                  United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 15-2596
                          ___________________________

   Associated Electric & Gas Insurance Services; Zurich American Insurance
  Company; Energy Insurance Mutual Limited, all as subrogees of their insured
                      Northeast Utilities Service Company

                        lllllllllllllllllllll Plaintiffs - Appellants

Northeast Utilities Service Company, as agent of Public Service Company of New Hampshire

                                lllllllllllllllllllll Plaintiff

                                              v.

                                      BendTec, Inc.

                        lllllllllllllllllllll Defendant - Appellee
                          ___________________________

                                  No. 15-2598
                          ___________________________

   Associated Electric & Gas Insurance Services; Zurich American Insurance
  Company; Energy Insurance Mutual Limited, all as subrogees of their insured
                      Northeast Utilities Service Company

                               lllllllllllllllllllll Plaintiffs

Northeast Utilities Service Company, as agent of Public Service Company of New Hampshire

                         lllllllllllllllllllll Plaintiff - Appellant

                                              v.
                                    BendTec, Inc.

                        lllllllllllllllllllll Defendant - Appellee
                                       ____________

                    Appeals from United States District Court
                    for the District of Minnesota - Minneapolis
                                   ____________

                             Submitted: March 16, 2016
                                Filed: May 13 2016
                                  ____________

Before MURPHY, BEAM, and GRUENDER, Circuit Judges.
                          ____________

MURPHY, Circuit Judge.

      The Public Service Company of New Hampshire hired Siemens to replace a
turbine in one of its power plants. BendTec, Inc. manufactured steam pipes for the
new turbine as a subcontractor for Siemens. After the turbine was turned on, it
became damaged by fine grit. The utility and its insurers sued BendTec for
negligence, alleging that its pipes were the source of the grit and had been improperly
cleaned. The district court1 granted summary judgment to BendTec, concluding that
the negligence claim was barred under the two year limitations period in Minn. Stat.
§ 541.051 since the installation of the turbine was an improvement to real property.
The utility and insurance companies appeal, and we now affirm.




      1
      The Honorable Michael J. Davis, United States District Judge for the District
of Minnesota.

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                                          I.

       Public Service Company of New Hampshire (PSCNH) operates a coal power
plant in Bow, New Hampshire. The "Merrimack Station" power plant has two
generating units each consisting of a coal fired boiler and a turbine generator. Unit
2 was built in 1968, and PSCNH decided to upgrade it in 2006 by purchasing a new
340 megawatt turbine from Siemens Power Generation. Siemens was to be the
supplier of the new generator rotor and turbine, and it also agreed to procure the
manufacture, supply, and installation of all necessary components. Siemens
warranted that all equipment, materials, and supplies furnished by or through it would
be free from defects. The new turbine was installed by Siemens in the spring of 2008.

       "Turbine piping" carries high pressure steam from the boiler to the turbine.
Siemens had selected BendTec as the subcontractor to fabricate to its specifications
the turbine piping for the new PSCNH turbine. The piping consists of twenty one
sections of large pipe which are transported by flatbed truck and moved using cranes.
BendTec cleaned the interior of the piping using abrasive grit blasting, a process
which involves spraying steel grit at the piping under high pressure. It then
conducted a visual inspection of the pipes, capped them, and shipped them to the
Merrimack Station. The piping was delivered on April 8, 2008 and installed by
Siemens. After shipping the pipes, BendTec had no further involvement with the
project.

       On May 22, 2008 PSCNH started the turbine for the first time. Power output
was lower than expected, and eventually the turbine was shut down and an inspection
revealed steel grit blast material throughout the turbine. PSCNH's experts determined
that the grit had been blown into the turbine by high pressure steam and opined that
the foreign material was left over from BendTec's cleaning process. The turbine was
cleaned and turned back on. Eventually PSCNH replaced the turbine blades and other
components which had been damaged.

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       On May 21, 2014 PSCNH's agent Northeast Utilities Service Company, along
with Associated Electric and Gas Insurance Services, Zurich American Insurance
Company, and Energy Insurance Mutual Limited, the insurers and subrogees of
Northeast Utilities Service Company (collectively, "plaintiffs"), sued BendTec for
negligence. The district court granted summary judgment to BendTec, concluding
that the plaintiffs' claim was barred under the applicable statute of limitations. The
plaintiffs appeal.

                                          II.

       We review a grant of summary judgment de novo. Woods v. DaimlerChrysler
Corp., 409 F.3d 984, 990 (8th Cir. 2005). Summary judgment is appropriate if there
are no genuine issues of material fact when the record is viewed in the light most
favorable to the nonmoving party, and the moving party is entitled to judgment as a
matter of law. Id.; see Fed. R. Civ. P. 56. We apply Minnesota law in this diversity
case. In doing so we are bound by the decisions of the Minnesota Supreme Court.
Badrawi v. Wells Fargo Home Mortg., Inc., 718 F.3d 756, 758 (8th Cir. 2013). If that
court has not ruled on a particular issue, we consider what rule it would likely apply.
Id. Decisions of the Minnesota Court of Appeals are not binding on us but may be
instructive. Doe v. Baxter Healthcare Corp., 380 F.3d 399, 407 (8th Cir. 2004);
Aerotronics, Inc. v. Pneumo Abex Corp., 62 F.3d 1053, 1068 (8th Cir. 1995).

       Minnesota has a two year statute of limitations for contract and tort claims
"arising out of the defective and unsafe condition of an improvement to real property"
and "brought against any person performing or furnishing the design, planning,
supervision, materials, or observation of construction or construction of the
improvement to real property." Minn. Stat. § 541.051, subd. 1(a). The statute
contains an exception however for "the manufacturer or supplier of any equipment
or machinery installed upon real property." Id. subd. 1(e). If the exception applies,



                                         -4-
negligence claims against a manufacturer or supplier are subject to a six year statute
of limitations. See Minn. Stat. § 541.05, subd. 1(5).

      The questions presented here are whether the turbine piping installed on the
new turbine at the Merrimack Station was an "improvement to real property," and if
so, whether BendTec fits the subdivision 1(e) exception for a manufacturer or
supplier of equipment or machinery.

                                          A.

      The Minnesota Supreme Court has said that courts should use a
"common-sense interpretation" of the phrase "improvement to real property" under
section 541.051, defining such an improvement as

      [A] permanent addition to or betterment of real property that enhances
      its capital value and that involves the expenditure of labor or money and
      is designed to make the property more useful or valuable as
      distinguished from ordinary repairs.

Lietz v. N. States Power Co., 718 N.W.2d 865, 869 (Minn. 2006); see also
Kloster-Madsen, Inc. v. Tafi's, Inc., 226 N.W.2d 603, 607 (Minn. 1975) (same)
(quoting Webster's Third New International Dictionary 1138 (1971)).

       The installation of the new turbine at Merrimack Station, at a total cost of over
$12 million, meets each of the three main factors used by Minnesota courts to
ascertain whether something is an improvement to real property. See Siewert v. N.
States Power Co., 793 N.W.2d 272, 287 (Minn. 2011). The turbine is a "permanent
addition" to the power plant. See id. The installation of the turbine involved large
expenditures of labor and money. See id. The turbine enhanced the capital value of
the power plant because it was "designed to make the real property more useful or
valuable, rather than intended to restore the property's previous usefulness or value."

                                          -5-
See id. Plaintiffs' own complaint characterizes the project as an "upgrad[e]"
designed to "increase power generation capacity," as opposed to simply a restoration
of the existing turbine.

       In Harder v. ACandS, we considered whether a steam turbine at a power plant
was an "improvement to real property" for the purposes of Iowa's statute of
limitations. 179 F.3d 609, 612 (8th Cir. 1999) (analyzing Iowa Code § 614.1(11)).
The Iowa Supreme Court uses the same definition of an improvement from Webster's
Dictionary as the Minnesota Supreme Court. Id.; Krull v. Thermogas Co., 522
N.W.2d 607, 611 (Iowa 1994). In Harder, we agreed with the district court's
conclusion that power plant turbines are improvements to real property. 179 F.3d at
612. The district court concluded that turbines are improvements because they "are
large component parts of the power plant weighing as much as 100 tons that have
been permanently installed with concrete foundations." Harder v. ACandS, Inc., 11
F. Supp. 2d 1055, 1061 (N.D. Iowa 1998), rev'd on other grounds, Harder, 179 F.3d
at 612. Further, the turbines are "integrated into the power plant structure, and are
connected to other integral components by miles of complex piping and wiring." Id.
The same considerations apply to the new turbine installed at the Merrimack Station,
and we see no reason to doubt that the Minnesota Supreme Court would reach the
same conclusion as we predicted the Iowa Supreme Court would. Indeed, Minnesota
courts have found smaller structures or pieces of equipment to fall within the
definition of an improvement to real property. See, e.g., State Farm Fire & Cas. v.
Aquila Inc., 718 N.W.2d 879, 884 (Minn. 2006) (natural gas pipeline system); Sartori
v. Harnischfeger Corp., 432 N.W.2d 448, 451–52 (Minn. 1988) (crane fabricated on
a mining facility).

      We further conclude that the BendTec piping was an improvement to real
property. We concluded in Harder that asbestos blankets attached to a steam turbine
were improvements because they were permanent additions to the turbine and
enhanced the property's capital value. See 179 F.3d at 612–13. Here, the pipes at

                                         -6-
issue are large integral components of the turbine and therefore permanent additions
to it. Purchasing and installing the pipes involved significant expenditures of labor
and capital, and enhanced the property's value. Because the turbine and the piping
are improvements to real property and BendTec furnished the piping, this lawsuit falls
within the scope of Minn. Stat. § 541.051, subd. 1(a).

                                          B.

       The plaintiffs contend that the subdivision 1(e) exception applies to BendTec
because it was a "manufacturer or supplier of any equipment or machinery." Minn.
Stat. § 541.051, subd. 1(e). The plaintiffs have the burden of showing that this
exception applies. Integrity Floorcovering, Inc. v. Broan–NuTone, LLC, 521 F.3d
914, 919 (8th Cir. 2008). Under Minnesota law, "any exception to the statutes of
limitation should be used only in exceptional circumstances." Id. (emphasis in
original) (quoting Aquila, 718 N.W.2d at 886).

       The Minnesota Supreme Court has not yet clarified the test for determining
whether a defendant is a manufacturer or supplier of "equipment or machinery" and
thus subject to the subdivision 1(e) exception. Minnesota Court of Appeals cases to
date have also "provided little guidance or clarity" as to the meaning of that term.
Integrity Floorcovering, 521 F.3d at 919. That court has however made a distinction
between "ordinary building materials, which are incorporated into construction work
outside the control of their manufacturers or suppliers, at the direction of architects,
designers, and contractors," and machinery and equipment which is "subject to close
quality control at the factory and may be made subject to independent manufacturer's
warranties, voidable if the equipment is not installed and used in strict compliance
with the manufacturer's instructions." Id. (quoting Cape Henry Towers, Inc. v. Nat'l
Gypsum Co., 331 S.E.2d 476, 480 (Va. 1985), adopted by Red Wing Motel Investors
v. Red Wing Fire Dep't, 552 N.W.2d 295, 297 & n.2 (Minn. App. 1996)).



                                          -7-
       In Integrity Floorcovering, we noted that classifying a bathroom ventilation fan
as either "ordinary building material" or "equipment or machinery" posed a difficult
question because the fan shared characteristics of both categories as defined by the
Minnesota Court of Appeals. 521 F.3d at 919–20. The available limited precedent
categorizes items as "ordinary building materials" if they are "integrally incorporated
as part of a building structure." Id. at 920 (collecting cases). Within the category of
"equipment or machinery" covered by the exception are items which "are typically
large scale items, which are not integral to or incorporated into the building, and
could exist separately from the building structure." Id. (collecting cases).

       We believe that the Minnesota courts would not consider BendTec's turbine
piping to be equipment or machinery covered by the exception. On the one hand, the
piping was subject to quality control at BendTec's factory and was covered by a
warranty. The pipes are also large scale items, and they are not "ordinary" in the
same sense as building materials available at retail like the bathroom fan we
considered in Integrity Floorcovering. See 521 F.3d at 920. On the other hand, the
pipes have several of the characteristics of ordinary building materials. The turbine
piping was incorporated into the turbine by Siemens outside of BendTec's control.
Siemens designed the piping and installed it according to its own specifications, not
to any instructions from BendTec. Further, the turbine piping was integrally
incorporated into the turbine which is itself an improvement to the real property at
Merrimack Station. On balance, the category of "ordinary building materials" is a
better fit for the turbine piping.

       We also note that the statute of limitations explicitly covers "any person . . .
furnishing . . . materials" for improvements to real property. Minn. Stat. § 541.051,
subd. 1(a); see Integrity Floorcovering, 521 F.3d at 920 n.6 (noting that the scope of
this provision is broad). Because the new Siemens turbine is an improvement to real
property, Harder, 179 F.3d at 612, and BendTec was a supplier of materials for the
turbine under its subcontract, the subdivision 1(a) provision of the statute

                                         -8-
unambiguously covers BendTec. Applying the subdivision 1(e) exception is more
difficult because the turbine piping has characteristics of both ordinary building
materials and equipment or machinery. Cf. Integrity Floorcovering, 521 F.3d at
919–20. The question in this case is not whether the entire turbine qualifies as
machinery or equipment, and thus whether its manufacturer (Siemens) is covered by
the subdivision 1(e) exception. Rather, the question here is whether the "materials"
BendTec furnished for the turbine are themselves "equipment or machinery." Minn.
Stat. § 541.051, subd. 1(a), 1(e). Under the "common-sense" approach used when
analyzing this statute, see Lietz, 718 N.W.2d at 869, Minnesota courts would likely
conclude that the stationary turbine piping, neither electrical nor electronic in nature
with no function outside of being incorporated into the turbine, is not equipment or
machinery. See Red Wing, 552 N.W.2d at 297 (concluding that pipes in a motel
sprinkler system were ordinary building materials, not machinery or equipment). We
therefore conclude that the plaintiffs have not met their burden to show that BendTec
falls into the subdivision 1(e) exception. Integrity Floorcovering, 521 F.3d at 921.

      Because the two year statute of limitations in Minn. Stat. § 541.051 applies and
the subdivision 1(e) exception does not, and plaintiffs did not file this lawsuit within
the limitations period, the district court correctly granted summary judgment to
BendTec.

                                          III.

      For these reasons the judgment of the district court is affirmed.
                      ______________________________




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