PRESENT: Koontz, Kinser, Lemons, Goodwyn, Millette, and Mims, 

JJ., and Russell, S.J. 

ROYAL INDEMNITY COMPANY, AS 

SUBROGEE OF FIRST CENTRUM, LLC 

AND CENTRUM PRINCE WILLIAM, LP, ET AL. 

v. Record No. 091993 

TYCO FIRE PRODUCTS, LP 

 OPINION BY 

 JUSTICE LEROY F. MILLETTE, JR. 

 JANUARY 13, 2011 

ROYAL INDEMNITY COMPANY, AS 

SUBROGEE OF FIRST CENTRUM, LLC 

AND CENTRUM PRINCE WILLIAM, LP, ET AL. 

v. Record No. 092567 

SIMPLEXGRINNELL, LP 

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY 

Craig D. Johnston, Judge1

 In this product liability case, we address issues 

concerning the statute of repose and breach of warranty. We 

conclude that exterior sidewall sprinkler heads are “equipment” 

under Code § 8.01-250 and reverse the judgment of the circuit 

court that the sprinkler heads are ordinary building materials. 

We also hold that a manufacturer’s description of how a 

sprinkler head functions does not constitute an express 

warranty of future performance. 

 1

 Judge Rossie D. Alston, Jr. ruled on the defendants’ 

pleas in bar regarding the statute of repose prior to joining 

the Court of Appeals. Judge Craig D. Johnston ruled on the 

defendants’ pleas in bar regarding the statute of limitations 

as to the warranty claims. 
BACKGROUND

 This case arose out of a fire that started on the exterior 

balcony of an apartment building on February 8, 2003. Two 

exterior sidewall sprinkler heads installed on two separate 

balconies where the fire originated failed to activate, which 

allowed the fire to spread to other parts of the building and 

adjoining buildings causing substantial damage. 

Royal Indemnity Company and American Empire Surplus Lines 

Insurance Company (together, Royal) filed an amended motion for 

judgment in the amount of $10,317,083.78 against Tyco Fire 

Products (Tyco) and SimplexGrinnell, LP (Simplex) alleging that 

the sprinkler heads, which were manufactured by Tyco and 

installed by Simplex prior to June 1997, failed to properly 

activate causing substantial damage to the apartment complex.2 

Royal asserted various negligence-based causes of action 

against both Tyco and Simplex, including negligent design and 

manufacture of the sprinkler heads, and post-sale duty to warn. 

Royal also asserted warranty claims against both defendants, 

claiming that the defendants breached an alleged warranty of 

future performance. 

The parties’ stipulated facts described the sprinkler 

heads as follows: 

 2

 Royal, as the property insurer for the apartment complex, 

paid for the damage caused by the fire and is subrogated to the 

rights of the apartment complex owner. 

2
The model F960/Q46 sprinkler head is an 

automatic dry sprinkler of the frangible bulb type. 

This model contains a sprinkler secured to an 

extension nipple that has a seal at the inlet end to 

prevent water from entering the nipple until the 

sprinkler operates. The seal mechanism at the inlet 

end is comprised of a brass plug and O-ring. The Oring is fitted into a machined groove on the brass 

plug. The plug is attached to a yoke assembly. The 

yoke assembly sits upon a watertube. A guide tube 

assembly is fitted into the opposite end of the 

watertube. The bulb seat sits upon the guide tube 

assembly and the bulb sits upon the bulb seat and is 

secured in place by the compression screw. The 

compression screw is threaded into the frame. The 

frame is secured into one end of the outer pipe and 

the inlet is secured into the opposite end of the 

outer pipe. The inlet is machined with 1” NPT 

threads for mating the sprinkler head into a fire 

sprinkler system fitting. 

. . . . 

Under normal service conditions, the F960/Q46 

sprinkler head is intended to operate as follows. 

When the sprinkler is in service, water is prevented 

from entering the assembly by the Plug and O-ring 

seal in the inlet of the sprinkler. The glass bulb 

contains a fluid that expands when exposed to heat. 

When the rated temperature is reached, the fluid 

expands sufficiently to shatter the glass bulb, and 

the bulb seat is released. The compressed spring is 

then able to expand and push the water tube as well 

as the guide tube outward. This action 

simultaneously pulls outward on the yoke, withdrawing 

the plug and O-ring seal from the inlet allowing the 

sprinkler to activate and flow water. 

 In its complaint, Royal alleged that the sprinkler heads 

failed to operate properly. Specifically, Royal asserted that 

“[s]cientific inspection of the pressure tested sprinkler heads 

. . . determined that corrosion existed at the interface 

between the brass plug and O-ring assembly and inlet which 

3
. . . prevented the inlet plugs from disengaging and operating 

as intended upon the breaking of the frangible bulbs.” 

Tyco and Simplex filed pleas in bar asserting that the 

negligence-based causes of action were barred by the statute of 

repose, Code § 8.01-250. After an ore tenus hearing and 

receipt of stipulated evidence, the circuit court granted the 

defendants’ pleas in bar ruling that the sprinkler heads were 

ordinary building materials under the statute of repose. 

The defendants also filed pleas in bar arguing that 

Royal’s warranty claims were barred by the statute of 

limitations. After a hearing, the circuit court sustained the 

pleas in bar ruling the warranty claims were barred by the 

applicable statutes of limitations. We awarded Royal this 

appeal. 

DISCUSSION

 Royal assigns error to the circuit court’s judgment 

sustaining the defendants’ pleas in bar as to the negligencebased causes of action under the statute of repose, and as to 

the warranty claims under the applicable statutes of 

limitations. 

A. Statute of Repose 

 Royal argues that the circuit court erred in granting the 

defendants’ pleas in bar because it ruled that Royal’s 

negligence-based actions were barred by the five-year statute 

4
of repose, Code § 8.01-250. The statute provides, in pertinent 

part: 

No action to recover for any injury to property 

. . . 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 or furnishing of such services 

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 . . . . 

(Emphasis added). 

 Royal argues that the circuit court erred in concluding 

that the sprinkler heads are “ordinary building materials,” and 

therefore covered by the statute of repose. According to 

Royal, the sprinkler heads are “equipment” under the terms of 

the statute. To support this position, Royal cites various 

characteristics of the sprinkler heads that this Court has 

previously stated were indicative of “equipment” under Code 

§ 8.01-250. Specifically, Royal asserts that the sprinkler 

heads are finished products, fully assembled by the 

manufacturer, and individually packaged. Royal also contends 

that the sprinkler heads are not essential to the building, but 

are “an adjunct service to the building to protect it from 

fire.” Continuing, Royal argues that the sprinkler heads 

“perform[] a function other than being a part of the 

5
construction[,]” which distinguishes them from ordinary 

building materials. 

Focusing on our past decisions outlining the “ordinary 

building materials doctrine,” Royal concludes that our 

jurisprudence “make[s] it clear that ordinary building 

materials are generic in nature and are not separate and 

distinct mechanical operating products.” Royal asserts that 

the sprinkler heads are independent mechanical devices that 

have a specific function, and thus are clearly distinguishable 

from the items this Court has held to be ordinary building 

materials. Finally, Royal contends that the statute of repose 

was not intended to protect manufacturers, such as Tyco, who 

have the means to protect themselves by testing, engineering, 

quality control, and issuing warranties on their products. 

We agree with Royal that our prior case law supports the 

conclusion that the sprinkler heads are equipment under the 

statute of repose. In addressing whether certain items fall 

within the protection of the statute of repose, we have 

identified various characteristics of the items in 

question, which, in a specific case, led to the 

determination that the items were or were not 

ordinary building materials. Nevertheless, we have 

not held any single characteristic or set of 

characteristics as determinative of the issue. Each 

case has been and must be decided based on its own 

circumstances. 

Jamerson v. Coleman-Adams Construction, Inc., 280 Va. 490, 496, 

699 S.E.2d 197, 199 (2010). In considering this issue, we view 

6
the facts in the light most favorable to the party prevailing 

below, but review de novo the question whether the sprinkler 

heads are equipment under Code § 8.01-250. Id. at 496, 699 

S.E.2d at 200; Caplan v. Bogard, 264 Va. 219, 225, 563 S.E.2d 

719, 722 (2002). 

We first addressed Code § 8.01-250 in Cape Henry Towers, 

Inc. v. National Gypsum Co., 229 Va. 596, 331 S.E.2d 476 

(1985). In interpreting the statute, we stated: 

We conclude that the General Assembly intended 

to perpetuate a distinction between, on one hand, 

those who furnish ordinary building materials, which 

are incorporated into construction work outside the 

control of their manufacturers or suppliers, at the 

direction of architects, designers, and contractors, 

and, on the other hand, those who furnish machinery 

or equipment. Unlike ordinary building materials, 

machinery and equipment are 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. 

Materialmen in the latter category have means of 

protecting themselves which are not available to the 

former. We construe § 8.01-250 to cover the former 

category and to exclude the latter. 

Id. at 602, 331 S.E.2d at 480. Applying this distinction 

between ordinary building materials and machinery and 

equipment, we held that exterior panels used in the 

construction of condominium buildings were ordinary building 

materials. Id.

 Next, in Grice v. Hungerford Mechanical Corp., we applied 

the same factors and analysis announced in Cape Henry Towers, 

7
holding that an electric panel box and its component parts were 

ordinary building materials. 236 Va. 305, 307-09 374 S.E.2d 

17, 17-19 (1988). In reaching this conclusion, we relied, in 

part, upon the fact that 

the quality and quantity of the component parts of an 

electrical panel box and the instructions for 

assembling, wiring, grounding, and installing the 

unit during construction of a particular building are 

determined by the plans and specifications provided 

by the architect or other design professional and 

[n]o instructions are received from the manufacturer. 

Id. at 309, 374 S.E.2d at 19 (internal quotation marks 

omitted). Thus, we held that an electrical panel box and its 

component parts – assembled on-site by the electrical 

subcontractor pursuant to the instructions by the architect or 

other design professional, and without direction from the 

manufacturer of the component parts – were ordinary building 

materials. 

 Ten years later, we addressed whether steel panels, 

braces, and vinyl liners used in construction of an in-ground 

swimming pool were ordinary building materials. Luebbers v. 

Fort Wayne Plastics, Inc., 255 Va. 368, 498 S.E.2d 911 (1998). 

In holding that these items were ordinary building materials, 

we reasoned that the component parts of the swimming pool were: 

interchangeable with parts made by other manufacturers; 

purchased in bulk from the manufacturer; and constructed and 

assembled without direction by the manufacturer. Id. at 373, 

8
498 S.E.2d at 913. Additionally, we noted that the 

manufacturer merely warranted that the materials were free from 

defects in workmanship and welding, and the installation 

manuals were merely “general guides.” Id. Most importantly, 

we stated that the “items served no function other than as 

generic materials to be included in the larger whole and are 

indistinguishable . . . from the wall panels . . . in Cape 

Henry Towers.” Id.

 Next, in Cooper Industries, Inc. v. Melendez, 260 Va. 578, 

537 S.E.2d 580 (2000), we concluded that an industrial 

switchgear and circuit breakers were equipment under the 

statute of repose. In reaching this decision, we observed that 

the “switchgear and circuit breakers were each self-contained 

and fully assembled by their respective manufacturers[,]” and 

that the circuit breakers had been tested by their 

manufacturer. Id. at 595, 537 S.E.2d at 590. Our decision was 

also based on the determination that the industrial switchgear 

and circuit breakers were not “essential to the existence of 

the piers” to which they were attached, but comprised the 

electrical system for submarines docked at the pier. Jamerson, 

280 Va. at 497, 699 S.E.2d at 200 (internal quotation marks 

omitted). 

 In Baker v. Poolservice Co., 272 Va. 677, 636 S.E.2d 360 

(2006), we addressed whether a drain cover installed in an 

9
outdoor spa was an ordinary building material. In concluding 

that the drain cover was an ordinary building material and not 

equipment, we noted that the drain cover was mass-produced, 

sold primarily to distributors, and once installed, became 

incorporated into the spa as a fungible component part. Id. at 

690, 636 S.E.2d at 368. 

 Most recently, in Jamerson, we were presented with the 

issue whether a steel platform and pole installed in a 

firehouse was an ordinary building material. In our analysis, 

we considered certain characteristics of the steel platform and 

pole that were utilized in our prior decisions in determining 

whether an item is an ordinary building material or equipment. 

Jamerson, 280 Va. at 496-98, 699 S.E.2d at 200-01. We 

concluded that the steel platform and pole were ordinary 

building materials based upon many factors discussed in our 

previous decisions. Specifically, we noted that: there was 

not an independent manufacturer’s warranty; the items were not 

subject to “close quality control” as discussed in Cape Henry 

Towers; the installation instructions were merely a guide; the 

items were a “means of access essential to and integrated into” 

the firehouse; and, finally, we noted that although the items 

were unique, this fact “does not per se preclude the item from 

characterization as an ordinary building material.” Id. at 

496-97, 699 S.E.2d at 200-01. 

10
 The various factors that were deemed indicative of 

ordinary building materials or equipment in the decisions 

discussed above support our decision that the sprinkler heads 

are equipment under Code § 8.01-250. The sprinkler heads are 

“fully assembled” by their manufacturer, and are “selfcontained” mechanical devices. Cooper, 260 Va. at 595, 537 

S.E.2d at 590. Additionally, the sprinkler heads are shipped 

in individual packages that contain a “technical data sheet,” 

which provides information about the product, including 

installation instructions. The sprinkler heads are independent 

mechanical devices that must be installed according to the 

manufacturer’s installation instructions to ensure that they 

will function properly. 

 The sprinkler heads are clearly distinguishable from the 

items at issue in our past decisions that we held were ordinary 

building materials. Sprinkler heads are not essential 

structural components of buildings or other structures, as 

distinguished from the exterior panels in Cape Henry Towers, 

the component parts of the in-ground pool in Luebbers, and the 

pool drain cover in Baker. Sprinkler heads are not used by 

builders, architects, or designers as a functional component in 

the construction of a building, as was the pole installed in 

Jamerson, which was incorporated into the firehouse to provide 

access within the building. 280 Va. at 493, 699 S.E.2d at 198. 

11
Rather, sprinkler heads are installed into a building’s 

sprinkler system to serve a purpose unrelated to the 

construction of the building. An engineered sprinkler head is 

a piece of fire protection equipment consisting of a discrete 

enclosed mechanism containing many parts, with installation 

instructions to be carried out by a professional installer to 

perform a specialized job. The sprinkler heads are not generic 

building materials from which a building may be constructed, 

but serve an adjunct function in the building – namely, 

protection from fire. 

As in this case, sprinkler heads are typically installed 

by a company that specializes in the design and installation of 

sprinkler systems. However, even if a builder installs the 

sprinkler heads, this fact does not transform the sprinkler 

heads into ordinary building materials, because in our analysis 

we examine the nature of the product’s characteristics. Id. at 

496, 699 S.E.2d at 199. So viewed, sprinkler heads are clearly 

the type of items that are “subject to close quality control at 

the factory and may be subject to independent manufacturer’s 

warranties.” Cape Henry Towers, 229 Va. at 602, 331 S.E.2d at 

480. In conclusion, our analysis shows that sprinkler heads 

are specially designed, self-contained mechanical devices that 

perform a specific function, and thus clearly fall within the 

meaning of “equipment” under Code § 8.01-250. 

12
 Because we conclude that sprinkler heads are equipment and 

not subject to the statute of repose, we must consider whether 

Simplex is a “manufacturer or supplier” of the sprinkler heads. 

Code § 8.01-250 exempts from its protection, “manufacturer[s 

and] supplier[s] of . . . equipment or machinery.” Simplex 

argues that it is neither a manufacturer nor a supplier of the 

sprinkler heads. Rather, Simplex contends that it is merely an 

installer of the sprinkler heads, and thus is entitled to the 

protection of Code § 8.01-250. We agree with Simplex on this 

issue. 

 The parties’ stipulated facts state that Simplex “did not 

design, manufacture or assemble any of the sprinkler heads it 

installed.” Thus, Simplex is not a “manufacturer” under the 

statute of repose. The parties agreed that Simplex “designed 

the automatic fire sprinkler system . . . and selected the 

components for the fire sprinkler system.” Merely purchasing 

the sprinkler heads and designing the sprinkler system does not 

make Simplex a “supplier” under Code § 8.01-250. To deem 

Simplex a “supplier” merely because it purchased the sprinkler 

heads would frustrate the purpose of Code § 8.01-250, which is 

to afford protection to parties who have no other means to 

shield themselves from potential liability. As we have said, 

manufacturers and suppliers of equipment and machinery have the 

ability to protect themselves by using close quality controls 

13
and making their products subject to warranties that are 

voidable if the equipment is not installed or used correctly. 

Cape Henry Towers, 229 Va. at 602, 331 S.E.2d at 480. 

Installers of equipment, such as Simplex, have no means to 

protect themselves from liability for defective products. 

Therefore, Simplex is not a “manufacturer or supplier” under 

Code § 8.01-250. 

 For the reasons stated, we will reverse the circuit 

court’s judgment sustaining Tyco’s plea in bar, and we will 

affirm the circuit court’s judgment sustaining Simplex’ plea in 

bar.3

B. Warranty Claims 

 The circuit court sustained both Tyco’s and Simplex’ pleas 

in bar as to the applicable statutes of limitations. The 

circuit court sustained Tyco’s plea in bar ruling that Royal’s 

breach of warranty cause of action was not filed within the 

four-year statute of limitations for sale of goods contracts 

per Code § 8.2-725. The court sustained Simplex’ plea in bar 

ruling that Royal’s warranty action was not filed within the 

 3

 Royal also assigned error to the circuit court’s ruling 

dismissing its claims against both defendants for post-sale 

duty to warn causes of action. However, the circuit court in 

granting the pleas in bar simply ruled that all of the 

negligence-based causes of action were barred by the statute of 

repose. Because Royal failed to present any argument to the 

circuit court regarding whether Virginia recognizes a post-sale 

duty to warn and the circuit court did not have an opportunity 

14
five-year statute of limitations for written contracts per Code 

§ 8.01-246. Royal assigns error to the circuit court’s ruling 

on both defendants’ pleas in bar. 

Regarding Tyco’s plea in bar, the circuit court ruled that 

the breach of warranty claims concerning the sprinkler heads 

were barred by the four-year statute of limitations per Code 

§ 8.2-725, which applies to contracts for the sale of goods. 

In making this ruling, the circuit court rejected Royal’s 

contention that the “technical data sheet,” which is the 

accompanying literature to the sprinkler heads, contained an 

express warranty of future performance. Royal argues that the 

circuit court erred in ruling that the “technical data sheet” 

did not contain an express warranty of future performance. We 

disagree with Royal. 

 Code § 8.2-725(1) provides that a breach of a contract for 

sale must be commenced within four years after the cause of 

action accrues. A cause of action for breach of a contract for 

the sale of goods accrues when the breach occurs. Code § 8.2-

725(2). In a contract for the sale of goods, the breach of 

warranty occurs when 

tender of delivery is made, except that where a 

warranty explicitly extends to future performance of 

the goods and discovery of the breach must await the 

time of such performance the cause of action accrues 

when the breach is or should have been discovered. 

 

to resolve that issue, we will not address this argument on 

appeal. Rule 5:25. 

15
Code § 8.2-725(2). 

 It is undisputed that Royal’s breach of warranty claim was 

filed more than four years after delivery of the sprinkler 

heads. Thus, the issue is whether there was an express 

warranty of future performance. Code § 8.2-313, titled 

“Express warranties by affirmation, promise, description, 

sample[,]” provides: 

(1) Express warranties by the seller are created as 

follows: 

(a) Any affirmation of fact or promise made by 

the seller to the buyer which relates to the 

goods and becomes part of the basis of the 

bargain creates an express warranty that the 

goods shall conform to the affirmation or 

promise. 

(b) Any description of the goods which is made 

part of the basis of the bargain creates an 

express warranty that the goods shall conform to 

the description. 

(c) Any sample or model which is made part of 

the basis of the bargain creates an express 

warranty that the whole of the goods shall 

conform to the sample or model. 

(2) It is not necessary to the creation of an 

express warranty that the seller use formal words 

such as “warrant” or “guarantee” or that he have a 

specific intention to make a warranty, but an 

affirmation merely of the value of the goods or a 

statement purporting to be merely the seller’s 

opinion or commendation of the goods does not create 

a warranty. 

16
 The “technical data sheet” contains a description of how 

the sprinkler heads work. The description, which Royal asserts 

is a warranty of future performance, states: 

When the F960/Q-46 is in service, water is prevented 

from entering the assembly by the Plug and O-Ring 

Seal in the Inlet of the Sprinkler. Upon exposure to 

a temperature sufficient to operate the Bulb, the 

Bulb shatters and the Bulb Seat is released. The 

compressed Spring is then able to expand and push the 

Water Tube as well as the Guide Tube outward. This 

action simultaneously pulls outward on the Yoke, 

withdrawing the Plug and O-Ring Seal from the Inlet 

and initiating water flow. 

 There is no evidence in the record showing that this 

language became “part of the basis of the bargain” such that it 

may be an express warranty of future performance. Indeed, the 

language amounts to nothing more than a simple description of 

how the sprinkler heads operate. Nowhere in the description of 

how the sprinkler heads work does Tyco promise that the 

sprinkler heads will operate correctly for a particular period 

of time. Manufacturers of products often provide such 

information, especially when the products are mechanical 

devices. To hold that such language amounts to an express 

warranty of future performance would result in Tyco insuring 

its sprinkler heads indefinitely. It would be an absurd result 

to conclude that a description given by a manufacturer as to 

how a device operates amounts to an express warranty of future 

performance for an unlimited duration. 

17
Additionally, the “technical data sheet” explicitly 

provided a one-year warranty that the sprinkler head shall be 

“free from defects in material and workmanship.” The warranty 

language is under the heading “WARRANTY” in the “technical data 

sheet.” If Tyco wished to provide any further warranty, surely 

it would have put additional language under this section. 

Considering the explicit one-year warranty contained in the 

“technical data sheet,” the product description cannot be said 

to constitute an express warranty of future performance for an 

indefinite period of time. For these reasons, we hold that the 

circuit court did not err in sustaining Tyco’s plea in bar. 

Regarding the circuit court’s ruling on Simplex’ plea in 

bar, Royal argues that the court erred by dismissing the 

“warranty cause of action on the grounds that the statements 

concerning [the sprinkler heads’] future performance under the 

Virginia Uniform Commercial Code did not constitute a warranty 

of future performance.” We cannot address this assignment of 

error because Royal alleges that the circuit court erred in 

making a ruling that it did not make. The circuit court did 

not sustain Simplex’ plea in bar on the ground that there was 

no warranty of future performance. In fact, the circuit court 

ruled that the Uniform Commercial Code did not apply to Royal’s 

warranty claim against Simplex because the underlying contract, 

which was “for the ‘design and installation of a fire 

18
protection system,’” was not a contract “predominately [for] 

the sale of goods.” Accordingly, we cannot address Royal’s 

argument that the circuit court erred in sustaining Simplex’ 

plea in bar. Rule 5:25. 

CONCLUSION

 In the appeal against Tyco, for the reasons stated, we 

will reverse in part, affirm in part, and remand this case to 

the circuit court. On remand, the circuit court shall address 

Royal’s negligence-based causes of action against Tyco. 

 In the appeal against Simplex, for the reasons stated, we 

will affirm the judgment of the circuit court. 

Record No. 091993 – Affirmed in part,

reversed in part,

 and remanded.

 Record No. 092567 – Affirmed.

JUSTICE MIMS, with whom JUSTICE GOODWYN joins, concurring in 

part. 

 While I join that part of the Court’s opinion addressing 

Royal’s warranty claims, I cannot join that part addressing the 

statute of repose. Regarding that issue, the majority has 

reached the correct conclusion that the extension sprinkler 

heads at issue are “equipment” for purposes of Code § 8.01-250. 

But because the majority opinion continues to apply the 

tortured, non-statutory “ordinary building materials” analysis, 

I merely concur with the result. 

19
 In my concurrence to Jamerson v. Coleman-Adams 

Construction, Inc., 280 Va. 490, 699 S.E.2d 197 (2010), I noted 

that the Court’s statute of repose jurisprudence is so 

confusing that we have been called upon to determine whether an 

object is an “ordinary building material” six times in 25 

years. Id. at 498, 699 S.E.2d at 201. This case marks the 

seventh time. Since the “ordinary building materials” analysis 

still is not clear and cannot be made clear, there undoubtedly 

will be more. 

20