                 UNITED STATES COURT OF APPEALS
                      For the Fifth Circuit



                          No.    99-30329


                   MARK N MOLL; BEVERLY MOLL,

                                            Plaintiffs - Appellants,

                                VERSUS

                    BROWN & ROOT INC., ET AL,

                                                         Defendants,

ABB LUMMUS GLOBAL, INC., formerly known as Lummus Crescent, Inc.,
                  COMBUSTION ENGINEERING, INC.,

                                               Defendants-Appellees,

                                VERSUS

 BEAIRD INDUSTRIES, INC., formerly known as Riley-Beaird, Inc.;
   FLUOR DANIEL, INC., formerly known as Fluor Engineers and
                      Constructors, Inc.,

                                              Defendants-Appellants.


          --------------------------------------------



                          No.    99-30526


                   MARK N MOLL; BEVERLY MOLL,

                                            Plaintiffs - Appellants,

                                VERSUS

                    BROWN & ROOT INC., ET AL,

                                                         Defendants,
                        H B ZACHRY COMPANY,

                                                Defendant-Appellee,

                               VERSUS

      FLUOR DANIEL, INC., formerly known as Fluor Engineers
         and Constructors, Inc.; BEAIRD INDUSTRIES, INC.,
              formerly known as Riley-Beaird, Inc.,

                                              Defendants-Appellants.




           Appeals from the United States District Court
               For the Eastern District of Louisiana
                           July 24, 2000


Before JONES, DUHÉ, and WIENER, Circuit Judges.

PER CURIAM:

      In this consolidated appeal of a grant of summary judgment, we

AFFIRM the district court's conclusion that Plaintiffs/Appellants'

claims against Appellees, ABB Lummus Global, Inc. and Combustion

Engineering, Inc. (collectively “Lummus”) and H.B. Zachry Company

(“Zachry”), are perempted under Louisiana Revised Statute Section

9:2772.1

                             BACKGROUND

      Plaintiff/Appellant, Mark N. Moll (“Moll”) suffered injuries

while working on an industrial furnace (“furnace twenty-one”) at



  1
   The version of the statute in effect at the time Moll was
injured used the term “preemption”. A later amendment to Section
9:2772 substituted the term “perempted” for the term “preempted”
throughout the provision.

                                 2
Union Carbide's Olefins II Unit of its petrochemical plant in Taft,

Louisiana. The Olefins II Unit is a seven-story structure built on

a concrete foundation and permanently attached to land owned by

Union Carbide which could not be removed without substantial damage

to itself and the soil to which it is anchored.2               Attached to

Furnace-21 of the Olefins II Unit is an exterior muffler silencer

which (1) was designed and fabricated elsewhere by Defendants-

Appellees Fluor Daniel, Inc. and Beaird Industries, Inc., (2) was

specified   by    Lummus,   the   engineering   firm   that   designed   and

engineered the Olefins II Unit, and (3) as specified, was installed

in the construction of the Olefins II Unit by Zachry, the general

contractor.      According to Moll, while he was attempting to release

pressurized steam from the furnace, the muffler disconnected from

its ventline piping causing a piece of the muffler to strike him in

the face.     Moll sued3 under Louisiana law a number of parties

including Fluor and Beaird as designers and fabricators of the

muffler, Lummus as design engineer of the Olefins II Unit, and

Zachry as general contractor for the Unit.

      Lummus moved for summary judgment asserting that Louisiana's


  2
   Louisiana Civil Code Article 466 defines things that are
permanently attached to an immovable as things that “cannot be
removed without substantial damage to themselves or to the
immovable to which they are attached.”    LA. CIV. CODE art. 466
(1979). The evidence clearly indicates that the Olefins II Unit
could not be removed without substantial damage to the ground to
which it is attached.
  3
   Moll's wife is also a named Plaintiff/Appellant.

                                      3
ten year peremptive period for actions involving design and/or

construction of immovables or improvements to immovables had run.

See LA REV. STAT. § 9:2772 (1964).     The district court denied this

motion.   Upon motion for reconsideration, however, the district

court granted Lummus' motion.      Shortly after the court's second

ruling, Zachry moved for summary judgment on the same grounds.        The

court granted Zachry's motion.     Plaintiffs/Appellants, the Molls,

along with Defendants/Appellants, Beaird Industries, Inc. and Fluor

Daniel, Inc., appealed both rulings asserting that the muffler at

issue is not an immovable and falls outside the scope of Section

9:2772.   Albeit for reasons differing from those expressed by the

district court, we AFFIRM that court’s ultimate conclusion that

plaintiffs/appellants’   actions   against   Lummus   and   Zachary   are

perempted under § 9:2772.4

                         STANDARD OF REVIEW

      We review a grant of summary judgment de novo, viewing the

facts and inferences in the light most favorable to the party


  4
   The district court reached its conclusion of Section 9:2772
peremption for Lummus and Zachary by focusing on the muffler and
analyzing its nature under Louisiana Civil Code art. 466, doing so
before this Court’s decision in Prytania Park Hotel v. General Star
Indemnity Co., 179 F.3d 169 (5th Cir. 1999) and concluding that the
muffler is an immovable or an improvement to an immovable for
purposes of Section 9:2772. In contrast, we resolve the issues as
to the parties presently before us by determining the nature of
the Olefins II Unit in its entirety, not by focusing solely on the
muffler as a discreet element of the Unit, analyzing the treatment
of “improvement” throughout the Civil Code and the applicable
jurisprudence.


                                   4
opposing the motion.    See Hall v. Gillman, Inc., 81 F.3d 35, 36-37

(5th Cir. 1996).      Summary judgment is appropriate if the record

discloses “that there is no genuine issue as to any material fact

and that the moving party is entitled to a judgment as a matter of

law.”   Fed. R. Civ. P. 56(c); accord Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986).



                              DISCUSSION

I.   Section 9:2772

     The 1964 version of Section 9:2772 reads in relevant part:

                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:
                (1) More than ten years after the date of
           registry in the mortgage office of acceptance
           of the work by owner; or
                (2) If no such acceptance is recorded
           within six months from the date the owner has
           occupied    or  taken    possession   of   the
           improvement, in whole or in part, more than
           ten years after the improvement has been thus
           occupied by the owner....

LA REV. STAT. § 9:2772 (1964) (emphasis supplied). While the parties

focus on whether or not the allegedly defective muffler was an

immovable under this provision, we do not find it necessary to

resolve this dispute.      Rather, we conclude that the Olefins II

Unit, as designed by Lummus and constructed by Zachry, is “an



                                  5
improvement to immovable property.”          Accordingly, Section 9:2772

perempts Plaintiffs'/Appellants' claims against both Appellees.

II.   “Improvements” under the Louisiana Civil Code

      The Olefins II Unit stands upon land which is an “immovable.”

See LA. CIV. CODE art. 462 (1979) (“Tracts of land, with their

component parts, are immovables.”).          Although the Civil Code does

not specifically define “improvement,” a number of Articles suggest

that man-made constructions permanently attached to the ground are

improvements.5    For     instance,       both   Civil   Code   Article   493

concerning   “Ownership    of   improvements”        and   Article    2367.1

concerning “Improvements on separate property” begin with the

phrase “Buildings, other constructions permanently attached to the

ground, and plantings made on the land....”          See LA. CIV. CODE art.

493 (1984), LA. CIV. CODE art. 2367.1 (1990).        Similarly, Civil Code

Article 497 dealing with “Constructions by bad faith possessors”

provides that “[w]hen constructions, plantings, or works are made

by a bad faith possessor, the owner of the immovable may keep them

or he may demand their demolition.”         LA. CIV. CODE art. 497 (1979).


  5
   This   case   involves   the  classification    of  a   man-made
construction. Not all improvements to immovables are such
constructions e.g. clearing forests or draining swamps. Although
we find that all man-made constructions permanently attached to the
ground are “improvements,” not all “improvements” are man-made
constructions permanently attached to the ground. Accordingly, this
definition of what man-made constructions are “improvements” is
neither exhaustive as to man-made constructions, nor applicable to
all “improvements.” Rather, we wish only to demonstrate that the
Olefins II Unit is an “improvement to an immovable” under Louisiana
law.

                                      6
Article 497 reads further that when the owner of the land does not

demand   demolition   or   removal,   he   must   pay    to   the   bad   faith

possessor the current value of materials and workmanship of the

“separable improvements that he has kept or the enhanced value of

the immovable.”   Id.

     In referring to “separable” improvements, Article 497 implies

the existence of “inseparable” improvements.            At first blush, this

implied distinction could suggest that permanence of attachment to

the ground should not be a touchstone for determining what is or is

not an improvement because both separable (read: movable) and

inseparable (read: immovable) items could be improvements.                 The

Louisiana Legislature's Revision Comments to Article 497, however,

suggest a different reading:

                (c) According to Louisiana jurisprudence,
           separable improvements are those that do not
           become merged with the soil and remain
           distinguishable as individual works, such as
           houses,   barns,   carports   and   the   like.
           Inseparable improvements are those that become
           permanently merged with the soil and lose
           their identity as separate works, such as
           clearing,   draining,   filling   in,   digging
           irrigation     ditches,    building     levees,
           reservoirs, or lakes, and the like.          In
           effect,   separable   improvements    are   new
           constructions subject to accession, while
           inseparable     improvements     are     useful
           expenditures....

           ....

                (e) This provision applies to buildings,
           other constructions permanently attached to
           the ground, standing timber, unharvested crops
           or ungathered fruits of trees, and things that
           become component parts of an immovable....

                                      7
1979 La. Acts 180 § 1 (citation omitted).                Judging from this

expression of legislative intent, we conclude that “separability”

relates to an item's identity rather than its physical permanence

or portability.   In other words, while a house, barn, or carport is

a “separable improvement” that retains an identity separate from

the ground upon which it is built, it is also a “building, or other

construction permanently attached to the ground.“

     Although not as on point as Articles 493, 497, and 2367.1,

Article 558 concerning “Improvements and alterations” made by a

usufructuary    suggests   a    difference   between   “improvements”    and

“alterations”     that     at    least    permits   an     inference    that

“improvements” are somehow more substantially attached to the

ground than are mere “alterations” to property.            See LA. CIV. CODE

art. 558 (1977).     Moreover, Articles 601 and 602 concerning a

usufructuary's “Removal of improvements” and “Set off against

damages” both refer to “improvements ... that cannot be removed”

from property subject to a usufruct.          See LA. CIV. CODE art. 601

(1977), LA. CIV. CODE art. 602 (1977).         Once again, although the

descriptive phrase “cannot be removed” might suggest eschewing our

permanent attachment analysis, looking to the Legislature's Comment

concerning Article 602 we note that this phrase reflects only the

separable/inseparable dichotomy noted in Article 497. See 1976 La.

Acts 103 § 1 (“[Article 602] changes the law as it makes setoff

(sic) subject to two conditions: (1) the improvements must be

inseparable; and (2) the improvements must be made in accordance

                                      8
with Article 558.”).      In the end, we are confident that the

Louisiana Civil Code supports our holding that the Olefins II Unit,

a seven story man-made construction permanently attached to the

ground as part of a chemical processing plant, is an   “improvement

to an immovable” under Louisiana law.

II.   Judicial Interpretations of Section 9:2772 “Improvements”

      The conclusion of those courts that have examined the term

“improvement” in the context of Section 9:2772 bolsters our holding

that the Olefins II Unit is an “improvement to an immovable.”     In

KSLA-TV, Inc. v. Radio Corporation of America, 693 F.2d 544 (5th

Cir. 1982), we affirmed    the district court's ruling that a suit

against the designer and fabricator of a television broadcast

tower, 1800 feet in height and resting on a concrete slab embedded

fifteen feet into the ground, was a claim arising from “the

construction of an improvement to [real] property.” Id. at 545-46.

Similarly, in Dugas v. Cacioppo, 583 So.2d 26 (La. App. 5th Cir.

1991), the Louisiana Court of Appeal for the Fifth Circuit ruled

that the term “improvements to immovable property” under Section

9:2772 can apply both to a new house and to subsequent additions

made to the house.   Dugas, 583 So.2d at 27.   Conversely, in Cosse

v. Allen-Bradley Company, 601 So.2d 1349 (La. 1992), the Louisiana

Supreme Court ruled that a scrap conveyor that was “suspended from

the floor of a building and attached with bolts” and that would

have to be disassembled and taken out in pieces to be removed was



                                 9
not “an improvement to an immovable.”           See id. at 1354.

      Although these three cases do not constitute a particularly

large sample, they do demonstrate a recognizable pattern.               In each

instance in which a court has applied the term “improvement to an

immovable” to a man-made construction permanently attached to the

ground, i.e. the broadcast tower in KSLA-TV and the house in Dugas,

it has deemed these items to be “improvements.”            On the other hand,

when faced with a man-made construction unattached to the ground,

i.e. the scrap conveyor in Cosse, the court ruled that the item was

not an “improvement to an immovable.”           As the Olefins II Unit is

anchored to the ground in a manner similar to the broadcast tower

in   KSLA-TV   we   find   that   it,   too,   is   “an   improvement    to   an

immovable” under Louisiana law.

                                  CONCLUSION

      For the reasons stated herein, we AFFIRM the district court's

conclusion on summary judgment that Plaintiffs/Appellants' claims

against Lummus and Zachry are perempted under Louisiana Revised

Statute Section 9:2772.




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