A claimant must bring suit for damages for a claim [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 [ten] 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. § 16.009(a) (Vernon 2002) (emphasis added).
The purpose of a statute of repose is to provide absolute protection to certain parties from the burden of indefinite potential liability and to fix an outer limit beyond which no action can be maintained. Nathan v. Whittington, 408 S.W.3d 870, 875 (Tex. 2013). One benefit in such a statute is “to prevent defendants from answering claims where evidence may prove elusive due to unavailable witnesses (perhaps deceased), faded memories, lost or destroyed records, and institutions that no longer exist.” Id. at 876. Another purpose of section 16.009 is to protect individuals and corporations who have no control over the substantially completed real estate improvement and have no authority to go onto the premises to inspect the improvement for unsafe conditions, to ensure that it is being used for the purpose for which it was designed, or to check for any defective alterations. Hernandez v. Koch Mach. Co., 16 S.W.3d 48, 52 (Tex. App.—Houston [1 Dist.] 2000, pet. denied). The statute was intended to apply to litigation against architects, engineers, and others involved in designing, planning or inspecting improvements to real property, as distinguished from materialmen and suppliers and from tenants and owners who possess or control the property. McCulloch v. Fox & Jacobs, Inc., 696 S.W.2d 918, 922 (Tex. App.—Dallas 1985, writ ref’d n.r.e) (interpreting prececessor statute to section 16.009).
By its plain language, Section 16.009 applies only to claims brought against “a person who constructs or repairs an improvement to real property” 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.” See Tex. Civ. Prac. & Rem. Code Ann. § 16.009(a).
South Texas argues that KBR was not “the one who construct[ed] or repair[ed]” the tower. Specifically, South Texas contends that “ no allegation was made [in KBR's motion for summary judgment] that KBR physically performed the defective work.” South Texas further asserts that “KBR merely watched the ‘contractor who built the building.’”
Analysis—Did KBR construct or repair the improvement?
Both parties agree that a defendant need not “physically hammer the nails and turn the screws” to claim application of the statute of repose, and that “section 16.009′s protection extends to parties who, though they did not personally perform the construction work at issue, were nevertheless contractually responsible for the construction work and subject to liability in the lawsuit based on that responsibility.” Jenkins v. Occidental Chem. Corp., 415 S.W.3d 14, 25 (Tex. App.—Houston [1st Dist.] 2013, pet. filed); see also Fuentes v. Cont’l Conveyor & Equip. Co., Inc., 63 S.W.3d 518, 521–22 (Tex. App.—Eastland 2001, pet. denied) (holding that conveyor belt system manufacturer hired by property owner to “supervise and assist” in installation of conveyor belt system was protected by statute); Reames v. Hawthorne-Seving, Inc., 949 S.W.2d 758, 763 (Tex. App.— Dallas 1997, pet. denied) (holding that general contractor who “bore ultimate responsibility” to property owner for construction work by subcontractor was entitled to protection of statute). However, the parties in this case disagree about whether KBR’s involvement in the project is sufficient to invoke the protection of the statute.
South Texas relies on Sonnier v. Chisholm–Ryder Co., 909 S.W.2d 475, 478-83 (Tex. 1995), in which a manufacturer whose product was annexed to realty by another asserted the statute of repose. The supreme court held that section 16.009 was not intended to grant repose to manufacturers in product liability suits and only precludes suits against persons or entities in the construction industry that annex personalty to realty. Id. Sonnier is factually distinguishable from this case because KBR is not a manufacturer seeking to use the statute of repose simply because its product was later affixed by someone else to real property.
South Texas also relies on Jenkins, in which a premises owner asserted the statute of repose with respect to equipment it had constructed on its site. See Jenkins, 415 S.W.3d at 17. But, Jenkins too is factually distinguishable from the present case in that KBR is not the property owner seeking to take advantage of a statute of repose that is intended to protect those who construct or repair improvements to real property.
As Jenkins acknowledges, the statute protects (1) “direct actors” in the construction or repair of improvements, and such actors are (2) generally “an entity in the construction industry, ” but (3) need not physically perform the construction work at issue if they are contractually responsible for construction and their liability in the lawsuit stems from their responsibility for that work. Id. at 25.
South Texas argues that KBR was not a “direct actor in the construction, ” and had no “ ultimate responsibility” for the construction because it “merely watched the contractor who built the building.” South Texas’s pleadings belie this assertion. For example, South Texas alleges that KBR was “contractually obligated to monitor, manage and supervise” the installation of the masonry, thereby causing damage to South Texas. South Texas also alleges that “KBR was in the business of providing construction management and supervision services, ” and “ had an existing legal duty to manage and supervise masonry work to ensure the work was performed in a good and workmanlike manner, ” and that “ KBR was negligent in its supervision and management of the activities and practices of Wilmac and Vernon.” Finally, South Texas alleged that KBR breached an implied or express warranty “to act on behalf of South Texas and manage, monitor and supervise the construction of the masonry to ensure the masonry installation complied” with plans, specifications, contractual documents, industry standards, building codes, and was performed in a good and workmanlike manner.
From South Texas’s own pleadings it is apparent that KBR is an entity in the construction industry and that South Texas is seeking to hold it contractually responsible for the faulty masonry installation done by Wilmac and Vernon Masonry. Under these circumstances, and accepting South Texas’s pleadings as true, we conclude that KBR is a “direct actor” in the construction process.
The purpose of a statute of repose is “to prevent defendants from answering claims where evidence may prove elusive due to unavailable witnesses (perhaps deceased), faded memories, lost or destroyed records, and institutions that no longer exist.” Nathan, 408 S.W.3d at 876. In this case, there is evidence that the contract on which the suit is based can no longer be located, and no KBR employee involved in the project can be located. The building was completed 24 years before the suit was filed, and it is undisputed that the general contractor and the subcontractors would be permitted to rely on the statute of repose. KBR, who is being sued for failing to properly supervise the contractor and subcontractor, is similarly situated. Accordingly, we hold that the trial court did not err in granting KBR’s motion for summary judgment or in denying South Texas’s motion for new trial.
CONCLUSION
We affirm the trial court’s judgment.
