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,1 The ver sion 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 “pree mpted”

throughout the provision.

2 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 App ellees, 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”) at2 Louisiana Civil Code Arti c le 466 defines things that are

permanently attached to an immovable as things that “cannot be

removed without substantia l damage to themselves or to the

immovab le to which they are attached.” L A

. C IV

. C ODE 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 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 perman ently 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 fabricat ed elsewhere by DefendantsAppellees 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 sued 3 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's4 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 ten year peremptive period for actions involving design and/or

construction of immovables or improvements to immovables had run.

See L A R EV

. S TAT

. § 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 ul timate 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 party5

opposing the motion. S ee 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); a ccord 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 constructio n 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....

L A R EV

. S TAT

. § 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 “an5 This case involves the classification of a man-made

construction. Not all impro vements 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 “i mprovements,” 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 i mprovement 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 L A

. C IV

. C O DE 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

improvement s. 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....” S ee L A

. C IV

. C ODE art.

493 (1984), L A

. C IV

. C ODE art. 2367.1 (1990). Similarly, Civil Code

Article 497 deali ng 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.” L A

. C IV

. C ODE art. 497 (1979).7

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 m aterials 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, sepa rable 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....8

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 a nd alterations” made by a

usufructuary suggests a difference between “improvements” and

“al terations” that at least permits an inference that

“improvements” are somehow more subs t antially attached to the

ground than are mere “alterations” to property. See L A

. C IV

. C ODE

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 usuf ruct. See L A

. C IV

. C ODE art. 601

(1977), L A

. C IV

. C ODE 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. S ee 1976 La.

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

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

inseparable; and (2) the improvements must be m ade in accordance9

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 construct ion 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 c onclusion 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.” I d. at 545-46.

Similarly, in D ugas 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 b uilding and attached with bolts” and that would

have to be disassembled and taken out in pieces to be removed was10

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

Although these three cases do not con stitute 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 “a n 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 Lu mmus and Zachry are perempted under Louisiana Revised

Statute Section 9:2772.