LUEBBERS v. FORT WAYNE
February 27, 1998
Record No. 971039
HOPE T. LUEBBERS, ADMINISTRATRIX
OF THE ESTATE OF
DENNIS GERARD LUEBBERS, DECEASED
FORT WAYNE PLASTICS, INC.,
D/B/A FORT WAYNE POOLS, INC.,
OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR.
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
Oliver A. Pollard, Jr., Judge
PRESENT: All the Justices
The issue we consider in this appeal is whether certain items
used in the construction of a swimming pool are ordinary building
materials rather than "equipment" within the meaning of
Code ? 8.01-250, a statute of repose.
The essential facts are not in dispute. Fort Wayne Plastics,
Inc., doing business as Fort Wayne Pools, Inc. (Fort Wayne), was
a manufacturer of various structural component materials for
in-ground swimming pools. These items included steel panels,
braces, and vinyl liners used in conjunction with aluminum
coping, for which Fort Wayne was a distributor, to form the walls
and bottoms of the pools.
Prestige Industries, Inc. (Prestige) was a distributor of
swimming pool kits and related materials. Prestige purchased in
bulk steel panels, braces, and vinyl liners from Fort Wayne and
held them in its warehouse until it resold them as parts of pool
kits to local swimming pool contractors or individuals. Prestige
also ordered in bulk specification guides and installation
manuals produced by Fort Wayne that described the proper use of
its materials in the construction process. In addition, Prestige
purchased other items to be used in the construction of swimming
pools, such as fitters, pumps, diving boards, and pool slides,
from other sources.
In mid-1985, Prestige received an order for the component
materials necessary for the construction of a 16 ? foot x 35 ?
foot "Grecian style" in-ground swimming pool from
Crystal Pools of Petersburg, a swimming pool retail and
construction company. Prestige supplied materials, including the
steel panels, braces, and a vinyl liner manufactured by Fort
Wayne, that were ultimately incorporated into the swimming pool
in question at a private residence. Prestige also provided
Crystal Pools with a custom specification sheet that it had
developed in order to accommodate design modifications or
requested changes by the homeowner. Although it contained
specifications similar to those found in Fort Wayne’s
publications, this specification sheet was designed expressly for
the construction of this pool. In addition to the materials
manufactured by Fort Wayne, Crystal Pools purchased through
Prestige the vermiculite material for the pool bottom, pumps,
filters, hydrotherapy equipment, steps, and main drains necessary
to construct the finished swimming pool in conformity with the
specifications and requirements of the homeowner.
Thereafter, sometime in early 1986, Crystal Pools completed
the construction of the swimming pool. On June 12, 1994, Dennis
Gerard Luebbers was a guest at the home of Kathryn E. Hedrick
where Crystal Pools had constructed this pool. On that day,
Dennis Luebbers died as a result of an accident that occurred
while he was swimming in her pool.
On November 6, 1995, Hope T. Luebbers, administratrix of
Dennis Luebbers’ estate, filed suit against Fort Wayne, Prestige,
Crystal Pools, and Hedrick. Relevant to this appeal, the suit
charged that the liability of Fort Wayne and Crystal Pools arose
from the negligent design, manufacture, and installation of the
component parts incorporated into the finished swimming pool.
Fort Wayne and Crystal Pools filed affirmative pleas in bar
asserting that the five-year limitation provided by Code ?
8.01-250 barred the plaintiff’s cause of action. The trial court
sustained the pleas and granted summary judgment for Fort Wayne
and Crystal Pools, finding that the materials manufactured by
Fort Wayne and used in the construction of the pool by Crystal
Pools were not "equipment" within the meaning of Code
? 8.01-250. We awarded plaintiff this appeal.
In pertinent part, Code ? 8.01-250 provides:
No action to recover for . . . wrongful death, arising out
of the defective and unsafe condition of an improvement to
real property . . . 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 of furnishing of such service 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 . . .;
rather each such action shall be brought within the time next
after such injury occurs as provided in ?? 8.01-243 and
There is no dispute that the swimming pool in question
constitutes "an improvement to real property"
contemplated by this statute. Additionally, there is no dispute
that plaintiff’s suit was filed more than five years after the
construction of this pool was completed. Accordingly, the focus
of our analysis is on the exclusion provided by the second
paragraph of this statute.
We have previously addressed the application of Code ?
8.01-250 in Cape Henry Towers, Inc. v. National Gypsum Co.,
229 Va. 596, 331 S.E.2d 476 (1985). There, we held that this
statute applies to "those who furnish ordinary building
materials, which are incorporated into construction work outside
the control of their manufacturers or suppliers." Id.
at 602, 331 S.E.2d at 480. With regard to the application of the
exclusion provided by the second paragraph of the statute, we
reasoned that equipment is distinguished from ordinary building
materials on the ground that "[u]nlike ordinary building
materials, . . . equipment [is] 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
In Cape Henry Towers, we held that exterior wall panels
used in the construction of condominium units were ordinary
building materials and not equipment within the meaning of Code
? 8.01-250. Id. Following that case, we held in Grice
v. Hungerford Mechanical Corp., 236 Va. 305, 374 S.E.2d 17
(1988), that an electrical panel box and its component parts
received from the manufacturer without instructions for their use
and installation were ordinary building materials and not
equipment within the meaning of this statute. Id. at
308-09, 374 S.E.2d at 18-19.
In the present case, plaintiff contends that the prefabricated
structural component materials manufactured by Fort Wayne and
installed by Crystal Pools to construct the finished swimming
pool were not ordinary building materials, but, rather, were
"equipment" within the meaning of Code ? 8.01-250.
Plaintiff contends that this is so because these materials were
subject to close quality control at Fort Wayne’s factory and to
post-manufacture control of their installation through the
manufacturer’s specifications and installation manuals. We
In the present case, the steel panels, braces, and vinyl
liners manufactured by Fort Wayne are interchangeable in the
swimming pool construction industry with component materials made
by other manufacturers. Such materials are purchased by
distributors in bulk to be used in the construction of swimming
pools according to the dimensions and shapes desired by
particular customers. Fort Wayne exercises no oversight over the
construction of the pools. Fort Wayne merely warrants that its
steel panels will be free from defects of workmanship and that
its vinyl liners will be free from defective welding. Fort Wayne
sells the specification guides and installation manuals as
general guides for the construction of generic vinyl pools.
Moreover, these manuals did not address the construction of a
pool with the particular dimensions and shape of the one involved
in the present case.
Here, as in Cape Henry Towers, the materials
manufactured by Fort Wayne and incorporated into the finished
swimming pool by Crystal Pools were clearly fungible components
of that pool. Individually, these items served no function other
than as generic materials to be included in the larger whole and
are indistinguishable, in this context, from the wall panels we
addressed in Cape Henry Towers. As such, these materials
were ordinary building materials and not "equipment"
within the meaning of Code ? 8.01-250. Consequently, because
these materials were manufactured and installed in an improvement
to real property more than five years before the plaintiff filed
suit for Dennis Luebbers’ death, these defendants are entitled to
the protection of this statute.
For these reasons, we will affirm the order of the trial court
granting summary judgment for Fort Wayne and Crystal Pools.
In general terms, individual steel panels are bolted together to
produce the form for the walls in the desired dimensions and
perimeter shape of a particular pool. Vinyl liners of the same
dimensions are shaped to form an inner lining for this form. The
coping acts as a receptor on the top of the steel pool walls into
which the liner is snapped to create a watertight structure.
 Crystal Pools of Petersburg is
the trade name of the unincorporated business of Bea L. and
Richard W. Fitzke. The Fitzkes also operate under the name of
Fitzke & Sons. These defendants will be referred to
collectively in this opinion as "Crystal Pools."
 Hedrick was not the homeowner
when the pool in question was constructed. However, she was the
homeowner at the time of the death of Dennis Luebbers, and she is
a party defendant in the underlying suit in this case. She is not
a party to this appeal.
 Prestige is not a party to this
 For purposes of this appeal,
the term "equipment" encompasses the phrase
"equipment or machinery or other articles" contained in
Because we conclude that the materials in question were ordinary
building materials and not equipment within the meaning of Code
? 8.01-250, we need not address plaintiff’s contention that the
trial court further erred in finding that Crystal Pools was not a
"supplier" of the materials. See Eagles Court
Condominium v. Heatilator, Inc., 239 Va. 325, 329, 389 S.E.2d
304, 306 (1990)(holding that even the installer of machinery or
equipment is entitled to the protection of the first sentence of
Code ? 8.01-250).