The fireman filed suit more than 5 years after the contract was completed, because of which the trial court dismissed the case as beyond the 5-year repose period (Va. Code Sec. 8.01-250).

Below are the firefighter’s arguments, and the Virginia Supreme Court’s response:

– The pole and platform were equipment because there were warranted. No because the court distinguished independent manufacturer warranties and a basic policy to stand behind one’s product.

– The pole and platform were equipment because their erection was subject to close quality control. No because associated inspections were just reviews of the work and not quality control processes.

– The pole and platform were equipment because fabricator provided plans and installation instructions with them. No because the drawings were shop drawings prepared based on adaptation of the underlying contract requirements and the installation instructions were suggested guidelines.

– The pole and platform were not equipment because they were specially fabricated. No because uniqueness does not preclude characterization as ordinary building materials.

Confused? Obviously the distinction is very grey. One justice’s ordinary building material can very easily be another justice’s equipment or machinery. But it is important to keep abreast of such questions as it can have significant long term liability implications.

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