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Coffman v. Armstrong International, Inc.

Court of Appeals of Tennessee, Knoxville

July 22, 2019

CAROLYN COFFMAN ET AL.
v.
ARMSTRONG INTERNATIONAL, INC. ET AL.

          Session February 20, 2019

         Nos. E2017-01985-COA-R3-CV (Ingersoll-Rand Company), E2017-02389-COA-R3-CV (Crane Co.), E2017-00062-COA-R3-CV (Fisher Controls Internationals LLC), E2017-00063-COA-R3-CV (Flowserve Corporation f/k/a/ Duriron Company), E2017-00064-COA-R3-CV (Daniel International Corporation), E2017-00065-COA-R3-CV (William Powell Company), E2017-00066-COA-R3-CV (Neles-Jamesbury, Inc. and Metso Automation USA Inc.), E2017-00067-COA-R3-CV (Armstrong International, Inc.), E2017-00069-COA-R3-CV (Clark Reliance Company, Jerguson Gage and Valve Division), E2017-00071-COA-R3-CV (Ingersoll-Rand Company), E2017-00075-COA-R3-CV (Crane Co.), E2017-00078-COA-R3-CV (DeZurik, Inc.), E2017-00995-COA-R3-CV (John Crane, Inc.)

          Appeal from the Circuit Court for Knox County No. 2-485-14 William T. Ailor, Judge

         This consolidated appeal arises from a product liability action brought by Donald Coffman and his wife, Carolyn Coffman, after Mr. Coffman was diagnosed with mesothelioma. Plaintiffs asserted several claims against multiple defendants for their alleged involvement in Mr. Coffman's exposure to asbestos at his workplace. The trial court dismissed their claims against some of the original defendants. The court granted summary judgment to the remaining defendants. Specifically, the court found that: (1) plaintiffs' claims against one defendant were time-barred by the four-year construction statute of repose set forth in Tenn. Code Ann. § 28-3-202 (2017); (2) plaintiffs' claims against three defendants were time-barred by the ten-year statute of repose set forth in Tenn. Code Ann. § 29-28-103 (2012); (3) ten defendants affirmatively negated their alleged duty to warn; and (4) plaintiffs presented insufficient evidence of causation with respect to seven defendants. The court denied plaintiffs' motion to alter or amend certain summary judgment orders. Plaintiffs filed separate notices of appeal for each final judgment entered by the trial court. These cases were consolidated for the purpose of oral argument before the Court of Appeals. For the reasons stated in this opinion, we vacate all of the final judgments entered by the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Vacated; Case Remanded

          H. Douglas Nichol, Knoxville, Tennessee, Donald Capparella, Nashville, Tennessee, and Charles E. Valles, Flower Mound, Texas, for the appellant, Carolyn Coffman, individually and for the benefit of the next of kin of Donald Coffman, Deceased.

          James E. Wagner, Knoxville, Tennessee, for the appellee, Ingersoll-Rand Company.

          James C. Bradshaw, III, Nashville, Tennessee, and Michael J. Ross and Nicholas P. Vari, Pittsburgh, Pennsylvania, for the appellee, Crane Company.

          Hugh B. Bright, Jr. and C. Gavin Shepherd, Knoxville, Tennessee, for the appellee, Fisher Controls International, LLC.

          Thomas A. Bickers, John W. Elder, Michael J. King, T. Mitchell Panter, and Adam R. Duggan, Knoxville, Tennessee, for the appellee, Flowserve Corporation f/k/a The Duriron Company, Inc.

          Michael J. King, T. Mitchell Panter, and Adam R. Duggan, Knoxville, Tennessee, for the appellee, Daniel International Corporation.

          Alan S. Zelkowitz and Scott D. Stephenson, Chicago, Illinois, and Joshua A. Wolfe, Knoxville, Tennessee, for the appellee, The William Powell Company.

          Jessalyn H. Zeigler, John W. Dawson, IV, and Sarah B. Miller, Nashville, Tennessee, for the appellees, Neles-Jamesbury, Inc. and Metso Automation USA, Inc.

          James A. Beakes, III and B. Hartman Knight, Nashville, Tennessee, for the appellee, Armstrong International, Inc.

          Michael J. King, T. Mitchell Panter, and Adam R. Duggan, Knoxville, Tennessee, for the appellee, Clark Reliance Company, Jerguson Gage and Valve Division.

          Michael J. King, T. Mitchell Panter, and Adam R. Duggan, Knoxville, Tennessee, for the appellee, DeZurik, Inc.

          Kent E. Krause, Nashville, Tennessee, for the appellee, John Crane, Inc.

          Charles D. Susano, Jr., J., delivered the opinion of the court, in which J. Steven Stafford, P.J., W.S., and Thomas R. Frierson, II, J., joined.

          OPINION

          CHARLES D. SUSANO, JR., JUDGE

         I.

         "Because summary judgment was awarded to the defendant[s], the following statement of facts is based upon the most favorable view of the record toward[ ] the plaintiff[s], the nonmoving part[ies]." Robinson v. Omer, 952 S.W.2d 423, 424-25 (Tenn. 1997) (citing Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993)).

         Mr. Coffman worked at the Tennessee Eastman chemical plant in Kingsport from 1968 until 1997. For most of his career, Mr. Coffman worked as a mechanic in and around "Building 55," where acid from other divisions was distilled, reclaimed, and refined. Mr. Coffman spent about seventy-five percent of his time in the "tank farm," an outdoor facility adjacent to Building 55 where most of the company's equipment was located.

         As a mechanic, Mr. Coffman was responsible for repairing and replacing various pieces of equipment, including pumps, valves, steam traps, and piping. The piping at Eastman carried steam and different types of acids. Because the acids were highly corrosive, it was necessary to repair equipment on a daily basis. Sometimes equipment would have to be entirely replaced.

         Plaintiffs claim that Mr. Coffman was exposed to asbestos in three ways. First, plaintiffs claim that Mr. Coffman breathed in dust created by the removal of asbestos-containing insulation manufactured by Johns-Manville Corporation. A vast majority of the equipment in the tank farm was insulated in order to prevent acid from freezing. Mr. Coffman had to remove this insulation in order to reach many of the pumps, valves, and pipes that he routinely repaired and replaced. Steam traps were not insulated, but it was sometimes necessary to remove insulation from a pipe that was adjacent to a steam trap. In order to remove the insulation, Mr. Coffman would use a hammer to "beat it back out of the way" in order to expose bolts and screws. After removing the bolts and screws, he would cut the wires off the insulation and tear it off the equipment. This created a visible dust that Mr. Coffman breathed many times. Mr. Coffman described the insulation as a "gray, whitish chalky material." He said that it did not itch like fiberglass insulation. It is undisputed that Johns-Manville manufactured asbestos-containing insulation.

         Mr. Coffman was also constantly in the presence of insulators who were engaged in the removal and installation of insulation in Building 55. Gary Frasier, who worked with Mr. Coffman from 1977 to 1982, testified that the insulation "wasn't yellow fiberglass." According to Mr. Frasier, there was a crew of two or three insulators in Building 55 every day. These insulators worked for independent contractors, including Daniel International Corporation (Daniel). The insulators did not rope off work areas or utilize plastic barriers until the mid-1980s. Their removal and installation of insulation created a visible dust that Mr. Coffman breathed on numerous occasions.

         Second, plaintiffs claim that Mr. Coffman breathed in dust created by the removal of asbestos-containing gaskets manufactured by Flexitallic, Garlock, and Johns-Manville. Gaskets are sealing mechanisms that are incorporated into equipment in order to prevent leaks. "Flange" gaskets are located between the external flanges of a piece of equipment and the pipe to which the equipment is connected; they are typically applied by the purchaser post-sale. "Bonnet" gaskets are located inside various pieces of equipment; an equipment manufacturer typically incorporates internal bonnet gaskets into the equipment pre-sale. According to Mr. Coffman, it was sometimes necessary to remove gaskets in order to repair a piece of equipment. Other times, gaskets had to be replaced because they were deteriorating and causing leaks. Normally, gaskets came off in pieces; parts of the gasket would stick to the metal equipment and had to be scraped off so that the residual gasket material would not cause future leaks. Mr. Coffman used a putty knife, a wire brush, or a "sheep nose" device to scrape off the residual gasket material. All three scraping methods created a visible dust that Mr. Coffman breathed many times.

         Third, plaintiffs claim that Mr. Coffman breathed in dust created by the removal of asbestos-containing packing manufactured by John Crane, Inc. (John Crane), A.W. Chesterton, Garlock, and Johns-Manville. Packing is a braided material that serves as a sealant. It is wrapped around the interior stem of valves. It is also used to hold fluids and steam inside pumps. According to Mr. Coffman, packing had to be replaced "constantly" because it "would be burnt up from being tightened too tight" or was "just wore plum out." This caused equipment to leak. Mr. Coffman used a "packing hook" to pull packing out of the packing gland of a pump. Packing would break into pieces during this process. When this happened, Mr. Coffman would continue using the packing hook to scrape the remaining packing out of the equipment. This created a visible dust that Mr. Coffman breathed many times. Mr. Coffman testified that none of the aforementioned equipment contained labels warning him about the dangers of asbestos exposure.

         After Mr. Coffman was diagnosed with mesothelioma, plaintiffs filed their complaint. Instead of suing the manufacturers of the asbestos-containing insulation and gaskets[2], plaintiffs sued: Daniel, an independent contractor whose insulators removed and installed asbestos-containing insulation at Eastman; John Crane, a manufacturer of asbestos-containing packing; and several manufacturers of industrial equipment: Armstrong International, Inc. (Armstrong) (steam traps), Crane Company (valves), DeZurik, Inc. (DeZurik) (valves), Flowserve Corporation f/k/a The Duriron Company, Inc. (Flowserve) (pumps and valves), Fisher Controls International, LLC (Fisher) (valves), Ingersoll-Rand Company (Ingersoll-Rand) (pumps), Neles-Jamesbury, Inc. and its subsidiary Metso Automation USA, Inc. (collectively, Jamesbury) (valves), Clark Reliance Company, Jerguson Gage and Valve Division (Jerguson) (valves), and The William Powell Company (Powell) (valves) (collectively, equipment defendants).[3] These equipment defendants purchased asbestos-containing gaskets and/or packing from other manufacturers and incorporated those asbestos components into some of their equipment pre-sale. They also sold asbestos-containing replacement gaskets and/or packing manufactured by others.

         All of the defendants filed motions for summary judgment. As an affirmative defense, Daniel argued that plaintiffs' claims were time-barred by the four-year construction statute of repose set forth in Tenn. Code Ann. § 28-3-202. Several other defendants argued that plaintiffs' claims were time-barred by the ten-year statute of repose set forth in Tenn. Code Ann. § 29-28-103. Additionally, the equipment defendants argued that they had affirmatively negated their alleged duty to warn. Several defendants also argued that plaintiffs' evidence was insufficient to establish causation.

         The trial court held two hearings on the defendants' motions for summary judgment. The court also held a third hearing to consider various motions to alter or amend. Ultimately, the court granted summary judgment to the defendants on all claims asserted against them. The court ruled that: (1) plaintiffs' claims against Daniel were time-barred by the four-year construction statute of repose; (2) plaintiffs' claims against Crane Company, Ingersoll-Rand, and Jamesbury were time-barred by the ten-year statute of repose; (3) the equipment defendants were entitled to summary judgment because they affirmatively negated their alleged duty to warn, which the court determined was an essential element of plaintiffs' negligence and strict liability claims; and (4) seven defendants - Armstrong, Crane Company, DeZurik, Fisher, Jamesbury, Jerguson, and John Crane - were entitled to summary judgment because plaintiffs presented insufficient evidence of causation, which the court determined was an essential element of plaintiffs' negligence and strict liability claims.

         As the trial court noted in some of its orders, plaintiffs' other claims failed because they are dependent on an initial finding of tortious conduct. See Williams v. U.S., 754 F.Supp.2d 942, 955 (W.D. Tenn. 2010) (citations omitted) ("A spouse seeking recovery for loss of consortium cannot recover unless the defendant has been held liable to the injured spouse."); Lynn v. City of Jackson, 63 S.W.3d 332, 335 (Tenn. 2001) ("[T]he Tennessee wrongful death statute preserves the action the decedent would have had, rather than creating a new cause of action in the surviving beneficiaries[.]"); Levy v. Franks, 159 S.W.3d 66, 82 (Tenn. Ct. App. 2004) ("In contrast [to criminal conspiracy], there is no liability under a theory of civil conspiracy unless there is underlying wrongful conduct."); Leatherwood v. Wadley, 121 S.W.3d 682, 693-94 (Tenn. Ct. App. 2003) (quoting Menuskin v. Williams, 145 F.3d 755, 766 (6th Cir. 1998)) ("To prevail on a claim of gross negligence in Tennessee, a plaintiff must [first] demonstrate ordinary negligence[.]"). The court determined that plaintiffs' negligence per se claims failed due to insufficient evidence of causation. See Rains v. Bend of the River, 124 S.W.3d 580, 590 (Tenn. Ct. App. 2003) (citations omitted).

         Plaintiffs appealed from the orders that the trial court certified as final pursuant to Tenn. R. Civ. P. 54.02. This Court consolidated those cases pursuant to Tenn. R. App. P. 16(b). We also consolidated plaintiffs' appeal of the order granting summary judgment to John Crane. Although the trial court did not certify that order as final pursuant to Tenn. R. Civ. P. 54.02, the order was a final judgment at the time this Court consolidated plaintiffs' appeal because "all the claims or the rights and liabilities of . . . all the parties" had been resolved. See Tenn. R. Civ. P. 54.02.

         II.

         We restate and consolidate the issues raised by plaintiffs as follows:

Whether the trial court's verbatim adoption of the equipment defendants' proposed findings of fact and conclusions of law violated Tenn. R. Civ. P. 56.04, as interpreted in Smith v. UHS of Lakeside, Inc., 439 S.W.3d 303 (Tenn. 2014).
Whether the trial court erred by granting summary judgment to Daniel on the basis of the four-year construction statute of repose set forth in Tenn. Code Ann. § 28-3-202.
Whether the trial court erred by granting summary judgment to Crane Company, Ingersoll-Rand, and Jamesbury on the basis of the ten-year statute of repose set forth in Tenn. Code Ann. § 29-28-103.
Whether the trial court erred by granting summary judgment to the equipment defendants on the ground that they affirmatively negated their alleged duty to warn.
Whether the trial court erred by granting summary judgment to Armstrong, Crane Company, DeZurik, Fisher, Jamesbury, Jerguson, and John Crane on the ground that plaintiffs presented insufficient evidence of causation.

         III.

         Plaintiffs first ask us to consider whether the trial court's verbatim adoption of the equipment defendants' proposed findings of fact and conclusions of law violated Tenn. R. Civ. P. 56.04, as interpreted in Smith v. UHS of Lakeside, Inc., 439 S.W.3d 303 (Tenn. 2014) (hereinafter "Lakeside"). Plaintiffs did not raise this issue with respect to the court's orders granting summary judgment to Daniel and John Crane. Accordingly, we confine our analysis to the court's orders granting summary judgment to the equipment defendants.

         Tenn. R. Civ. P. 56.04 provides that "[t]he trial court shall state the legal grounds upon which the court denies or grants the motion [for summary judgment], which shall be included in the order reflecting the court's ruling." In Lakeside, the Supreme Court clarified the application of this rule in the context of party-prepared summary judgment orders:

[W]e do not find that Tenn. R. Civ. P. 56.04 is in any way inconsistent with the custom of permitting trial courts to request and consider proposed orders prepared by the prevailing party. However, as we emphasized in the context of the findings of fact and conclusions of law required by Tenn. R. Civ. P. 52.01, Tenn. R. Civ. P. 56.04 must be interpreted in a way that assures that a trial court's decision whether to grant or deny a motion for summary judgment is its own. Delevan-Delta Corp. v. Roberts, 611 S.W.2d at 53….
[W]e conclude that Tenn. R. Civ. P. 56.04 requires the trial court, upon granting or denying a motion for summary judgment, to state the grounds for its decision before it invites or requests the prevailing party to draft a proposed order. Not only will this requirement assure that the decision is the trial court's, it will also (1) assure the parties that the trial court independently considered their arguments, (2) enable the reviewing courts to ascertain the basis for the trial court's decision, and (3) promote independent, logical decision-making. See DiLeo v. Ernst & Young, 901 F.2d 624, 626 (7th Cir.1990); State v. King, 432 S.W.3d 316, 322 (Tenn. 2014).

439 S.W.3d at 316 (footnotes omitted).[4] Ultimately, the Supreme Court affirmed the decision of the Court of Appeals, which vacated the trial court's order granting summary judgment to the defendant. Id. at 318.

         This Court has repeatedly vacated trial court orders that fail to comply with Tenn. R. Civ. P. 56.04, as interpreted in Lakeside. E.g., Mitchell v. Mitchell, No. E2017-00100-COA-R3-CV, 2019 WL 81594, at *7 (Tenn. Ct. App., filed Jan. 3, 2019) (vacating the trial court's order because it was unclear whether the court's order reflected the court's independent judgment); Potter's Shopping Ctr., Inc. v. Szekely, 461 S.W.3d 68, 72 (Tenn. Ct. App. 2014) (vacating the trial court's order because it failed to state the legal grounds for the court's decision).

         However, this Court has also held that a violation of Tenn. R. Civ. P. 56.04 is not reversible error under all circumstances. Huggins v. McKee, 500 S.W.3d 360, 366-67 (Tenn. Ct. App. 2016), perm. app. denied (Tenn. Sept. 22, 2016). In Huggins, the trial court violated Tenn. R. Civ. P. 56.04 because the court adopted party-prepared findings of fact and conclusions of law without first stating the legal grounds for the court's decision. Id. This called into question whether the court exercised its independent judgment. Nevertheless, "[i]n the interest of providing the parties to th[at] case a final resolution of the issues," we chose to "exercise our discretion to proceed to consider the merits of th[e] appeal[.]" Id. at 366; see also Tenn. R. Civ. P. 1 ("These rules shall be construed to secure the just, speedy, and inexpensive determination of every action.").

         In the present case, we exercise our discretion to address the merits of this appeal instead of evaluating the trial court's alleged Lakeside violations and potentially remanding for the entry of additional summary judgment orders. Although we are mindful of "the fundamental importance of assuring that a trial court's decision . . . is the product of the trial court's independent judgment," Lakeside, 439 S.W.3d at 314, we have determined that any potential violations of Tenn. R. Civ. P. 56.04 are moot. For the reasons discussed in this opinion, the trial court erred by granting the equipment defendants summary judgment on the grounds stated in the orders ultimately entered by the trial court. Consequently, the Lakeside issue is pretermitted. We caution litigants and trial courts that we may not choose to overlook potential violations of Tenn. R. Civ. P. 56.04 in the future. See Huggins, 500 S.W.3d at 366-67.

         IV.

         The remaining issues require us to determine whether the trial court erred by granting summary judgment to the defendants. "A trial court's grant of a motion for summary judgment presents a question of law" that we review de novo. Eadie v. Complete Co., Inc., 142 S.W.3d 288, 291 (Tenn. 2004) (citing Goodloe v. State, 36 S.W.3d 62, 65 (Tenn. 2001)). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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." Tenn. R. Civ. P. 56.04. The Supreme Court has ruled that

when the moving party does not bear the burden of proof at trial, the moving party may satisfy its burden of production either (1) by affirmatively negating an essential element of the nonmoving party's claim or (2) by demonstrating that the nonmoving party's evidence at the summary judgment stage is insufficient to establish the nonmoving party's claim or defense.

Rye v. Women's Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015) (emphasis in original). On the other hand, if the moving party is asserting an affirmative defense, and therefore has the burden of proof at trial, the moving party must "alleg[e] undisputed facts that show the existence of the affirmative defense." Id. at 259 (quoting Hannan v. Alltel Publ'g Co., 270 S.W.3d 1, 8-9 & n.6 (Tenn. 2008)).[5]

         Once the moving party has satisfied its burden of production, in order to survive summary judgment, the non-moving party

may not rest upon the mere allegations or denials of the adverse party's pleading, but his or her response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.

Tenn. R. Civ. P. 56.06. This may be accomplished by:

(1) pointing to evidence establishing material factual disputes that were over-looked or ignored by the moving party; (2) rehabilitating the evidence attacked by the moving party; (3) producing additional evidence establishing the existence of a genuine issue for trial; or (4) submitting an affidavit explaining the necessity for further discovery pursuant to Tenn. R. Civ. P., Rule 56.06.

Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008) (quoting McCarley v. W. Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998)).

         A.

         We will first consider whether the trial court erred by granting summary judgment to Daniel on the basis of the four-year construction statute of repose. Because the construction statute of repose is an affirmative defense, Daniel had the burden of "alleging undisputed facts that show the existence of the affirmative defense." Rye, 477 S.W.3d at 259.

         Tennessee's construction statute of repose provides that

[a]ll actions to recover damages for any deficiency in the design, planning, supervision, observation of construction, or construction of an improvement to real property . . . for injury to the person or for wrongful death arising out of any such deficiency, shall be brought . . . within four (4) years after substantial completion of such an improvement.

Tenn. Code Ann. § 28-3-202. This statute is subject to the following exception:

The [construction statute of repose] shall not be asserted as a defense by any person in actual possession or the control, as owner, tenant, or otherwise, of such an improvement at the time any deficiency in such an improvement constitutes the proximate cause of the injury or death for which it is proposed to bring an action.

Tenn. Code Ann. § 28-3-205(a).

         Daniel was an independent contractor hired to perform construction services at Eastman. One of the services Daniel provided was the periodic removal and installation of insulation. Plaintiffs claim that Mr. Coffman was exposed to asbestos as a result of this activity. In the trial court, Daniel contended that its removal and installation of insulation constituted "construction of an improvement to real property" within the meaning of the construction statute of repose. Daniel also submitted evidence that it ceased providing construction services in 1990. According to Daniel, plaintiffs' claims were clearly time-barred.

          For purposes of summary judgment, plaintiffs did not dispute that Daniel completed its construction work in 1990. However, plaintiffs insisted that Daniel's daily removal and installation of insulation was not "construction of an improvement to real property." Alternatively, plaintiffs argued that the exception to the construction statute of repose was applicable.

         The trial court ruled that the statute of repose barred plaintiffs' claims because Daniel's removal and installation of insulation was "construction of an improvement to real property." That determination is a question of law that we review de novo. Memphis Light, Gas & Water Div. v. T.L. James & Co. Inc., No. 52, 1986 WL 11588, at *4 (Tenn. Ct. App., filed Oct. 17, 1986).

         Tennessee's construction statute of repose does not define the term "improvement to real property." In the absence of a statutory definition, "the words of the statute are to be given their usual and ordinary meaning, without forced limitations or extensions." Id. at *3 (citing State v. Thomas, 635 S.W.2d 114 (Tenn. 1982)). Applying that interpretive principle, we have previously held that the word "improvement" in the construction statute of repose means

[a] valuable addition made to property (usually real estate) or an amelioration in its condition, amounting to more than mere repairs or replacement, costing labor or capital, and intended to enhance its value, beauty or utility or to adapt it for new or further purposes. Generally, buildings, but may also include any permanent structure or other development, such as a street, sidewalks, sewers, utilities, etc.

Id. (citing Black's Law Dictionary, 5th Ed. (1979)).

         Plaintiffs correctly observe that Tennessee law recognizes a distinction between "improvements to real property" and "mere repairs or replacement." See id.; see also Cartwright v. Presley, No. E2005-02418-COA-R3CV, 2007 WL 161042, at *4-5 (Tenn. Ct. App., filed Jan. 23, 2007). However, the parties have not cited, and we have not identified, any Tennessee cases which have addressed the specific question of whether the daily removal and installation of insulation at an industrial facility is "construction of an improvement to real property."[6]

         In Peter v. Sprinkmann Sons Corporation, the Wisconsin Court of Appeals held that a contractor's daily removal and installation of asbestos-containing insulation at an industrial facility was not "construction of, or the furnishing of materials for, the improvement to real property" under Wisconsin's construction statute of repose. 860 N.W.2d 308, 311-12, 315 (Wis. Ct. App. 2015). The court reasoned that the "initial" installation of insulation might be considered construction of an improvement to real property, but the daily removal and installation of insulation indicates that the insulation is merely being repaired or replaced. See id. at 315. In other cases, courts have held that a defendant is not entitled to summary judgment pursuant to a construction statute of repose when there is an issue of fact as to whether insulation is intended to be a permanent feature of a building. See, e.g., Estate of Brandes v. Brand Insulations, Inc., No. 73748-1-I, 2017 WL 325702, at *3 (Wash. Ct. App., filed Jan. 23, 2017); Sorenson v. Building Service Indus. Sales, Inc., No. 2014AP964, 2015 WL 1893444, at *4 (Wis. Ct. App., filed Apr. 28, 2015); Covington v. W.R. Grace-Conn., Inc., 952 P.2d 1105, 1108 (Wyo. 1998).

         Like the Wisconsin Court of Appeals, "[w]e agree that the initial installation of insulation into a building or house may be considered an improvement to real property," if it is intended to be a permanent feature of the property. Peter, 860 N.W.2d at 315 (emphasis added); see also Pridemark Custom Plating, Inc. v. Upjohn Co., Inc., 702 S.W.2d 566 (Tenn. Ct. App. 1985) (assuming that spray-on insulation material that was applied during the original construction of a building constituted an "improvement to real property"). However, the daily removal and installation of insulation at an industrial facility over the course of many years indicates that existing insulation is merely being repaired and replaced. See Peter, 860 N.W.2d at 315. We hold, as a matter of law, that such activity does not constitute "construction of an improvement to real property" within the meaning of Tenn. Code Ann. § 28-3-202.

         Accordingly, the trial court erred when it granted summary judgment to Daniel on the basis of the construction statute of repose.

         B.

         We next consider whether the trial court erred by granting summary judgment to Crane Company, Ingersoll-Rand, and Jamesbury on the basis of the ten-year statute of repose set forth in Tenn. Code Ann. § 29-28-103.

         At the outset, we acknowledge that DeZurik, Fisher, Flowserve, Jerguson, and Powell claim that the trial court also granted them summary judgment pursuant to the ten-year statute of repose. We disagree. The court only granted Flowserve "partial summary judgment" on the repose issue. Specifically, the court ruled that the statute of repose barred claims as to "pumps or valves first sold for use prior to July 1, 1969." (Emphasis added.) The trial court denied Flowserve's motion for summary judgment "[w]ith regard to any pumps that were replaced," because there was an issue of material fact as to whether Flowserve sold products to Eastman on or after July 1, 1969. Similarly, the court ruled that "Powell is not liable . . . for any valves first sold for use prior to July 1, 1969." (Emphasis added.)

         The orders granting summary judgment to DeZurik, Fisher, and Jerguson say nothing about the statute of repose. Nevertheless, defendants argue that the trial court granted them summary judgment on the repose issue because the court's orders incorporate by reference the findings of fact and conclusions of law that accompanied Crane Company's summary judgment order (which did include a discussion of the statute of repose). Those findings and conclusions, however, are only specific to Crane Company. In some cases, the same findings of fact and conclusions of law might be applicable to more than one party; however, determining whether the statute of repose bars a product liability action is a fact-intensive and defendant-specific inquiry. In this context, the incorporation of findings and conclusions that are specific to a different defendant is meaningless absent additional clarification. The trial court did not provide such clarification in its orders granting summary judgment to DeZurik, Fisher, and Jerguson.[7] Regardless of the trial court's alleged intentions, we hold that the court's orders did not grant summary judgment to these defendants on the repose issue.

         In 1978, the General Assembly enacted the Tennessee Products Liability Act (TPLA), which included the following statute of repose:

[a]ny action against a manufacturer or seller of a product for injury to person or property caused by its defective or unreasonably dangerous condition . . . must be brought within ten (10) years from the date on which the product was first purchased for use or consumption . . . .

Tenn. Code Ann. ยง 29-28-103(a) (emphasis added) (effective July 1, 1978). One year later, the legislature amended the TPLA by adding the following ...


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