PRESENT: All the Justices 

HOPE T. LUEBBERS, ADMINISTRATRIX 

 OF THE ESTATE OF 

 DENNIS GERARD LUEBBERS, DECEASED 

 OPINION BY 

v. Record No. 971039 JUSTICE LAWRENCE L. KOONTZ, JR. 

 February 27, 1998 

FORT WAYNE PLASTICS, INC., 

 D/B/A FORT WAYNE POOLS, INC., 

 ET AL. 

FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG 

Oliver A. Pollard, Jr., Judge 

 The issue we consider in this appeal is whether certain 

items used in the construction of a swimming pool are ordinary 

building materials rather than “equipment” within the meaning of 

Code § 8.01-250, a statute of repose. 

 The essential facts are not in dispute. Fort Wayne 

Plastics, Inc., doing business as Fort Wayne Pools, Inc. (Fort 

Wayne), was a manufacturer of various structural component 

materials for in-ground swimming pools. These items included 

steel panels, braces, and vinyl liners used in conjunction with 

aluminum coping, for which Fort Wayne was a distributor, to form 

the walls and bottoms of the pools.1

 1

In general terms, individual steel panels are bolted 

together to produce the form for the walls in the desired 

dimensions and perimeter shape of a particular pool. Vinyl 

liners of the same dimensions are shaped to form an inner lining 

for this form. The coping acts as a receptor on the top of the 

steel pool walls into which the liner is snapped to create a 

watertight structure. 
 Prestige Industries, Inc. (Prestige) was a distributor of 

swimming pool kits and related materials. Prestige purchased in 

bulk steel panels, braces, and vinyl liners from Fort Wayne and 

held them in its warehouse until it resold them as parts of pool 

kits to local swimming pool contractors or individuals. 

Prestige also ordered in bulk specification guides and 

installation manuals produced by Fort Wayne that described the 

proper use of its materials in the construction process. In 

addition, Prestige purchased other items to be used in the 

construction of swimming pools, such as fitters, pumps, diving 

boards, and pool slides, from other sources. 

 In mid-1985, Prestige received an order for the component 

materials necessary for the construction of a 16 1⁄2 foot x 35 1⁄2 

foot “Grecian style” in-ground swimming pool from Crystal Pools 

of Petersburg,2 a swimming pool retail and construction company. 

Prestige supplied materials, including the steel panels, braces, 

and a vinyl liner manufactured by Fort Wayne, that were 

ultimately incorporated into the swimming pool in question at a 

private residence. Prestige also provided Crystal Pools with a 

custom specification sheet that it had developed in order to 

 2

Crystal Pools of Petersburg is the trade name of the 

unincorporated business of Bea L. and Richard W. Fitzke. The 

Fitzkes also operate under the name of Fitzke & Sons. These 

defendants will be referred to collectively in this opinion as 

“Crystal Pools.” 

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accommodate design modifications or requested changes by the 

homeowner. Although it contained specifications similar to 

those found in Fort Wayne’s publications, this specification 

sheet was designed expressly for the construction of this pool. 

In addition to the materials manufactured by Fort Wayne, Crystal 

Pools purchased through Prestige the vermiculite material for 

the pool bottom, pumps, filters, hydrotherapy equipment, steps, 

and main drains necessary to construct the finished swimming 

pool in conformity with the specifications and requirements of 

the homeowner. 

 Thereafter, sometime in early 1986, Crystal Pools completed 

the construction of the swimming pool. On June 12, 1994, Dennis 

Gerard Luebbers was a guest at the home of Kathryn E. Hedrick 

where Crystal Pools had constructed this pool. On that day, 

Dennis Luebbers died as a result of an accident that occurred 

while he was swimming in her pool.3 

 On November 6, 1995, Hope T. Luebbers, administratrix of 

Dennis Luebbers’ estate, filed suit against Fort Wayne, 

Prestige, Crystal Pools, and Hedrick. Relevant to this appeal, 

the suit charged that the liability of Fort Wayne and Crystal 

 3

Hedrick was not the homeowner when the pool in question was 

constructed. However, she was the homeowner at the time of the 

death of Dennis Luebbers, and she is a party defendant in the 

underlying suit in this case. She is not a party to this 

appeal. 

3
Pools arose from the negligent design, manufacture, and 

installation of the component parts incorporated into the 

finished swimming pool. Fort Wayne and Crystal Pools filed 

affirmative pleas in bar asserting that the five-year limitation 

provided by Code § 8.01-250 barred the plaintiff’s cause of 

action. The trial court sustained the pleas and granted summary 

judgment for Fort Wayne and Crystal Pools, finding that the 

materials manufactured by Fort Wayne and used in the 

construction of the pool by Crystal Pools were not “equipment” 

within the meaning of Code § 8.01-250. We awarded plaintiff 

this appeal.4

 In pertinent part, Code § 8.01-250 provides: 

 No action to recover for . . . wrongful death, 

arising out of the defective and unsafe condition of 

an improvement to real property . . . shall be brought 

against any person performing or furnishing the 

design, planning, surveying, supervision of 

construction, or construction of such improvement to 

real property more than five years after the 

performance of furnishing of such service and 

construction. 

 The limitation prescribed in this section shall 

not apply to the manufacturer or supplier of any 

equipment or machinery or other articles installed in 

a structure upon real property . . .; rather each such 

action shall be brought within the time next after 

such injury occurs as provided in §§ 8.01-243 and 

8.01-246. 

 There is no dispute that the swimming pool in question 

constitutes “an improvement to real property” contemplated by 

 4

Prestige is not a party to this appeal. 

4
this statute. Additionally, there is no dispute that 

plaintiff’s suit was filed more than five years after the 

construction of this pool was completed. Accordingly, the focus 

of our analysis is on the exclusion provided by the second 

paragraph of this statute. 

 We have previously addressed the application of Code § 

8.01-250 in Cape Henry Towers, Inc. v. National Gypsum Co., 229 

Va. 596, 331 S.E.2d 476 (1985). There, we held that this 

statute applies to “those who furnish ordinary building 

materials, which are incorporated into construction work outside 

the control of their manufacturers or suppliers.” Id. at 602, 

331 S.E.2d at 480. With regard to the application of the 

exclusion provided by the second paragraph of the statute, we 

reasoned that equipment is distinguished from ordinary building 

materials on the ground that “[u]nlike ordinary building 

materials, . . . equipment [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.

 In Cape Henry Towers, we held that exterior wall panels 

used in the construction of condominium units were ordinary 

building materials and not equipment within the meaning of Code 

§ 8.01-250. Id. Following that case, we held in Grice v. 

5
Hungerford Mechanical Corp., 236 Va. 305, 374 S.E.2d 17 (1988), 

that an electrical panel box and its component parts received 

from the manufacturer without instructions for their use and 

installation were ordinary building materials and not equipment 

within the meaning of this statute. Id. at 308-09, 374 S.E.2d 

at 18-19. 

 In the present case, plaintiff contends that the 

prefabricated structural component materials manufactured by 

Fort Wayne and installed by Crystal Pools to construct the 

finished swimming pool were not ordinary building materials, 

but, rather, were “equipment” within the meaning of Code § 8.01-

250.5 Plaintiff contends that this is so because these materials 

were subject to close quality control at Fort Wayne’s factory 

and to post-manufacture control of their installation through 

the manufacturer’s specifications and installation manuals. We 

disagree. 

 In the present case, the steel panels, braces, and vinyl 

liners manufactured by Fort Wayne are interchangeable in the 

swimming pool construction industry with component materials 

made by other manufacturers. Such materials are purchased by 

distributors in bulk to be used in the construction of swimming 

 5

For purposes of this appeal, the term “equipment” 

encompasses the phrase “equipment or machinery or other 

articles” contained in § 8.01-250. 

6
pools according to the dimensions and shapes desired by 

particular customers. Fort Wayne exercises no oversight over 

the construction of the pools. Fort Wayne merely warrants that 

its steel panels will be free from defects of workmanship and 

that its vinyl liners will be free from defective welding. Fort 

Wayne sells the specification guides and installation manuals as 

general guides for the construction of generic vinyl pools. 

Moreover, these manuals did not address the construction of a 

pool with the particular dimensions and shape of the one 

involved in the present case. 

 Here, as in Cape Henry Towers, the materials manufactured 

by Fort Wayne and incorporated into the finished swimming pool 

by Crystal Pools were clearly fungible components of that pool. 

Individually, these items served no function other than as 

generic materials to be included in the larger whole and are 

indistinguishable, in this context, from the wall panels we 

addressed in Cape Henry Towers. As such, these materials were 

ordinary building materials and not “equipment” within the 

meaning of Code § 8.01-250. Consequently, because these 

materials were manufactured and installed in an improvement to 

real property more than five years before the plaintiff filed 

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suit for Dennis Luebbers’ death, these defendants are entitled 

to the protection of this statute.6

 For these reasons, we will affirm the order of the trial 

court granting summary judgment for Fort Wayne and Crystal 

Pools. 

Affirmed. 

 6

Because we conclude that the materials in question were 

ordinary building materials and not equipment within the meaning 

of Code § 8.01-250, we need not address plaintiff’s contention 

that the trial court further erred in finding that Crystal Pools 

was not a “supplier” of the materials. See Eagles Court 

Condominium v. Heatilator, Inc., 239 Va. 325, 329, 389 S.E.2d 

304, 306 (1990)(holding that even the installer of machinery or 

equipment is entitled to the protection of the first sentence of 

Code § 8.01-250). 

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