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Petro Stopping Centers8/24/1995
This is a products liability case. Appellants, Petro Stopping Centers, Inc. and Charlie's Knife Shop ("Petro Stopping Center"), appeal from a summary judgement in favor of Appellee, Owens-Corning Fiberglas ("Owens-Corning"), on its statute of repose affirmative defense. We reverse the decision of the trial court and remand for a trial upon the merits.
The Petro Stopping Center, originally constructed in 1975, is a 24- hour truck stop with retail shopping center, showers, restroom facilities, lounge, theater, laundry facilities, kitchens, and 250-seat restaurant. In the original construction, a kraft-faced fiberglass insulation, allegedly manufactured by Owens-Corning, was attached by E-Z tight Corporation to the bottom of the roof trusses throughout the complex. In 1980 and 1988, additions to the original structure used the same type and brand of insulation.
In 1989, the restaurant kitchen was renovated. During installation of two new stainless steel cooking hoods, an area of fiberglass insulation was exposed. As the hoods were installed, welding sparks were observed coming from inside and outside the hoods. Shortly after the welding was completed, the fiberglass insulation caught fire. Uncontained, the fire totally destroyed the entire building within minutes.
Appellants brought suit against Owens-Corning on December 28, 1990, in strict product liability. Owens-Corning filed a Motion for Summary Judgement alleging that the installation of the insulation was substantially completed more than ten (10) years prior to the filing of this suit and, therefore, Appellants' cause of action was barred by Section 16.009 of the Texas Civil Practices & Remedies Code, (the statute of repose). Furthermore, Owens-Corning argued that there was no evidence before the trial court of willful misconduct and\or fraudulent concealment by Owens-Corning. The trial court entered final summary judgment in favor of Owens-Corning on both counts and ordered that Appellants take nothing by their suit.
The sole issue we consider here is whether Section 16.009 of the Texas Civil Practices & Remedies Code applies to materialmen, i.e. "'a person who does not engage in the business of building or contracting to build homes for others, but who manufactures, purchases or keeps for sale materials which enter into buildings and who sells or furnishes such material without performing any work or labor in installing or putting them in place.'" Williams v. U.S. Natural Resources, Inc., 865 S.W.2d 203, 208 (Tex.App. -- Waco 1993, no writ), quoting Reddix v. Eaton Corp., 662 S.W.2d 720, 724 (Tex.App. -- San Antonio 1983, writ ref''d n.r.e.).
Section 16.009 provides:
(a) A claimant must bring suit for [injury, damage, or loss to real or personal property] against a person who constructs or repairs an improvement to real property not later than 10 years after the substantial completion of the improvement in an action arising out of a defective or unsafe condition of the real property or a deficiency in the construction or repair of the improvement. Tex.Civ.Prac.&Rem;Code Ann. Section(s) 16.009(a)(Vernon 1986).
The original repose statute was enacted in 1969, as Article 5536a, and limited claims "against any registered or licensed engineer or architect . . . ." Act of June 2, 1969, 61st Leg., R.S., ch. 418, Section(s) 1, 1969 Tex.Gen.Laws 1379. This original statute, now Section 16.008 of the Civil Practice and Remedies Code, is only material here to understand the legislative intention to subsequently expand the statute's coverage. See Tex.Civ.Prac.&Rem;Code Ann. Section(s) 16.008. In 1975, the legislature amended 5536a by adding Section 2, whic
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