1 Plaintiffs are liquidating trustees for the benefit of the John D. and Catherine T. MacArthur

Foundation, which owns the building.

2 Tex.Civ.Prac. & Rem.Code Ann. § 16.008(a) (Vernon 1986) provides, "A person must bring

suit for damages for a claim ... against a registered or licensed architect or engineer ... who

designs, plans, or inspects the construction of an improvement to real property or equipment

attached to real property, not later than 10 years after the substantial completion of the

improvement."

3 Tex.Civ.Prac. & Rem.Code Ann. § 16.009(a) (Vernon 1986) provides a similar ten-year limit

"for a claim ... against a person who constructs or repairs an improvement to real property ... in

an action arising out of a defective or unsafe condition of the real property or a deficiency in the

construction ... of the improvement." United States Court of Appeals,

Fifth Circuit.

No. 92-1540.

John E. CORBALLY, James Furman, and Philip Grace, Liquidating Trustees, PlaintiffsAppellants,

v.

W.R. GRACE & CO., Defendant-Appellee.

June 18, 1993.

Appeal from the United States District Court for the Northern District of Texas.

Before THORNBERRY, JOLLY and DAVIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

When asbestos was discovered in 1989 in an office building, Plaint iffs decided to have it

removed. 1 To recover the high cost of remo ving the asbestos-containing material, Plaintiffs sued

W.R. Grace & Co.-Conn., successor of the Zonolite Company. Zonolite manufactured

asbestos-containing fireproofing material (ACM) called ZAP (Zonolite Acoustical Plastic) that was

installed in the building during its construction in the late fifties.

On Grace's motion for summary judgment, the trial court dismissed Plaint iffs' claims as barred

by one of two Texas statutes of repose. The two statutes bar assertion of claims against architects

and enginee rs who design the construction of improvements to real property 2 and against persons

who construct or repair improvements to real property 3 after ten years of substantial completion ofthe improvement. Finding neither of the statutes applicable, we reverse and remand.

I.

The facts about Zonolite's product, ZAP, are no t disputed. Zonolite factory-mixed a dry

product of asbestos, vermiculite, and other substances, packaged it in bags, and shipped it to dealers

for resale. At the job site a plastering subco nt ractor mixed the product with water according to a

formula described in the manufacturer's instructions. This slurry which resulted from the mixture of

the ZAP with water was spra y-applied to the structure by the plastering contractor. Zonolite

advertised the ACM as a fireproofing treatment to be sprayed to the underside of steel floors; in t his

case, the product was applied to a steel roof deck assembly.

We are guided primarily

by t hree cases which shed light on the meaning of the phrase

"improvement to real property " in the statutes of repose: D edmon v. Stew art-Warner Corp., 950

F.2d 244 (5th Cir.1992), Barnes v. Westingho use Electric Corp., 962 F.2d 513 (5th Cir.), cert.

denied,

--- U.S.

----, 113 S.Ct. 600, 121 L.Ed.2d 536 (1992), and Con kle v. Builders Concrete

Products Manufacturing Co., 749 S.W.2d 489 (Tex.1988).

The district court correctly began its analysis by considering whether the ZAP resulted in a

betterment to the freehold. As we stated in Barnes, "[a]n improvement can be anything that

perm anent ly enhances the value of the premises, and it can even be something easily removable

provided that it is attached and intended to remain permanently as part of the building." B arnes, 962

F.2d at 517; see also Dedmon, 950 F.2d at 247.

As noted in Dedmon, however, even if the ZAP became a betterment to the freehold, the

inquiry into application of the statutes does not stop there. In C onkle v. Builders Concrete Products

Manufacturing Co., the Texas Supreme Court narrowed the application of § 16.009 by distinguishing

a "component p art" of an improvement from an "improvement" and by denying repose to

component-part manufacturers. See D edmon, 950 F.2d at 247 (citing Conkle, 749 S.W.2d at 491);

see also Barnes, 962 F.2d at 517.

The Dedmon panel recognized t hat the "improvement versus component part" distinction

would be difficult to apply but nevertheless was bound by Texas jurisprude nce on the subj ect.Dedmon, 950 F.2d at 248. Dedmon notes that if the product involved is an "improvement" within

the meaning of the statute, then under Texas jurisprudence the statute of repose applies even if the

defendant who con st ruct ed it is an off-site manufacturer. D edmon, 950 F.2d at 247. D edmon

observed that Conkle preserved an off-site manufacturer's repose, but only if the manufacturer

"constructs the entire improvement and not a component part of it." Dedmon, 950 F.2d at 248.

In Conkle the defendant manufactured bins and hoppers whi ch were part of a portable

concrete batch plant. Testimony that the bin and hopper manufacturer had not manufactured "the

entire structure" left a fact issue whether the defendant manufactured "an entire unit or component

parts only." C

onkle, 749 S.W.2d at 491 (emphasis added). Conkle contrasted the bin and hopper

manufacturer with the manufacturer of an "entire elevator unit" located in the building in which it was

installed. C

onk le, 749 S.W.2d at 491 (citing E llerbe v. Otis Elevator Co., 618 S.W.2d 870

(Tex.Civ.App.—Houston [1st Dist.] 1981, writ ref'd n.r.e.), appeal dism'd, 459 U.S. 802, 103 S.Ct.

24, 74 L.Ed.2d 39 (1982)). Thus there was a fact issue whether the manufacturer constructed "an

improvement to real property." Id.

Although the test distinguishing a component part from an improvement may be difficult to

fashion in the abstract, we have no difficulty in light of Dedmon and Conkle in holding that the bag

of chemicals Grace's predecessor provided is a component part and not an improvement. First of all,

we could not classify ZAP as an "entire unit" by any stretch of the imagination. Before becoming part

of any "unit," the ZAP had to change forms, in that it must be mixed with water and spray-applied

by a contractor. Thus when Zonolite delivered its product, the ZAP was still several steps removed

from becoming an improvement or betterment to the freehold of any real property.

We need not decide whether the slurry obtained when the ZAP was mixed with water is an

"improvement." But considering that Texas jurisprudence requires us to distinguish component parts

from improvements, certainly neither the mixed product in the bag nor the water it was mixed with

could be characterized as anything more than a component part of an improvement.

Additionally, ZAP was unstructured material, bagged, and sold as powder. C onkle would not

classify a product built off-site as an "improvement" because it was unclear whether the manufacturer4 The district court erroneously relied upon Trust Co. Bank v. United States Gypsum Co., 950

F.2d 1144 (5th Cir.1992), which interpreted a Mississippi statute of repose. See Trust Co. Bank,

950 F.2d at 1152. Under Mississippi jurisprudence the phrase " "improvement to real property'

covers a wide range of structures and/or components. " Smith v. Fluor Corp., 514 So.2d 1227,

1230 (Miss.1987) (emphasis added). We are Erie bound by Texas jurisprudence, which excepts

from the protection of the statutes of repose component parts of improvements to real property. had built an "entire unit" or "entire structure." N o structure was manufactured by Grace' s

predecessor. Never has a Texas court 4 considered an unstructured product like ZAP which was to

be mixed up and applied to a building an "improvement to real property." "Texas courts have

interpreted the statute to cover some manufacturers of improvements to real property so long as the

manufacturing process amounts to the construction of the improvement. " D edmon, 950 F.2d at 246

(emphasis added).

Grace argues that the mere fact that the product arrived at the job site in bags and required

further mixing does not remove the product from the "improvement" classification to the "component

part" classification, citing Dallas Market Center Development Co. v. Beran & Shelmire, 824 S.W.2d

218 (Tex.App.—Dallas 1991, writ denied). Grace suggests that an exterior masonry wall at issue in

Dallas Market previously consisted of bricks and m ortar, which had probably been delivered in bags.

Our review of the Dallas Market case reveals t hat the claimed improvement was the wall itself,

constructed by a masonry contractor. Id. at 219-20. There was no claim that the manufacturer of

unstructured building material such as mortar had co nstructed an improvement rather than a

component part.

No "construction of an improvement to real property " occurred till the subcontractor mixed

and spray-applied Zonolite's product onto the building, which is the improvement to real property in

this case. At most, Zonolite manufactured a product which later became part of an improvement.

Conkle has carved out a clear exception for "component parts" of an improvement. We therefore

ho ld t hat as a matter of law Zonolite did not construct any "improvement to real property" no r

"design the construction o f an improvement" within the meaning of § 16.008 or § 16.009.

Accordingly

, the statutes of repose do not protect Grace.

II.Our disagreement with the d ist rict court on this fundamental question whether Defendant

"constructed an improvement" makes consideration of many other questions m oot. We do not reach

Plaintiffs' alternative argument that they at least raised a fact issue regarding the component nature

of the product. In this instance there has been no evidence from which a reasonable jury could find

that ZAP was an improvement to real property rather than a component part or building material.

We need not reexamine the troubling question whether the statutes woul d apply to a

materialmen if he could "construct an improvement," because in this case the manufacturer did not.

Nor need we reach the question whether § 16.008 applies to a company that merely employs

an engineer t o design a product, if the company is not in the business of providing engineering

services. Zonolite's employment of engineers to design the ACM could not bring § 16.008 into play

because the statute requires more than the design of a product to be used as building material or a

component part of an improvement. Section 16.008 grants repose to the engineer who "design t he

construction of the improvement. " As noted above, Zonolite did not design the construction of "an

improvement."

Because § 16.009 does not apply, we do not examine the que st ion whether the statute is

further inapplicable because of one or more exceptions in § 16.009(e)(3). Because neither statute

applies, we do not address Plaint iffs' concern that the statutes are unconstitutional as applied. Finally,

the question whether the assessment of costs of depositions against Plaint iffs was error is also m oot.

Costs will be reassessed at the conclusion of this litigation.

III.

Zonolite did not "construct" or "design[ ] the construction of" "an improvement." Rather, it

manufactured an unstructured product that can be classified only as a component part, which is not

within the protecti o n o f t he Texas statutes of repose. Summary judgment in favor of the

manufacturer's successor is therefore reversed and the matter is remanded.

REVERSED and REMANDED.