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Ferrell v. River City Roofing8/18/2005
NATURE OF THE CASE: CIVIL - PROPERTY DAMAGE
DISPOSITION: AFFIRMED - 08/18/2005
BEFORE WALLER, P.J., DICKINSON AND RANDOLPH, JJ.
. Wayne E. Ferrell, Jr., individually and d/b/a Ferrell-Hubbard Investments ("Ferrell") filed suit against River City Roofing, Inc. ("River City"); Carlisle Syntec Systems, a division of Carlisle Corporation ("Carlisle"); and putative defendants, A through M, on December 28, 2001, in the Circuit Court of the First Judicial District of Hinds County, Mississippi. Ferrell amended his complaint naming as additional defendants Henry D. Melsheimer and Larry Montpelier, Jr. ("Montpelier") in order to more definitely provide the names of the defendants.
In both the original and amended complaint, Ferrell asserted claims of faulty workmanship and defective product under a plethora of theories, including but not limited to: (1) negligence; (2) fraud; (3) defective materials; (4) strict liability in tort; (5) breach of express and implied warranties; (6) breach of contract; (7) products liability; and (8) false representation. Specifically, Ferrell asserts that he was entitled to damages for the manufacture, installation and use of defective materials utilized to the roof of a structure located at 405 Tombigbee Street in Jackson, Mississippi.
. River City and Montpelier filed a motion for summary judgment asserting that Ferrell's claims were time barred by the statute of repose, Miss. Code Ann. § 15-1-41 (1995). Ferrell filed a response and/or objection to River City and Montpelier's motion for summary judgment asserting that his claims were not time barred because the actions of replacing or repairing the roof were not within the meaning of § 15-1-41:
The re-roofing of the . . . building . . . was not a damage to property or personal injury that arose out of any deficiency in the design, planning, supervision, observation or construction of AN IMPROVEMENT TO REAL PROPERTY since the roof was not actually an improvement. It was simply a repair of the roof that had previously been on the building and it still exists on the building. (Emphasis in original). Additionally, Ferrell asserted that the products liability statute, Miss. Code Ann. § 11-1-63, applied because the roof is defective, and thus, § 11-1-63 invoked the "discovery rule," which set the beginning of the limitation period from the time the defect was first discovered. Following oral arguments by the parties, the trial judge granted summary judgment in favor of River City and Montpelier and entered the judgment as final pursuant to Miss. R. Civ. P. 54(b).
. Ferrell appeals and raises the following issues, which have been restated for clarity:
I. Whether the trial court erred in granting summary judgment in favor of River City and Montpelier based upon the believed applicability of Miss. Code Ann. § 15-1-41.
II. Whether the products liability statute, Miss. Code Ann. § 11-1-63, applies, and renders the "discovery rule," as stated in Miss. Code Ann. § 15-1-49, applicable for the purpose of computing the correct statute of limitations period.
FACTS
. On and prior to August 11, 1993, River City installed a commercial roof on Ferrell's building located in Jackson, Mississippi, at 405 Tombigbee Street. In his complaint, Ferrell asserts that River City negligently manufactured and installed the roofing membrane, which subsequently resulted in the roof leaking water and causing property damage. Ferrell asserts that River City "promised, warranted, represented, and assured" Ferrell that the problems would be corrected.
. Ferrell additionally asserted problems arose, and River Cit
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