                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-1137


DEBORAH STREETER, Individually and As Surviving Spouse and
Personal Representative of the Estate of Jimmy Wayne
Streeter; M. A. S., minor,

                Plaintiffs - Appellants,

          v.

SSOE SYSTEMS, INCORPORATED; SSOE, INCORPORATED; CIANBRO
CORPORATION; CIANBRO EQUIPMENT, LLC; CIANBRO FABRICATION AND
COATING   CORPORATION;  WARREN   ENVIRONMENT,  INCORPORATED;
ENGINEERED CRANE SYSTEMS OF AMERICA,

                Defendants – Appellees,

          and

NUCOR BUILDING SYSTEMS SALES CORPORATION; NUCOR CORPORATION,
d/b/a Nucor Building Products Sales Corporation, d/b/a Nucor
Building Systems Sales Corporation, d/b/a Nucor Steel Sales
Corporation, d/b/a Nucor Cold Finish Sales Corporation,
d/b/a Nucor-Yamato Steel Sales Corporation, d/b/a Nucor
Fastener Sales Corporation; NUCOR ENVIRONMENTAL SERVICES,
INCORPORATED; NUCOR PROPERTIES, LLC; NUCOR-YAMATO STEEL
SALES CORPORATION,

                Defendants.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.   William M. Nickerson, Senior District
Judge. (1:09-cv-01022-WMN)


Submitted:   September 2, 2011          Decided:   September 15, 2011
Before SHEDD, DUNCAN, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Ronald U. Shaw, Amanda P. Just, SHAW, JOSEPH & JUST, P.A., Hunt
Valley, Maryland, for Appellants.      Robert L. Ferguson, Jr.,
Michele Z. Blumenfeld, Bernard A. Meis, FERGUSON, SCHETELICH &
BALLEW, P.A., Baltimore, Maryland; Patrick James Attridge, KING
& ATTRIDGE, Rockville, Maryland, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

              In   this    diversity     action,     Deborah    Streeter       and    her

minor son appeal the district court’s amended order granting

summary judgment to the Appellees pursuant to Md. Code Ann.,

Cts. & Jud. Proc. § 5-108(b) (LexisNexis 2006) upon finding that

the cause of action had not accrued because it occurred more

than    ten   years       after   the    entire     improvements       to   the      real

property were made available for its intended use.                    We affirm.

              On March 14, 2006, Jimmy Streeter was sitting in his

truck at a W.R. Grace plant in Baltimore, Maryland.                         During a

period of high winds, a portion of the calciner start-up stack

(the “Stack”) broke loose and fell onto the truck, resulting in

Streeter’s     death.        Deborah     Streeter    sought     compensation         from

those   parties      she    believed      responsible     for    the    design       and

construction of the Stack.

              This court reviews an order granting summary judgment

de novo.      Limbach Co. LLC v. Zurich Am. Ins. Co., 396 F.3d 358,

361 (2005).        The court will uphold an award of summary judgment

only if the moving party shows by citing to parts of the record,

submitting         depositions,         documents,     electronically             stored

information, affidavits, declarations, stipulations, admissions,

interrogatory       answers       or   other   materials       that    there    is    no

genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law.                      Fed. R. Civ. P.

                                           3
56(a), (c).        In an action based upon diversity of citizenship,

the law of the forum state applies.             Limbach, 396 F.3d at 361.

              Under Md. Code Ann., Cts. & Jud. Proc. § 5-108(b):

       Except as provided by this section, a cause of action
       for damages does not accrue and a person may not seek
       contribution   or   indemnity  from   any   architect,
       professional engineer, or contractor for damages
       incurred when wrongful death, personal injury, or
       injury to real or personal property, resulting from
       the defective and unsafe condition of an improvement
       to real property, occurs more than 10 years after the
       date the entire improvement first became available for
       its intended use.

              When a state enacts a statute of repose, the state

“creates a substantive right in those protected to be free from

liability      after   a     legislatively-determined         period    of    time.”

First United Methodist Church of Hyattsville v. U.S. Gypsum Co.,

882 F.2d 862, 866 (4th Cir. 1989).                  “It is a substantive grant

of   immunity      derived    from   a   legislative      balance      of    economic

considerations affecting the general public and the respective

rights   of    potential      plaintiffs      and    defendants.”       Carven    v.

Hickman, 763 A.2d 1207, 1211 (Md. App. 2000).

              We   agree   with   the    district     court   that     the    “entire

improvement” at issue was that improvement intended by the first

project, which was the manufacture of silica sol.                       The second

project, which overlapped the first project, had a different

intended use and did not modify the first project’s intended

use.     We also agree with the district court that the first


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project’s entire improvements were available for its intended

use by the end of December 1995.         Thus, because Jimmy Streeter’s

death occurred more than ten years after the improvements were

available to manufacture silica sol, the cause of action against

those parties responsible for the design and construction of the

Stack did not accrue.

           Accordingly,    we   affirm    the   amended   judgment.     We

dispense   with   oral    argument   because     the   facts   and    legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

                                                                 AFFIRMED




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