                  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.




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