Potter v. BFK, Inc.

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PRESENT: Goodwyn, Mims, Powell, Kelsey, McCullough, and Chafin, JJ., and Russell, S.J. BRIAN C. POTTER, PERSONAL REPRESENTATIVE OF THE ESTATE OF DANIEL C. POTTER, DECEASED OPINION BY v. Record No. 191716 JUSTICE CLEO E. POWELL JULY 22, 2021 BFK, INC. FROM THE CIRCUIT COURT OF LOUDOUN COUNTY Jeanette A. Irby, Judge Brian C. Potter (“Potter”), the father and personal representative of the estate of Daniel Potter (“Daniel”) appeals the decision of the Circuit Court of Loudoun County finding that a Buell Classifier was ordinary building material and, therefore, subject to Virginia’s statute of repose, Code § 8.01-250. I. BACKGROUND For many years, the Luck Stone Corporation (“Luck Stone”) has owned and operated a stone quarry and surrounding land upon which it operates a surface-mining and processing operation for the production of stone products. A part of this operation is a system for the production of manufactured sand from crushed stone. Luck Stone’s Chief Concept Engineer testified that the system is comprised of a feed conveyor that carries the raw product to . . . the sand system, which is a Buell [C]lassifier the material falls into. It’s connected by virtue of a ductwork to a silo. The silo has a dust collector on top of it, and the whole system is run by a fan. A fan creates a draw through the Buell [Classifier] and up into the silo. The dust collector shakes, puts the fines into the silo. And then . . . the Buell [Classifier] separates the manufactured sand from the super fines. The super fines go into the silo; the sand goes onto another conveyor. In 2007, Luck Stone replaced earlier equipment with two Buell Classifiers and other components of the sand manufacturing system with products manufactured by BFK, Inc. (“BFK”) and installed by a contractor employed by Luck Stone. On August 3, 2015, Daniel was employed by Luck Stone as a truck driver. Daniel was instructed to remove material from the sand plant and dump it at an onsite storage area. He parked his truck under the conveyor belt and entered the silo to operate the air flow system. Soon after he entered the silo, a hopper containing stone material ruptured, setting off a chain of events that buried him in falling material and caused his death. In July 2017, Potter, as the personal representative of Daniel’s estate, brought an action under the Virginia Wrongful Death Act, Code § 8.01-50, against BFK and other defendants. BFK filed a plea in bar, asserting that Potter’s action was time-barred under the statute of repose, Code § 8.01-250, because the Buell Classifier did not qualify as equipment or machinery and therefore was subject to the five-year limitation imposed by the statute. After holding an evidentiary hearing, the circuit court determined that the Buell Classifier manufactured by BFK “was ordinary building material” and, therefore, the action was time-barred under Code § 8.01- 250. Accordingly, the circuit court sustained the plea in bar and dismissed the action against BFK with prejudice. …

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