UNITED STATES COURT OF APPEALS For the Fifth Circuit
No. 95-60287
GEORGE MCINTYRE,
Plaintiff-Appellant,
VERSUS
FARRELL CORPORATION,
Defendant-Appellee.
Appeal from the United States District Court for the Southern District of Mississippi
October 7, 1996 Before POLITZ, Chief Judge, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:
The Mississippi Supreme Court answered our certified question
concerning the interpretation of Mississippi’s statute of repose.
MISS. CODE ANN. § 15-1-41 (1972). Because the Mississippi Supreme
Court’s answer tells us that the statute of repose does not apply
in this products liability action, we reverse the district court’s
grant of summary judgment in favor of the manufacturer and remand
this case for trial. BACKGROUND
George McIntyre appeals from summary judgment granted in favor
of the defendant, Farrel Corporation.1 This products liability
action is governed solely by Mississippi law. McIntyre challenges
the district court's summary judgment determination that his claims
are barred by Mississippi's statute of repose because the
industrial machine responsible for injury was a permanent
"improvement to real property." MISS. CODE ANN. § 15-1-41 (1972).
Because the disposition of this case involved unsettled issues of
Mississippi law, we certified questions regarding the applicability
of § 15-1-41 to the Mississippi Supreme Court.
The parties submitted the following agreed statement of facts
relevant to this dispute.
1. The plaintiff-appellant, George McIntyre, was injured on
January 27, 1993, when he caught his left hand between two in-
running rolls of a four-roll L-calender, in the course of his
employment at the Fidelity Tire Manufacturing Company plant in
Natchez, Mississippi.
2. A "calender" is defined by the 1949 edition of the
American Standard Safety Code for Mills and Calenders in the Rubber
Industry as "a machine equipped with two or more heavy internally
heated or cooled rolls revolving in opposite directions and used
for continuously sheeting or plying up rubber compounds and for
frictioning or coating fabric with rubber compounds." The original
1 The face of the record designates the defendant as the "Farrell Corporation." The correct spelling is the "Farrel Corporation."
2 version of that Code had been adopted by the American Engineering
Standards Committee in 1927. See Safety Code for Rubber Mills and
Calenders, ASA B28a-1927. Calenders come in many sizes and
configurations. Although such machines are used for various
purposes, they are widely used in the tire manufacturing industry
to make the various plies that go into the construction of a tire.
3. Farrel's predecessors were pioneers in the development of
calenders, manufacturing them for use in both the rubber and
plastics manufacturing industries. Farrel engineer John
Hinchcliffe testified that Farrel calenders were not mass-produced,
but rather were custom-designed and manufactured for each
individual purchaser. According to Hinchcliffe, there were no
standard models of Farrel calenders; rather, separate engineering
drawings were made for each machine.
4. The subject calender was manufactured by Farrel-
Birmingham, Inc.,2 and sold to the original owner and operator of
the Natchez plant, Armstrong Tire and Rubber Company, in 1938. The
calender was installed and put into use when the Natchez plant
opened in 1939.
5. The calender weighs in excess of 100 tons. It was fully
assembled at Farrel-Birmingham's Ansonia, Connecticut, facility
2 Farrel-Birmingham, Inc. was subsequently acquired by Emhart Industries, Inc. ("Emhart"), becoming the Farrel Division of that corporation. Emhart is defending this action against Farrel Corporation pursuant to the terms of the 1986 purchase and sale agreement under which Farrel Corporation acquired the assets of the Farrel Division. Emhart retained all liabilities arising out of the sale and manufacture of Farrel products prior to the 1986 closing date.
3 before being disassembled, shipped in pieces by freight car and
installed at the Natchez plant.
6. The calender has its own separate foundation, an
engineering drawing for which was provided by Farrel-Birmingham at
the time of sale. Similar separate foundations are required for
mills and other types of dynamic, heavily-loaded equipment, to
isolate each such machine's vibrations from those of other plant
operations. The foundation prescribed by the drawing for the
subject calender is seven feet, five inches in depth and includes
pits underneath the machine to allow for maintenance and cleaning.
The calender is secured to its foundation by bolts ranging from one
and one-half to two and one-quarter inches in diameter and from
five feet, seven inches to six and one-half feet in length. The
bolts were run through metal plates and nuts which were buried in
the foundation, and the machine was then leveled by grouting. The
calender has remained so affixed to its foundation in the same
location at the Natchez plant since its original installation in
1939.
7. The calender is located in the mill room of the plant,
where rubber components are mixed, milled, calendered and extruded
before being delivered to the tire assembly area. It is one of a
long series of machines used in the tire manufacturing process at
the plant. The machine was originally used as a fabric calender,
producing a rubberized sheet of cord used in bias ply tire
construction. The plant's manufacturing process was restructured
in 1963, with the subject machine being converted to usage as a gum
4 calender, producing two sheets of rubber which are laminated
together downstream from the machine. Rubber is milled into strips
and then transported by a conveyor which drops the rubber onto the
calender. After being laminated, the calendered strips of rubber
are moved by conveyor downstream to be cooled and wound up for
delivery to the assembly area. Since 1963, the products of the
calender have been inner liners used in tubeless tires and gum
strips which reinforce component junctions in both bias ply and
radial tires.
8. Condere Corporation, doing business as Fidelity Tire
Manufacturing Company, acquired the Natchez plant from Armstrong in
1987. When Condere purchased the plant, it took a warranty deed to
the real property, and a separate bill of sale for the "equipment"
and "fixed assets" located at the facility which, according to the
affidavit of Scott Kern, vice-president and secretary of Condere,
would have included the subject calender. Thereafter, in order to
facilitate an industrial revenue bond issue, Condere conveyed the
property to the City of Natchez, which then leased it back to
Condere. According to Kern, the conveyances to the City of Natchez
were made as were those from Armstrong to Condere, with a separate
warranty deed and bill of sale. A single lease agreement between
the City of Natchez and Condere covers the site, the building and
the leased equipment. The subject calender appears on the list of
leased equipment, and is said to include "associated feed conveyors
. . .
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UNITED STATES COURT OF APPEALS For the Fifth Circuit
No. 95-60287
GEORGE MCINTYRE,
Plaintiff-Appellant,
VERSUS
FARRELL CORPORATION,
Defendant-Appellee.
Appeal from the United States District Court for the Southern District of Mississippi
October 7, 1996 Before POLITZ, Chief Judge, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:
The Mississippi Supreme Court answered our certified question
concerning the interpretation of Mississippi’s statute of repose.
MISS. CODE ANN. § 15-1-41 (1972). Because the Mississippi Supreme
Court’s answer tells us that the statute of repose does not apply
in this products liability action, we reverse the district court’s
grant of summary judgment in favor of the manufacturer and remand
this case for trial. BACKGROUND
George McIntyre appeals from summary judgment granted in favor
of the defendant, Farrel Corporation.1 This products liability
action is governed solely by Mississippi law. McIntyre challenges
the district court's summary judgment determination that his claims
are barred by Mississippi's statute of repose because the
industrial machine responsible for injury was a permanent
"improvement to real property." MISS. CODE ANN. § 15-1-41 (1972).
Because the disposition of this case involved unsettled issues of
Mississippi law, we certified questions regarding the applicability
of § 15-1-41 to the Mississippi Supreme Court.
The parties submitted the following agreed statement of facts
relevant to this dispute.
1. The plaintiff-appellant, George McIntyre, was injured on
January 27, 1993, when he caught his left hand between two in-
running rolls of a four-roll L-calender, in the course of his
employment at the Fidelity Tire Manufacturing Company plant in
Natchez, Mississippi.
2. A "calender" is defined by the 1949 edition of the
American Standard Safety Code for Mills and Calenders in the Rubber
Industry as "a machine equipped with two or more heavy internally
heated or cooled rolls revolving in opposite directions and used
for continuously sheeting or plying up rubber compounds and for
frictioning or coating fabric with rubber compounds." The original
1 The face of the record designates the defendant as the "Farrell Corporation." The correct spelling is the "Farrel Corporation."
2 version of that Code had been adopted by the American Engineering
Standards Committee in 1927. See Safety Code for Rubber Mills and
Calenders, ASA B28a-1927. Calenders come in many sizes and
configurations. Although such machines are used for various
purposes, they are widely used in the tire manufacturing industry
to make the various plies that go into the construction of a tire.
3. Farrel's predecessors were pioneers in the development of
calenders, manufacturing them for use in both the rubber and
plastics manufacturing industries. Farrel engineer John
Hinchcliffe testified that Farrel calenders were not mass-produced,
but rather were custom-designed and manufactured for each
individual purchaser. According to Hinchcliffe, there were no
standard models of Farrel calenders; rather, separate engineering
drawings were made for each machine.
4. The subject calender was manufactured by Farrel-
Birmingham, Inc.,2 and sold to the original owner and operator of
the Natchez plant, Armstrong Tire and Rubber Company, in 1938. The
calender was installed and put into use when the Natchez plant
opened in 1939.
5. The calender weighs in excess of 100 tons. It was fully
assembled at Farrel-Birmingham's Ansonia, Connecticut, facility
2 Farrel-Birmingham, Inc. was subsequently acquired by Emhart Industries, Inc. ("Emhart"), becoming the Farrel Division of that corporation. Emhart is defending this action against Farrel Corporation pursuant to the terms of the 1986 purchase and sale agreement under which Farrel Corporation acquired the assets of the Farrel Division. Emhart retained all liabilities arising out of the sale and manufacture of Farrel products prior to the 1986 closing date.
3 before being disassembled, shipped in pieces by freight car and
installed at the Natchez plant.
6. The calender has its own separate foundation, an
engineering drawing for which was provided by Farrel-Birmingham at
the time of sale. Similar separate foundations are required for
mills and other types of dynamic, heavily-loaded equipment, to
isolate each such machine's vibrations from those of other plant
operations. The foundation prescribed by the drawing for the
subject calender is seven feet, five inches in depth and includes
pits underneath the machine to allow for maintenance and cleaning.
The calender is secured to its foundation by bolts ranging from one
and one-half to two and one-quarter inches in diameter and from
five feet, seven inches to six and one-half feet in length. The
bolts were run through metal plates and nuts which were buried in
the foundation, and the machine was then leveled by grouting. The
calender has remained so affixed to its foundation in the same
location at the Natchez plant since its original installation in
1939.
7. The calender is located in the mill room of the plant,
where rubber components are mixed, milled, calendered and extruded
before being delivered to the tire assembly area. It is one of a
long series of machines used in the tire manufacturing process at
the plant. The machine was originally used as a fabric calender,
producing a rubberized sheet of cord used in bias ply tire
construction. The plant's manufacturing process was restructured
in 1963, with the subject machine being converted to usage as a gum
4 calender, producing two sheets of rubber which are laminated
together downstream from the machine. Rubber is milled into strips
and then transported by a conveyor which drops the rubber onto the
calender. After being laminated, the calendered strips of rubber
are moved by conveyor downstream to be cooled and wound up for
delivery to the assembly area. Since 1963, the products of the
calender have been inner liners used in tubeless tires and gum
strips which reinforce component junctions in both bias ply and
radial tires.
8. Condere Corporation, doing business as Fidelity Tire
Manufacturing Company, acquired the Natchez plant from Armstrong in
1987. When Condere purchased the plant, it took a warranty deed to
the real property, and a separate bill of sale for the "equipment"
and "fixed assets" located at the facility which, according to the
affidavit of Scott Kern, vice-president and secretary of Condere,
would have included the subject calender. Thereafter, in order to
facilitate an industrial revenue bond issue, Condere conveyed the
property to the City of Natchez, which then leased it back to
Condere. According to Kern, the conveyances to the City of Natchez
were made as were those from Armstrong to Condere, with a separate
warranty deed and bill of sale. A single lease agreement between
the City of Natchez and Condere covers the site, the building and
the leased equipment. The subject calender appears on the list of
leased equipment, and is said to include "associated feed conveyors
. . . associated reduction gears and motors, overhead hoist system
with monorail and hoist (and) fabric feed section."
5 9. While the subject L-calender has never been moved since
its original installation in 1939, similar machinery has been moved
from plant to plant by Condere and other tire manufacturers. In
1974, Armstrong moved a three-roll calender from the Natchez plant
to a new facility in Tennessee. Armstrong later purchased and
installed a four-roll Z-calender in the Natchez plant. Jerry
Beach, Fidelity's plant engineer, testified by deposition that the
L-calender could be removed without material damage to the
structure of the plant. Kern's affidavit asserts that there is a
market for used calenders in the industry.
DISCUSSION
We previously determined that the resolution of this appeal
required determination of important questions of Mississippi law,
for which there were no clear controlling precedents in the
decisions of the Mississippi Supreme Court. McIntyre v. Farrell
Corp., No. 95-60287 (5th Cir. Feb. 21, 1996). We therefore
certified the following questions of law to the Supreme Court of
Mississippi for instructions:
1. Is a large piece of industrial machinery, such as the Farrel 4-roll calender, used in a factory setting and semi-permanently installed an "improvement to real property" for purposes of § 15-1-41?
2. Is an original equipment manufacturer, such as Farrel-Birmingham, Inc. and its corporate successors, that designs, manufactures, and ships a completed piece of industrial machinery an entity that performs or furnishes the "design, planning, supervision of construction, or construction" of an
OPIN\95-60287.OPN 6 improvement to real property for purpose of § 15-1-41?
The Mississippi Supreme Court answered the first question
stating that “a ‘large piece of industrial machinery’ may
constitute an ‘improvement to real property’ under Mississippi case
law, subject to a major caveat expressed in the answer to the
second certified question.” McIntyre v. Farrell Corp., 1996 WL
529544, *3 (Miss. Sept. 19, 1996)(emphasis in original). The
Mississippi Supreme Court then made clear that the controlling
issue in this case was the second certified question and held that:
[A]n original equipment manufacturer that designs, manufactures, and ships a completed piece of industrial machinery is not an entity that performs or furnishes the “design, planning, supervision of construction, or construction” of an improvement to real property for purposes of § 15-1-41.
McIntyre, 1996 WL 529544, *10.
Applying the answer to the second certified question to the
agreed facts of this case, we hold that Farrel is not entitled to
the benefits of § 15-1-41.
CONCLUSION
Because Farrel is not an entity entitled to protection under
§ 15-1-41, the district court erred in granting summary judgment.
Therefore, the judgment of the district court is REVERSED and the
case REMANDED for trial.
OPIN\95-60287.OPN 7