Slaying the Jurisprudential Beast: Virginia's Flawed Multi-Factor Approach to Differentiating Ordinary Building Materials from Equipment and Machinery under Code Sec. 8.01-250

Virginia Code section 8.01-250 voids all claims against design professionals, contractors, subcontractors, and suppliers arising out of defective improvements to real property when not brought within five years of the incorporation of that improvement. However, manufacturers and suppliers of ill-defined "equipment" and "machinery" are exempted from the statute's protection. Given the relatively short statute of repose for improvements to real property in the Virginia Code, the threshold question of whether something is "equipment" or "machinery" has been a central issue in many tort cases before the Virginia courts.Through a line of cases originating with the Supreme Court of Virginia's 1985 decision in Cape Henry Towers, Inc. v. National Gypsum Co., Virginia courts have assembled a multi-factor test to distinguish the term of art, "ordinary building materials," from "equipment" or "machinery." This Comment argues that this sprawling and continuously growing factor-based approach, in which no one factor is controlling, is overly cumbersome and nebulous. It leads to inconsistent applications and results that offend modern ideals of advancement and technology.To combat such an unworkable approach, this Comment proposes a two-fold alteration-called the "classified common-sense approach"-to replace the current jurisprudence. Within this approach, the Virginia legislature would first supplement section 8.01-250 with an amendment or guiding document that classifies real property into broad groups, i.e., manufacturing structures, warehouse facilities, single family dwellings, high-rise domiciles, etc. Second, the proposed approach requires that within the legislatively-established classification system of improvements to real property, the courts would apply common-sense notions of "ordinary building materials" and "equipment" rather than the current multi-factor analysis. This construction of Virginia's statute of repose offers more guidance and a simpler application than the current test, and recognizes increasing technical advances in building technology."In extraordinary times, the ordinary takes on a glow and wonder all of its own."1INTRODUCTIONConstruction spending in the United States totaled $816 billion in 2010.2 Of that figure, public construction spending accounted for approximately $307 billion, private nonresidential spending for approximately $267 billion, and private residential spending for approximately $242 billion.3 In 2012, the Commonwealth of Virginia issued 26,700 building permits for both single and multi-family dwellings.4 As of March 2013, the number of building permits issued in Virginia was four percent higher than the number issued by that same time in 2012.5 These statistics demonstrate that despite the recent economic downturn,6 there remains plenty of traffic,7 and thus plenty of potential liability, within the marketplace for improvements to real property.8The statute of repose delineated in Virginia Code section 8.01-250 nullifies all claims against design professionals, contractors, subcontractors, and suppliers arising out of defective or unsafe improvements to real property if the claim is not brought within five years of the incorporation of that improvement.9 This exception, added in 1973 to counteract what the Virginia General Assembly saw as an undesirable result of Wiggins v. Proctor & Schwartz, Inc.,10 eliminates manufacturers or suppliers of "equipment" and "machinery" from the statute's protection.11 Although the amended statute explicitly excludes "equipment" and "machinery" from its protection, it fails to specify what qualifies as "equipment" or "machinery."12 The applicability of the statute of repose is thus contingent upon what is included in the categories of "equipment" and "machinery." Subsequent judicial discussion of this provision and exception has thus been largely definitional.13Through a series of cases beginning with the Supreme Court of Virginia's 1985 decision in Cape Henry Towers, Inc. …