In a big win for the Pels Law Firm team, representing the father of an 18-year-old killed in a silo accident, the Virginia Supreme Court on July 22, 2021, reversed the Loudoun County Circuit Court’s dismissal of the case with prejudice. The issue considered by the Virginia Supreme Court was whether a Buell Classifier installed in the silo to process manufactured sand qualified as “equipment” under the statute of repose, Va. Code. § 8.01-250.
The Court analyzed its earlier decisions under the statute and concluded that “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 prudent to provide a single definition that would apply in every circumstance.” Rather than providing a single definition, the Court reaffirmed that lower courts should consider several enumerated factors, based on the circumstances of each case. Applying the factors to the Buell Classifier, the Court concluded that the Classifier (which the Court characterized as “a device used for a specific purpose unrelated to the structural integrity of the building itself”) was “equipment” under Va. Code § 8.01-250 because: (i) the manufacturer exerted control over the installation and maintenance of the Classifiers in the silo; (ii) although the Classifier was not fully assembled prior to installation in the silo, “this was because it was very large and therefore it was necessary to assemble it on site after shipment from the factory”; (iii) the manufacturer conducted a visual inspection of the Classifier welds to ensure they were suitable for its intended purpose before it left the factory; (iv) the Classifier came with both an installation and operation manual; (v) the manufacturer provided recommended inspection and maintenance for the Classifier throughout its use by the purchaser; (vi) the Classifier was not fungible or generic in that was not readily available for purchase; (vii) the manufacturer itself referred to the Classifier as “equipment”; and (viii) the Classifier was “not actually part of the silo; it was added several years after the silo’s construction and therefore it [was] clearly not an essential component of the silo.”
“This was a very complicated civil litigation matter and we obviously believe the Supreme Court got it correct,” says Jon Pels. “I hope the decision brings clarity to this area of law and helps future individuals who are injured or killed in tragic accidents like this. I would like to thank Katerina Newell specifically for her effort, which was impeccable as always on the briefs. We look forward to prosecuting this matter to a jury in the near future.”
The case is Brian C. Potter, Personal Representative of the Estate Of Daniel C. Potter, Deceased v. BFK, Inc. (Va. Supreme Court Case No. 19116).