                         IN THE SUPREME COURT OF MISSISSIPPI
                                  NO. 96-FC-00481-SCT
GEORGE MCINTYRE AND NATIONAL UNION FIRE INSURANCE COMPANY OF
PITTSBURG, PA
v.
FARREL CORPORATION

DATE OF JUDGMENT:                     02/21/96
TRIAL JUDGE:                          HON. CHIEF JUDGE POLITZ, JUDGES DEMOSS AND
                                      SENNIS
COURT FROM WHICH                      5TH CIRCUIT, U.S. COURT OF APPEALS
APPEALED:
ATTORNEY FOR APPELLANTS:              NA
ATTORNEY FOR APPELLEE:                NA
NATURE OF THE CASE:                   CIVIL - OTHER
DISPOSITION:                          QUESTIONS ANSWERED - 9/19/96
MOTION FOR REHEARING
FILED:
MANDATE ISSUED:                       10/10/96




     BEFORE PRATHER, P.J., ROBERTS AND MILLS, JJ.


     PRATHER, PRESIDING JUSTICE, FOR THE COURT:


                                       I. INTRODUCTION

¶1. The present case comes before this Court as a certified question from the Fifth Circuit Court of
Appeals. The primary question presented to this Court for review is whether or not this State's
statute of repose contained in Miss. Code Ann. §15-1-41 provides repose protection to a
manufacturer of a piece of industrial machinery which becomes incorporated into a factory. This
Court concludes that the Legislature intended for §15-1-41 to apply to architects, contractors and
certain other professionals who are engaged in the real estate construction business and not to
manufacturers of machinery or other products which, for whatever reason, become attached to real
property. Accordingly, this Court concludes that §15-1-41 does not provide repose protection for
such a manufacturer.

                             II. AGREED STATEMENT OF FACTS
¶2. 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 the 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 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
     industry 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 Farrell 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. 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 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 [sic] which was
     provided by Farrel-Birmingham's 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 as 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 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 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."

     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.

                                      III. LEGAL ANALYSIS

¶3. The present case comes before this Court as a certified question from the United States Court of
Appeals for the Fifth Circuit. Mississippi Rules of Appellate Procedure 20(a) "Certified Questions
From Federal Courts," provides that:

     (a) When Certified. When it shall appear to the Supreme Court of the United States or to any
     United States Court of Appeals, that there may be involved in any proceeding before it
     questions or propositions of law of this state which are determinative of all or part of that cause
     and there are no clear controlling precedents in the decisions of this Court, the federal court
     may certify such questions or propositions of law of this state to this Court for rendition of a
     written opinion concerning such questions or propositions of Mississippi law. This Court may,
     in its discretion, decline to answer the questions certified to it.

¶4. This Court still nominally adheres to the language of Rule 20(a) which requires that this Court
deal only with questions of law and not issue a holding based on the facts of the case. See:
Boardman v. USAA, 470 So. 2d 1024 (Miss. 1985). In more recent cases, however, this Court has
at times shown a willingness to address the particular facts of the case, and even, for all practical
purposes, to issue a holding based on the facts of the case. See: Puckett v. Refenacht, Bromagen &
Hertz, Inc., 587 So.2d 273 (Miss. 1991). Rule 20(a) is thus subject to the discretion of this Court,
and, although this Court generally strives to limit our inquiry to issues of law, we have clearly done
otherwise in the past. In the present certified question, however, this Court elects to limit the analysis
to considerations of law.

¶5. The first question certified to this Court queries as follows:

     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?

¶6. The answer to this question is 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. The answer to this question can be gleaned from this Court's
holding in Smith v. Fluor Corp., 514 So.2d 1227 (Miss. 1987), wherein this Court noted that § 15-
1-41 does not define the term "improvement to real property" and held that "a definition of the phrase
must follow the plain and ordinary meaning of the terms within the statute." Smith, 514 So.2d at
1230. This Court in Smith thus declined to set forth a rigid factor or test to determine whether or not
a given piece of property constitutes an "improvement to real property," but this Court did
approvingly cite a number of cases from other states which interpreted statutes similar to § 15-1-41.
Id. at 1230.

¶7. These cases cited in Smith interpreted such disparate pieces of property as coal-handling
conveyors, surge tanks in an oil refinery, and a furnace installed in a store as constituting an
improvement to real property within the meaning of the statutes of repose of various states. Id. This
Court reaffirmed the Smith holding in Phipps v. Irby Construction Co., 636 So.2d 353 (Miss. 1993)
. Thus, a piece of industrial machinery may be considered to be an "improvement to real property,"
and this Court specifically held in Smith that a heat exchanger which was interconnected with other
parts of machinery and equipment at a refinery did constitute an improvement to real property.

¶8. However, as discussed in the answer to the second certified question, the intent of the Legislature
in passing §15-1-41 is most logically understood as having been to provide repose protection to
parties such as architects, contractors, and engineers who are engaged in the construction business.
Thus, this Court's answer to the second certified question will in most cases render irrelevant the fact
that a given piece of machinery constitutes an improvement to real property for the purposes of § 15-
1-41.

¶9. In arguing that the first question should be answered in the negative, McIntyre distinguishes
Smith, Phipps and the persuasive authority cited therein on the basis that the law set forth in these
cases does not apply to manufacturers. As such, McIntyre is tacitly conceding that Smith and Phipps
held that machinery may constitute an "improvement to real property" in cases in which, for example,
a contractor is being sued for installing said machinery in a negligent manner. The real dispute in the
present case, therefore, is with regard to the second question certified to this Court, which is dealt
with in much greater detail in this opinion.

     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 improvement to real property for
     purpose of §15-1-41?

¶10. As discussed above, McIntyre nominally argues that the first certified question should be
answered in the negative, but his real argument is that M.C.A. §15-1-41 was not intended to apply to
manufacturers. McIntyre notes correctly that the vast majority of Mississippi cases and cases of other
jurisdictions cited in Smith and Phipps did not apply the statute of repose to manufacturers.
However, in Trust Co. Bank v. U.S. Gypsum Co., 950 F.2d 1144, 1151 (5th Cir. 1992), the Fifth
Circuit Court of Appeals ventured an Erie-guess as to this Court's view regarding the present issue:

     Citing a litany of cases applying the law of states other than Mississippi, Plaintiff Trust
     complains that USG is not a protected actor under the Mississippi statute of repose. But while
     it is true that some states have denied repose protection to the manufacturers of defective
     building products, Mississippi is not one of those states. Section 15-1-41 is much broader than
     most statutes of repose. . . . By its express language, section 15-1-41 extends repose protection
     to `any person ... furnishing the design, planning, supervision of construction or construction of
     (an) improvement to real property.'

¶11. The Fifth Circuit went on to note that:

     While the Mississippi Supreme Court has never expressly addressed the question (of) whether
     section 15-1-41 protects manufacturers, it has given the statute that effect. In Smith v. Fluor
     Corp., 514 So.2d 1227 (Miss. 1987), the supreme court, on the basis of section 15-1-41,
     affirmed a summary judgment of a defendant manufacturer in a products liability action.

Id. at 1151, n. 15.

¶12. McIntyre disputes the characterization of the defendant in Smith as a manufacturer, asserting
that said party was in fact a "builder of a refinery".The facts of Smith support McIntyre's assertion,
revealing that the "Fluor Corporation built the Black Creek refinery for Pontiac Eastern
Corporation." Smith, 514 So.2d at 1228. In the more recent Phipps case, this Court reaffirmed
Smith, noting that, in said case, "we held that an addition of machinery to an oil refinery was an
improvement to real property under the statute."Phipps, 636 So.2d at 354. Phipps, however,
involved a suit against a construction company and a group of "industrial design engineers," the
scope of whose businesses are not clearly set forth in the opinion. Id.

¶13. At any rate, it is clear that this Court has not squarely addressed the question of whether or not
§15-1-41 was intended by the Legislature to provide protection to manufacturers. Although the Fifth
Circuit ventured an Erie-guess in Trust that said statute did provide protection to manufacturers, the
certification of the present question clearly indicates the unsettled nature of this question in the view
of the Fifth Circuit, given that M.R.A.P. 20 only provides for certification of questions in cases in
which there is no "clear controlling authority." Further, as will be discussed later, the Fifth Circuit
expressed its view, in a case interpreting the Texas statute of repose, that the intent of the Texas
legislature in adopting said statute was best interpreted as providing protection to such parties as
architects, engineers, and contractors, but not manufacturers.
¶14. Miss. Code Ann. § 15-1-41, provides in pertinent part, that:

     No action may be brought to recover damages for injury to property, real or personal, or for an
     injury to the person, arising out of any deficiency in the design, planning, supervision or
     observation of construction, or construction of an improvement to real property, and no action
     may be brought for contribution or indemnity for damages sustained on account of such injury
     except by prior written agreement providing for such contribution or indemnity, against any
     person, firm, or corporation performing or furnishing the design, planning, supervision of
     construction or construction of such improvement to real property more than six (6) years after
     the written acceptance or actual occupancy or use, whichever comes first, of such improvement
     by the owner thereof.

¶15. There is nothing on the face of § 15-1-41 which limits said statute to "architects, engineers, and
contractors," as the protected class of individuals is often referred to. Thus, a blind reading of the
statute might lead this Court to conclude that a manufacturer was within the protected class of
parties under §15-1-41, so long as the product manufactured constitutes an "improvement to real
property" under Smith and Phipps.

¶16. However, a logical analysis of the statute, along with a review of the persuasive authority on
point, leads inescapably to the conclusion that the Legislature did not intend for manufacturers to be
within the protected class of parties under §15-1-41. By setting forth a statute of repose in the limited
context of improvements to real property, the Legislature clearly did not intend to grant protection to
all potential defendants. Thus, the question arises as to exactly which parties and in which
circumstances the Legislature did intend to grant such protection. In concluding that a given party
should be entitled to an enhanced degree of protection against liability, this Court can infer that the
Legislature had a rational basis for granting such protection. There is no rational basis for the
Legislature to have concluded that manufacturers of products which, for whatever reason, become
attached to real property should be faced with a lesser degree of liability than that faced by
manufacturers of more mobile products.

¶17. Moreover, contrary to the assertion of the Fifth Circuit in Trust, §15-1-41 is not "much broader
than most statutes of repose." In fact, the statute is very similar to the language of the statutes of
several states whose courts have concluded that the statute was not intended to apply to
manufacturers. In Luzadder v. Despatch Oven Co., 834 F.2d 355 (3rd Cir. 1987), for example, the
Third Circuit Court of Appeals applied Pennsylvania law with regard to a statute of repose which
provided protection to:

     any person lawfully performing or furnishing the design, planning, supervision, or observation
     of construction, or construction of an improvement to real property.

Luzadder, 834 F.2d at 359. Based on this statutory language, which is almost identical to the
language of §15-1-41, The Third Circuit Court of Appeals noted:

     We believe that manufacturers have, for good reason, been excluded from the protection of
     Pennsylvania's statute of repose. Application of (the statute of repose) to manufacturers would
     cut the heart out of Pennsylvania's product liability law, by immunizing any manufacturing
     company fortunate enough to have its product turned into an improvement to real property. To
     expand the scope of the repose statute to cover manufacturers would also work to draw an
     artificial distinction between manufacturers of different products, creating a situation where the
     maker of a furnace would be protected by the provisions of (the statute of repose), while the
     maker of an automobile would not be. No policy or reason can be cited to justify such
     incongruity.

Luzadder, 834 F.2d at 359-360.

¶18. The logic of the Third Circuit Court of Appeals is compelling, and said court is far from alone in
expressing the aforementioned view.

¶19. In Burmaster v. Gravity Drainage Dist. No. 2 of St. Charles Parish, 366 So.2d 1381, 1385
(La. 1978), the Supreme Court of Louisiana interpreted a statute of repose which provided that:

     No action whether ex contractu, ex delicto or otherwise, to recover on a contract or to recover
     damages shall be brought against any person performing or furnishing the design, planning,
     supervision, inspection, or observation of construction or the construction of an improvement
     to immovable property.

In interpreting this language, the Louisiana court did not actually find that the language served to
exclude manufacturers or materialmen, given that the issue presented was one of the constitutionality
of the statute. However, the court did state:

     [A]ssuming arguendo that [manufacturers] are excluded from the language of the statute, we
     nevertheless find the statute constitutional as the exclusion is founded on a valid distinction.
     Suppliers and manufacturers, who typically supply and produce components in large quantities,
     make standard goods and develop standard processes. They can thus maintain high quality
     control standards in the controlled environment of the factory. On the other hand, the architect
     or contractor can pre-test and standardize construction designs and plans only in a limited
     fashion. In addition, the inspection, supervision and observation of construction by architects
     and contractors involves individual expertise not susceptible of the quality control standards of
     the factory.

Burmaster, 366 So.2d at 1386. Thus, the Louisiana Supreme Court concluded that a product
manufactured under factory conditions and with the expectation that said product will be widely
disseminated to the public may rationally be determined to be subject to a higher standard of liability
than, for example, an individual house designed by a given architect who has the benefit of far fewer
resources.

¶20. In Snow v. Harnischfeger Corp. Elec. Co., 12 F.3d 1154, 1157 (1st Cir. 1993), the First
Circuit Court of Appeals interpreted the Massachusetts statute of repose, which applies to "Action
[sic] of tort for damages arising out of any deficiency or neglect in the design, planning, construction
or general administration of an improvement to real property." The First Circuit did not have to
venture an Erie-guess as to whether or not said statute applied to manufacturers, given that the
Supreme Judicial Court of Massachusetts had held in Dighton v. Federal Pacific, 506 N.E.2d 509,
515 (Mass. 1987) that:
     [W]e 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.

Thus, the Massachusetts court applied an analysis based to a large extent on the analysis in
Burmaster.

¶21. As mentioned earlier, the Fifth Circuit Court of Appeals has expressed an understandable
reluctance to apply statutes of repose to manufacturers, although it has done so, citing binding state
court decisions on point. In Dedmon v. Stewart-Warner Corp., 950 F.2d 244 (5th Cir. 1992), the
Fifth Circuit, interpreting Texas law, expressed an inclination to exclude manufacturers from the
protection of the Texas statute of repose, noting:

     We suspect that the Texas Legislature intended the repose statute to protect a specific class of
     economic actors- construction-industry professionals who perform certain functions. But the
     broad wording of the statute blurs the intended boundaries of the class. . . . If we look for the
     correct analysis in the legislative intent of protecting architects, engineers, and contractors, we
     might be inclined to draw a boundary that includes only those persons who supply `individual
     expertise not susceptible of the quality control standards of the factory' and exclude
     manufacturers or suppliers of standardized goods such as circuit breakers, garage door openers,
     and mass-produced heating units. However, doing so would require us to depart from an
     unbroken line of authority developed in several Texas appellate court decisions applying the
     repose statute to manufacturers of such goods intended for use as improvements.

Dedmon, 950 F.2d at 250.

¶22. One of the Texas appellate court decisions cited by the Fifth Circuit Court of Appeals is
Rodarte v. Carrier Corp., 786 S.W.2d 94 (Tex.App.-El Paso 1990). In Rodarte, Rodarte was
electrocuted and killed by a heater-air conditioner unit which was designed, manufactured, and
marketed by the Carrier Corporation, but which was installed at least twelve years prior to the date of
the accident (although not by Carrier). The Texas court held that the action against the manufacturer
was barred by Texas' ten-year statute of repose, which disallows all claims for damages, including
wrongful death actions, against a person who "constructs or repairs an improvement to real
property." Rodarte, 786 S.W.2d at 95.

¶23. The analysis of the Texas court was as follows:

     The Appellant's initial complaints are that the statute of repose does not apply in this case
     because Carrier Corporation as a manufacturer had no role in the installation or servicing of this
     unit and that such unit was only a component part of a greater system and was not in itself an
     improvement. The statute only requires that the particular item in question be `an improvement
     to real property.' Courts have held that a heating or refrigeration system is an improvement to
     real property. (citations omitted).
Rodarte, 786 S.W.2d at 94.

¶24. Thus, the Texas court's sole inquiry was as to whether the air conditioner in question constituted
an improvement to real property, and said court did not consider the issue of whether the Legislature
had intended to apply the statute to a narrower class of construction industry professionals.

¶25. A second Texas appellate court decision cited by the Fifth Circuit in Dedmon as binding
authority is Ablin v. Morton Southwest Co., 802 S.W.2d 788 (Tex.App.-San Antonio 1990). In
Ablin, the Texas court affirmed the dismissal of an action brought by the parents of a six-year-old
boy who was choked to death by a garage door, allegedly as the result of a defective garage door
opener which had been installed more than ten years prior to the accident. The Texas court in Ablin
reached this decision after undertaking a thorough analysis of the extent to which the garage door
opener was connected to the house and thus limited its inquiry to the issue of whether or not the
garage door opener constituted an improvement to real property. Ablin, 802 S.W.2d at 789.

¶26. There can be no more persuasive argument against the application of the statute of repose to
manufacturers than the aforementioned Texas cases. Assuming they were able to establish liability on
the part of the manufacturers, the families of the little boy in Ablin and the father in Rodarte would
have presumably been entitled to substantial judgments to compensate them for their suffering if only
the air conditioner unit and garage door opener in question had been attached to the house in a less
permanent and fixed manner. Basing liability or a lack thereof on the extent to which a product is
attached to real property is so arbitrary as to shock the conscience.

¶27. Quite apart from the arbitrariness of allowing or disallowing claims for grievous injuries based
upon the mobility of products, the view of the Fifth Circuit and other previously mentioned federal
appeals courts is much more persuasive when considered in light of the reality of legislative politics.
It does not require an expert on the legislative process to understand that governing bodies more
frequently engage in the passing of legislation based on classifications of people and professions
rather than on arbitrary and irrational classifications of products. It is thus highly doubtful that the
Legislature was motivated in passing §15-1-41 out of a desire to enhance the legal protection granted
to manufacturers of products used as improvements to real estate over the protection granted to
manufacturers of more mobile products.

¶28. Further evidence of the Legislature's intent can be gleaned from the language of the statute itself,
which refers to the "construction" rather than "manufacture" of improvements to real property. In the
case of a piece of machinery, the process of producing such machinery is, of course, referred to as the
"manufacture" of the machinery, while "construction" is a term which is used in the context of the
construction of buildings and other such structures. This point is simple and obvious, but it
nevertheless constitutes an important basis for determining the intent of the Legislature.

¶29. In the view of this Court, the Legislature could not have intended to create an irrational
dichotomy between those manufacturers whose products are used as improvements to real estate and
those who are not. Such a distinction would serve not only to set differing standards of liability for
different products, but also to establish differing standards of liability for identical products based
solely upon how they are used by the customer. For example, a manufacturer of a crane would
presumably be granted repose protection for a crane which was bolted down and integrated with
other machinery at a loading port, but would receive no protection for a crane which was used by a
construction company at a variety of locations. Such an arbitrary result can not have been the
Legislature's intent in passing §15-1-41.

¶30. The application of §15-1-41 to mass-manufactured products could lead to very dangerous and
undesirable consequences for the citizens of this state. There are countless products which are
generally used for a period far in excess of the six-year period set forth in the statute of repose, and
such is particularly the case with products which are incorporated into buildings and houses. An
interpretation of §11-1-63 in the manner urged by Farrel would in effect serve as a signal to
manufacturers that they need exercise a lesser degree of care with regard to products which will be
used as improvements to real property than with regard to other products. The manufacturer of gas
or water pipes which are placed in buildings, for example, could specifically manufacture the pipes
using cheaper materials which are designed to last a minimum of six years, knowing that it would
face a lesser degree of liability or even no liability if said pipes leaked and caused injury to third
parties more than six years after the pipes were installed.

¶31. In the view of this Court, the bottom line is that the Legislature intended to provide enhanced
protection against liability to certain construction industry professionals such as architects and
contractors based on the nature of the professions. Some members of this Court have expressed
doubts as to the constitutionality of providing this protection at all, but the present question does not
require this Court to consider this issue. Although the constitutionality of §15-1-41 in its entirety is
thus not at issue in this certified question(1), this Court should nevertheless endeavor to limit the
protection of said statute to the members of the professions to which it was intended to apply.

¶32. Therefore, this Court's answer to the second certified question is that an 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.

¶33. CERTIFIED QUESTION ANSWERED.

SULLIVAN, P.J., PITTMAN, BANKS, McRAE, ROBERTS AND SMITH, JJ., CONCUR.
LEE, C.J., AND MILLS, J., CONCUR IN RESULT ONLY.


1. Although McIntyre sought to have the issue of whether or not §15-1-41 violates the open courts
provision of the Mississippi constitution certified, there is "clear controlling precedent" with regard to
this issue in Anderson v. Fred Wagner and Roy Anderson, Jr., Inc., 402 So.2d 320, 324 (Miss.
1982) and the Fifth Circuit therefore properly declined to certify this question pursuant to M.R.A.P.
20. Some members of this Court have expressed views contrary to the holding reached in Anderson,
(See: Phipps dissent, 636 So.2d at 364-368) but Anderson remains controlling authority with regard
to this issue, and M.R.A.P. 20 clearly indicates that the device of the certified question should be
utilized only with regard to unsettled issues of law.
