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

APPEALED:

5TH CIRCUIT, U.S. COURT OF APPEALS

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.