ANALYSIS OF JULY 22, 2021 SUPREME COURT OPINION
(Posted July 22, 2021) The Supreme Court hands down a single published opinion this morning. Potter v. BFK, Inc. is a wrongful-death action; the primary issue is the statute of repose.
Potter is the personal representative of his late son’s estate. The son, a truck driver, was killed on the site of a stone quarry where a stone company manufactured sand from crushed stone. The company’s system employs a silo to store the sand and a product called a Buell Classifier to separate fine sand from super-fine, and convey the resulting material into the silo. The son was killed when the classifier malfunctioned, causing him to be buried in the material.
The father sued several defendants, including the manufacturer of the classifier. The manufacturer raised the bar of the statute, noting that the classifier had been installed onsite eight years before the death and ten years before the father filed suit. The circuit court conducted a hearing and ruled in favor of the manufacturer.
Today the Supreme Court reverses and remands the case for trial. The dispositive issue is whether the classifier is equipment or ordinary building materials. The statute expressly excludes equipment from its coverage; if the classifier is equipment, the suit is timely.
Justice Powell, writing for a unanimous court, surveys the court’s previous holdings on the seemingly fuzzy boundary between equipment and ordinary building materials, and finds that the classifier is indeed equipment. In her summary, she notes that the classifier “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.” She also points out in a footnote that the manufacturer itself regularly refers to the classifier as equipment – a factor that, while not dispositive, certainly looks like a smoking gun in a dispute like this.
If you’ve litigated statute-of-repose cases before, you may have raised a mental objection that the statute excludes “equipment or machinery,” and the opinion doesn’t address the second of these key words. That’s because the father’s assignment of error didn’t assign error to the circuit court’s refusal to find that the classifier was machinery. In the end, it doesn’t matter.
Finally, if you were hoping for a new bright-line test to establish the boundary between those products that fall within and without the statute, get ready for disappointment. The justices decline to do so, meaning that you’re left with the existing patchwork quilt of caselaw to sort out on which side of the boundary your case belongs.
