                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2007-CA-01383-SCT

BERNIE WINKEL AND RACHEL WINKEL

v.

WINDSOR WINDOWS AND DOORS


DATE OF JUDGMENT:                         07/16/2007
TRIAL JUDGE:                              HON. ALBERT B. SMITH, III
COURT FROM WHICH APPEALED:                COAHOMA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS:                  DANA J. SWAN
ATTORNEY FOR APPELLEE:                    WILLIAM O. LUCKETT, JR.
NATURE OF THE CASE:                       CIVIL - PROPERTY DAMAGE
DISPOSITION:                              REVERSED AND REMANDED - 06/12/2008
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       BEFORE WALLER, P.J., DICKINSON AND RANDOLPH, JJ.

       WALLER, PRESIDING JUSTICE, FOR THE COURT:

¶1.    Bernie and Rachel Winkel filed suit against a window manufacturer, a synthetic

stucco producer, and a contractor who installed the stucco exterior at their residence. They

alleged several causes of action.1 The window manufacturer, Windsor Windows and Doors,

moved the circuit court for summary judgment in its favor. The circuit court granted the

motion on the basis that the statute of repose for bringing claims against Windsor Windows


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       The claims were for breach of express warranty, breach of implied warranty,
negligent failure to warn, design defect, negligent installation and construction, negligent
supervision, general negligence, negligent and intentional misrepresentation, fraudulent
concealment, fraud, breach of warranty of habitability, agency, and “Mississippi Extended
Manufacturer’s Liability Doctrine.”
had expired. See Miss. Code Ann. § 15-1-41 (Rev. 2003). The Winkels now appeal. Miss.

R. App. P. 4.

                                            FACTS

¶2.    The Winkels moved into their new home in March 1995. After several years passed,

they noticed water was infiltrating the home’s exterior, damaging the house. They filed suit

against Windsor Windows, among other defendants, alleging the windows installed in their

home were defective and contributed to the damage to the house. Their original complaint

was filed on December 31, 2002. After the parties began discovery, Windsor Windows

moved the circuit court for summary judgment. The court granted the motion on the basis

that the claims against Windsor Windows were subject to the six-year statute of repose, and

the time for bringing the claims expired prior to December 31, 2002.

                                 STANDARD OF REVIEW

¶3.    This Court conducts a de novo review of matters on summary judgment. Its familiar

standards when reviewing summary judgment orders can be found within the rules of civil

procedure as well as in this Court’s previous opinions. Miss. R. Civ. P. 56; Fruchter v.

Lynch Oil Co., 522 So. 2d 195, 198 (Miss. 1988).

                                        DISCUSSION

¶4.    The Winkels raise only one issue on appeal: Whether their claim is barred by Section

15-1-41 of the Mississippi Code. This statute provides, in pertinent part:

               No action may be brought to recover damages for injury to property,
       real or personal, or for an injury to the person . . . more than six (6) years after
       the written acceptance or actual occupancy or use, whichever occurs first, of
       such improvement by the owner thereof. This limitation shall apply to actions
       against any . . . firms and corporations performing or furnishing the design,

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       planning, supervision of construction or construction of such improvement to
       real property . . . for any private or nongovernmental entity.

Miss. Code Ann. § 15-1-41 (Rev. 2003). 2 The Winkels argued Windsor Windows, a

manufacturer, fell outside the class of entities covered by this statute of repose. See

McIntyre v. Farrel, 680 So. 2d 858, 865 (Miss. 1996). Windsor Windows argued that it is

not merely a manufacturer and is protected by this statute because it “planned the

construction of the windows” in the Winkels’ house. The circuit court granted summary

judgment, distinguishing McIntyre, and finding Windsor Doors “was a manufacturer, not a

mere supplier, and designed the window specifically to be installed in a home following its

guidelines for installation.” The same arguments are made on appeal.

¶5.    We find no genuine issue of material fact was contested before the circuit court,

presenting it with a simple question of law. Windsor Windows designed the windows and

supplied a general service bulletin on the installation of its windows on homes with stucco

exteriors. Although there is a question whether Bernie Winkel knew of the existence of these

instructions, the carpenter who installed these windows into his home did so “according to

the directions provided by Windsor.” Therefore, half of the requirement for summary




       2
        The parties do not contest that the windows were an “improvement to real property.”
According to Mississippi law, an improvement to real property is “[a] valuable addition
made to property (usually real estate) or an amelioration in its condition, amounting to more
than mere repairs or replacement of waste, costing labor or capital, and intended to enhance
its value, beauty or utility or to adapt it for new or further purposes.” Phipps v. Irby Constr.
Co., 636 So. 2d 353, 368 (Miss. 1993) (quoting Black's Law Dictionary 682 (5th ed. 1979)).
See also Ferrell v. River City Roofing, Inc., 912 So. 2d 448, 454 (Miss. 2005).


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judgment has been met. The discussion now turns to whether Windsor Windows is entitled

to judgment as a matter of law. We hold it is not.

¶6.    The United States Court of Appeals for the Fifth Circuit interpreted this statute of

repose to cover a manufacturer of asbestos-containing fireproofing because it furnished the

design for its application to buildings. Trust Co. Bank v. United States Gypsum Co., 950

F.2d 1144, 1151 (5th Cir. 1992). That court relied, in part, on this Court’s opinion upholding

summary judgment in favor of a manufacturer of a heat exchange unit that was installed in

an oil refinery. Id. at n.15 (citing Smith v. Flour Corp., 514 So. 2d 1227 (Miss. 1987)). It

must be noted that the issue before the court in Smith was whether the heat exchanger was

an “improvement to real property,” not whether the Fluor Corporation, the manufacturer of

the heat exchanger, was protected because it was a manufacturer. Smith, 514 So. 2d at 1230.

For this reason, coupled with the fact that the Fluor Corporation also installed the heat

exchanger (or performed the “construction of such improvement”), we find the Trust

Company Bank case is not very persuasive as authority on the issue.

¶7.    This Court, on the other hand, has found, on certified question from the Fifth Circuit,

that the manufacturer of a piece of industrial machinery which became incorporated into a

factory was not covered by the statute of repose simply because it manufactured the

equipment. McIntyre v. Farrel Corp., 680 So. 2d 858, 862-63, 866 (Miss. 1996), remanded

to district court sub nom, McIntyre v. Farrell Corp., 97 F.3d 779 (5th Cir. 1996). While

admitting the statute could be read to cover manufacturers, the Court concluded the

Legislature “did not intend for manufacturers to be within the protected class of parties”

under this statute of repose. Id. at 862. In analyzing the issue, this Court addressed the Fifth

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Circuit’s opinion in Trust Company Bank. Id. It criticized that court’s assertion that

Mississippi’s statute of repose covered a larger group than similar statutes in other states.

Id. This Court took the opposite view of the Fifth Circuit, and did not interpret the statute

of repose to cover a manufacturer “that designs, manufactures, and ships a completed piece”

of equipment. Id. at 858, 862, 866. We quoted with favor an opinion of the Massachusetts

Supreme Judicial Court which states:

       We think that the Legislature, by enacting (the statute of repose) meant to
       protect providers of ‘individual expertise’ in the business of designing,
       planning, constructing, and administering improvements to real estate. We
       reiterate that (the statute of repose) was not intended to apply to mere suppliers
       of standardized products, but only to the kinds of economic actors who
       perform acts of ‘individual expertise’ akin to those commonly thought to be
       performed by architects and contractors–that is to say, to parties who render
       particularized services for the design and construction of particular
       improvements to particular pieces of real property.

Id. at 863 (quoting Dighton v. Federal Pac. Elec. Co., 399 Mass. 687, 696, 506 N.E.2d 509,

cert. denied, 484 U.S. 953, 98 L. Ed. 2d 371, 108 S. Ct. 345 (1987)). Though we did not

specifically adopt this reasoning as the rule in this state, we find it persuasive.

¶8.    We reaffirm the precepts discussed in the McIntyre opinion again today and find the

evidence in this record does not demonstrate Windsor Windows either supplied windows

designed specifically for the Winkels’ home or furnished specific instructions for the

windows’ installation into the Winkels’ home. On the contrary, the evidence in the record

indicates the windows were mass-produced, and the instructions generally indicated how to

install the windows into stucco homes in general. Windsor Windows argues that several

opinions from the United States district courts within this state found manufacturers of

improvements to real property were protected by this statute.            We find these cases

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distinguishable or unpersuasive. See Wolfe v. Dal-Tile Corp., 876 F. Supp. 116, 121 (S.D.

Miss. 1995)3 (the question whether the manufacturer furnished the design of the tile or

planned the construction of the tile so that it was protected by the statute of repose was a

question for the jury); Theunissen v. GSI Group, 109 F. Supp. 2d 505, 512 (N.D. 2000)4 ;

Jones v. Neema, Inc., 2007 U.S. Dist. LEXIS 53880, *7 (S.D. Miss. July 24, 2007)

(unpublished opinion) 5 (the glass supplier also installed the doors in the hotel).

¶9.    Massachusetts continues to interpret its statute of repose in light of Dighton, and its

interpretation is not unique. See Fine v. Huygens, 57 Mass. App. Ct. 397, 402 (Mass. App.

Ct. 2003) (quoting Dighton, 506 N.E.2d at 515). See also Ball v. Harnischfeger Corp., 1994

OK 65, 877 P.2d 45, 50 (1994) (manufacturer of crane improvement to real property

customized to meet the unique needs of the building covered by statute of repose) (collecting

authorities). “It is the specialized expertise and rendition of particularized design which

separates those protected from mere manufacturers and suppliers.” Id. These cases illustrate

the fundamental difference which controls the outcome of this case: a manufacturer of a

mass-produced window which supplied general instructions on its installation into a large

class of homes (e.g. those with stucco exteriors) did not furnish the required particularized

design of an improvement to real property which will result in the manufacturer’s protection

under the statute of repose as a corporation “furnishing the design, planning, supervision of

construction or construction of such improvement to real property.”


       3
           Pickering, J.
       4
           Davidson, J.
       5
           Gex, J.

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                                     CONCLUSION

¶10.   Consistent with this Court’s previous opinion in McIntyre, we hold that the trial court

erred in finding Windsor Windows covered under Section 15-1-41 as an entity which designs

or plans the construction of an improvement to real property. For the reasons discussed

above, we reverse the judgment of the circuit court and remand this matter for further

proceedings.

¶11.   REVERSED AND REMANDED.

    SMITH, C.J., DIAZ, P.J., EASLEY, CARLSON, GRAVES, DICKINSON,
RANDOLPH AND LAMAR, JJ., CONCUR.




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