By Meredith Renegar | 62 Am. U. L. Rev. 1737 (2013)
Virginia Code section 8.01-250 voids all claims against design professionals, contractors, subcontractors, and suppliers arising out of defective improvements to real property when not brought within five years of the incorporation of that improvement. However, manufacturers and suppliers of ill-defined “equipment” and “machinery” are exempted from the statute’s protection. Given the relatively short statute of repose for improvements to real property in the Virginia Code, the threshold question of whether something is “equipment” or “machinery” has been a central issue in many tort cases before the Virginia courts.
Through a line of cases originating with the Supreme Court of Virginia’s 1985 decision in Cape Henry Towers, Inc. v. National Gypsum Co., Virginia courts have assembled a multi-factor test to distinguish the term of art, “ordinary building materials,” from “equipment” or “machinery.” This Comment argues that this sprawling and continuously growing factor-based approach, in which no one factor is controlling, is overly cumbersome and nebulous. It leads to inconsistent applications and results that offend modern ideals of advancement and technology.
To combat such an unworkable approach, this Comment proposes a two-fold alteration—called the “classified common-sense approach”—to replace the current jurisprudence. Within this approach, the Virginia legislature would
first supplement section 8.01-250 with an amendment or guiding document that classifies real property into broad groups, i.e., manufacturing structures, warehouse facilities, single family dwellings, high-rise domiciles, etc. Second, the proposed approach requires that within the legislatively-established classification system of improvements to real property, the courts would apply common-sense notions of “ordinary building materials” and “equipment” rather than the current multi-factor analysis. This construction of Virginia’s statute of repose offers more guidance and a simpler application than the current test, and recognizes increasing technical advances in building technology.
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