The opinion of the court was delivered by: Irenas, District Judge
HONORABLE JOSEPH E. IRENAS
This matter appears before the Court upon the motion for summary judgment filed by defendants, Olsen Engineering Corporation ("Olsen Engineering") and International Switchboard Corporation ("International Switchboard"). Defendants seek summary judgment on the claims of plaintiff, Amelia Woessner ("Woessner"), arising out of a personal injury sustained while the plaintiff performed electrical maintenance and repair on a motor control center located on Wrangle Hill Road in Delaware City, Delaware. For the reasons set forth below, this Court finds that plaintiff's claim is barred by Delaware's statute of repose. Accordingly, defendants' motion for summary judgment is granted.
The material facts in this case are undisputed. In 1972, Cardox, Inc. ("Cardox") *fn1 was in the process of planning the construction of a carbon dioxide recovery plant adjacent to its existing facilities on its Delaware City, Delaware location. The purpose of the plant was to convert impure carbon dioxide, being produced as a byproduct of other Cardox processes on the facility, into a purified usable form of liquid carbon dioxide. During this planning stage, Cardox negotiated and entered into a contract with Olsen Engineering for the engineering, design, and procurement of the project. Specifically, Olsen Engineering agreed to provide complete design engineering for structural, electrical, and instrumentation, in addition to detailed construction drawings, based on Cardox's process design and the Cardox approved specifications, mechanical flow diagrams and plot plan. (See Letters from Olsen to Cardox dated 12/15/72 and 3/26/73.)
Pursuant to this agreement, Olsen Engineering drafted specifications for a 2300 volt switchgear, also referred to as the "C-2 motor control unit" and "motor control center" (herein "motor control unit"), which were to be approved by Cardox by March 14, 1973. These specifications were mailed to four companies, including International Switchboard, accompanied by a cover letter seeking bids for the cost of supplying one 2300 Volt Switchgear according to the attached specifications using Westinghouse or General Electric parts. International Switchboard submitted a bid which was accepted by Olsen Engineering. The final agreement called for an outline by March 23, 1973, and a completed product by April 6, 1973. The unit was produced accordingly and delivered to the Cardox site where it was installed in 1973. The motor control unit consists of two sections: a top section housing controls with a separate door and a bottom section.
The power that energizes the motor control center comes from a transformer which is located adjacent to the building. A cable brings electricity from the transformer to a busbar which distributes the power to three lugs. These lugs feed power to the motor control center. After receiving electricity from the lugs, the motor control unit in turn energizes the C-2 motor which activates and energizes the compressor. This compressor cools the carbon dioxide in order to convert it to its liquid stage. The compressor works along with other production equipment to purify the Carbon dioxide. Absent this control motor unit, the compressor motor could not run and the compressor would not function.
There is some disagreement over the permanency of the machine. It is settled that some of the machines were built on "skids" in order that they could be assembled outside of the plant and ultimately set up in the plant. However, it is unclear if the motor controller unit was built on skids and simply placed in the plant later. The motor controller unit was "removable" in the sense that it was later replaced with another unit following the explosion. However, it is clear that the motor controller unit was bolted to the floor, affixed to the concrete and had underground wires running from the unit to the compressor motor.
The plaintiff, Amelia Woessner, worked as a field technician for "D" Electric Motors from July, 1992, through July, 29, 1994, the day she was injured during the events which form the basis of this litigation. As a field technician, Woessner was responsible for troubleshooting motors located on a customer's facilities. Air Liquide, Inc. ("Air Liquide"), the acquirer of Cardox, requested the services of "D" Electric. "D" Electric sent Woessner to Air Liquide's Delaware facility in Delaware City on two occasions: first on June 6, 1994, and again on July 29, 1994. The purpose of her second trip, on July 29, 1994, was to trouble shoot a motor which was not functioning. Upon arrival to the Delaware campus, Woessner met with Ted Salazar ("Salazar"), Air Liquide's highest ranking employee in Delaware who explained the trouble with the motor.
After inspecting the 2,300 volt motor, Woessner determined that it could not be repaired at the Delaware facility and that it would need to be removed and taken to "D" Electric's facility in New Jersey. Before the motor was removed, Salazar asked Woessner to test the motor control unit to assure that it was working properly and was not also in need of repair. Woessner believed the power to the motor control center had been disconnected.
While Woessner was checking the motor control unit, Woessner's 600 volt tester contacted with the live 2,300 volt power supply and caused an explosion. Woessner suffered burn injuries in this accident and was rushed to Crozier Burn Center in Chester County, Pennsylvania for extensive treatment. Plaintiff alleges that Olsen Engineering failed to provide a safety device with the motor control unit which would have shielded anyone from touching the power supply and avoiding any part which remained energized after the machine was turned off.
Plaintiff filed a Second complaint naming Air Liquide, Cardox, General Electric, Olsen Engineering, and International Switchboard as defendants. Subsequently, Air Liquide named "D" Electric as a third party defendant and counter-claimed against Woessner for damage to its facility. Presently all claims between the plaintiff, Air Liquide, Cardox, and General Electric have been resolved. In addition, this Court, in a written opinion granted Air Liquide's motion for summary judgment against International Switchboard and Olsen Engineering and dismissed their cross-claims for indemnification and contribution. The only remaining parties to the litigation before this Court are the plaintiff, International Switchboard, and Olsen Engineering. *fn2
On January 7, 1999, this Court granted International Switchboard's motion that the law of Delaware should govern the determination of liability issues in this matter. At that time the Court declined to rule on the issue presently before the Court to allow the parties further time to brief the issues. Olsen Engineering and International Switchboard filed the instant motion for summary judgment, claiming that Delaware's statute of repose, 10 Del. C. § 8127, bars recovery in the present suit since the motor control unit was designed and installed more than six years prior to the cause of action. The plaintiff claims that the motor controller unit installation is not covered by the Delaware statute of repose since it is not an "improvement to realty" as required by 10 Del. C. § 8127. This Court agrees with the defendants that the statute of repose is applicable to the case at bar. For the reasons set fourth below, the motion of the defendants is therefore granted and the plaintiff's case is dismissed.
II. SUMMARY JUDGMENT STANDARD
"[S]ummary judgment is proper `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.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)). Although the moving party bears the initial burden of informing the district court of the basis for its motion, there is no requirement that the moving party support its motion with affidavits or other similar materials negating the opponent's claim. Id. at 323. The non-moving party may not simply rest on its pleadings to oppose a summary judgment motion but must affirmatively come forward with admissible specific evidence establishing a genuine issue of fact. See id. at 324. Where the moving party has carried its initial burden of demonstrating ...