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OCTOBER 18, 1989




This is an appeal from the Circuit Court of Lamar County, Mississippi, Honorable Michael R. Eubanks, presiding. Bonnie Cook, appellee, is the widow and administratrix of the estate of Willie G. Cook, who died as a result of injuries received when a pipe in the Amerada Hess Refinery near Purvis froze, burst, leaked gas and caught fire resulting in an explosion. This unfortunate accident happened on December 26, 1983.

Appellant, defendant below, was Fluor Corporation, who designed and built the refinery in the 1950's and several other refinery service and contracting companies. None of the other defendants below are parties to this appeal, even though they were all dismissed by separate order for different reasons.

 There were two personal injury cases, Smith and Hall, filed approximately the same time as the case at bar, but they were consolidated and assigned to a different judge. In that consolidated case Fluor was granted summary judgment, one defendant settled, and the others were either dismissed by directed verdict at trial or by jury verdict for the defendants. No appeals were taken in Smith and Hall except for the appeals against Fluor, which this Supreme Court affirmed in Fluor's favor. Smith v. Fluor Corp., 514 So. 2d 1227, 1232 (Miss. 1987)

 In the case at bar, Fluor attempted to have the case dismissed in a written amended motion for summary judgment. After

 a full hearing and presentation of memoranda in support of each party's position, the learned circuit judge denied Fluor's motion. Approximately six months later, Fluor and other defendants moved the lower court to exclude testimony of untimely disclosed experts. The court found that the motion of the defendants to exclude the testimony should be granted as to Harry W. McAninch and denied as to Robert W. McLeod. Thereafter, thinking its position prejudiced as a result of losing the use of Harry W. McAninch's expert testimony, plaintiff/appellee moved the lower court to non-suit the case under Rule 41 (a) (2) of Mississippi Rules of Civil Procedure. The trial judge granted plaintiff's motion of dismissal as to Fluor Corp. without prejudice on August 17, 1987. It is from this final judgment that Fluor Corp. has perfected its appeal and assigns as error:

 1. The lower court erred in failing to grant Fluor Corporation's motion for summary judgment on either of the following theories:

 (a) It is unconstitutional to allow wrongful death plaintiffs a better statute of limitations from that applied to personal injury plaintiffs under 15-1-41, Miss. Code Ann.;

 (b) Because plaintiff's cause of action expired in 1968, the 1972 amendment to 15-1-41 could not revive the plaintiff's cause of action for wrongful death.

 2. The lower court erred in failing to dismiss this suit with prejudice, rather than without prejudice, due to the plaintiff's failure to timely answer interrogatories.

 The facts of how this accident occurred are clearly set forth in Smith, supra, at 1228, 1229. However, for the sake of convenience and understanding, the pertinent text is abstracted hereafter.

 Fluor Corporation built the Black Creek refinery for Pontiac Eastern Corporation in the late 1950s, and Pontiac Eastern accepted the plant prior to February 18, 1958. In 1971, Amerada Hess purchased the plant from Pontiac Eastern.

 Fluor Corporation has not been back on the premises since 1958, nor has it had anything to do with the refinery. Fluor has never given any advice in the operation, modification and maintenance of the refinery since delivering it to Pontiac Eastern Corporation in 1958. In 1964, Pontiac Eastern modified the 6E-10 heat exchanger by increasing its capacity by fifty percent (50%)

 adding a third set of fin tubes and lengthening the inlet header. The inlet header is the section of pipe which burst.

 The record in Smith, supra, indicates how that portion of the refinery operates where the explosion occurred. A hydrocarbon stream flows through a 6-inch pipe into the 6E-10 heat generator, which is a metal cylindrical vessel approximately 22 feet long. Hydrocarbon flows through a number of small tubes inserted lengthwise through the vessel and then into another portion of the plant known as the deisobutanizer tower (DIB). At the point where the hydrocarbon enters the heat exchanger, there is a large 6-inch pipe known as the inlet manifold. A valve is situated in the pipe before the gas stream enters the inlet manifold so that the flow of gas to the heat exchanger can be cut off. If a fissure occurs, the operator should open a bypass valve above the heat exchanger to allow the gas to flow around the heat exchanger and directly to the DIB. On the outlet side of the heat exchanger is another valve, the outlet valve, which likewise should be closed if the unit is bypassed in order that the heat exchanger would be closed at both ends and gas would not back up into the heat exchanger while it is bypassed.

 As stated, Pontiac Eastern enlarged the capacity of the heat exchanger by adding an additional set of tubes in 1964, seven (7) years before Hess bought the refinery. The inlet manifold had to be lengthened and a new section of 6-inch pipe was welded into the end of it. Also, a drain valve was added at the end to drain water which might condense from the refining process and collect in the inlet manifold.

 At the time of the accident in question, the 6E-10 heat exchanger had been bypassed. Hess had not used it for several years, and gas was flowing directly from previous parts of the refinery straight into the DIB without going through the heat exchanger. The inlet valve was closed so the gas could not enter the heat exchanger, but the bypass valve was open.

 The outlet valve to the heat exchanger also was left open. The process superintendent for Hess admitted that it should have been closed. The outlet valve having been left open, it allowed hydrocarbons to pass into the pre-heater, though they were not being circulated as part of the normal gas flow. This allowed water vapor in the gas stream to condense and collect in the lowest portion of the pre-heater, which was the inlet manifold. During abnormally cold weather in December, 1983, water collected in the manifold, was not drained, and froze, bursting the pipe. When it thawed on December 26, a cloud of hydrocarbons escaped and was ignited, causing the explosion resulting in Willie W. Cook's death.

 ISSUE # 1


 This question presents an area of our law which this Supreme Court has recently decided. The simple answer is, no. Anderson v. Fred Wagner and Roy Anderson. Jr., 402 So. 2d 320 (Miss. 1981).

 Miss. Code Ann. 15-1-41 was enacted on June 15, 1966. It was later amended in 1972, which version is appropriate for the case at bar and is reproduced below in its entirety. The statute was again amended in 1985 and most recently in 1986, both amendments not being applicable to the case at bar. The 1972 version reads as follows:

 No action may be brought to recover damages for injury to property, real or personal, or for an injury to the person, arising out of any deficiency in the design, planning, supervision or observation of construction, or construction of an improvement to real property, and no action may be brought for contribution or indemnity for damages sustained on account of such injury except by prior written agreement providing for such contribution or indemnity, against any person, firm or corporation performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property more than ten (10) years after the written acceptance or actual occupancy or use, whichever occurs first, of such improvement by the owner thereof.

 This limitation shall not apply to any person, firm or corporation in actual possession and control as owner, tenant or otherwise of the improvement at the time the defective and ...

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