Ag Valley Co-op v. Servinsky Engr. , 311 Neb. 665 ( 2022 )

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www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
AG VALLEY CO-OP v. SERVINSKY ENGR.
Cite as 311 Neb. 665Ag Valley Cooperative, Non-Stock, a Nebraska
cooperative corporation, appellant, v.
Servinsky Engineering, PLLC, a Michigan
professional limited liability
company, et al., appellees.
___ N.W.2d ___
Filed June 3, 2022. No. S-20-709.
1. Summary Judgment: Appeal and Error. An appellate court affirms a
lower court’s grant of summary judgment if the pleadings and admitted
evidence show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from the facts and that
the moving party is entitled to judgment as a matter of law. In reviewing
a summary judgment, an appellate court views the evidence in the light
most favorable to the party against whom the judgment was granted, and
gives that party the benefit of all reasonable inferences deducible from
the evidence.
2. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law which an appellate court reviews independently of the
lower court.
3. Limitations of Actions. The determination of which statute of repose
applies is a question of law.
4. Summary Judgment: Proof. The party moving for summary judgment
must make a prima facie case by producing enough evidence to show
that the movant is entitled to judgment if the evidence were uncontro-
verted at trial. If the party moving for summary judgment makes a prima
facie case, the burden shifts to the nonmovant to produce evidence
showing the existence of a material issue of fact that prevents judgment
as a matter of law.
5. Summary Judgment. Conclusions based on guess, speculation, conjec-
ture, or a choice of possibilities do not create material issues of fact for
purposes of summary judgment.
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AG VALLEY CO-OP v. SERVINSKY ENGR.
Cite as 311 Neb. 6656. Limitations of Actions: Contractors and Subcontractors. Claims
of defective construction brought against builders and contractors are
governed by the limitations periods set out in Neb. Rev. Stat. § 25-223(Reissue 2016), whether the claims are based on theories of contract,
tort, fraud, or breach of warranty.
7. Statutes. The interpretation of a statute presents a question of law.
8. Statutes: Legislature: Intent. When construing a statute, a court must
determine and give effect to the purpose and intent of the Legislature
as ascertained from the entire language of the statute considered in its
plain, ordinary, and popular sense.
9. Statutes: Courts. A court must reconcile different provisions of the
statute so they are consistent, harmonious, and sensible.
10. Statutes: Intent. In construing a statute, the court must look at the
statutory objective to be accomplished, the problem to be remedied,
or the purpose to be served, and then place on the statute a reasonable
construction which best achieves the purpose of the statute, rather than
a construction defeating the statutory purpose.
11. Products Liability: Limitations of Actions. Nebraska’s product liabil-
ity statute of repose in Neb. Rev. Stat. § 25-224(2)(a) (Reissue 2016)
contemplates a single state of manufacture for each product and a single
statute of repose for each product.
12. ____: ____. For purposes of the product liability statute of repose in
Neb. Rev. Stat. § 25-224(2)(a) (Reissue 2016), it is immaterial where
the product’s various component parts were manufactured; a claim
brought against the manufacturer of a component part will be governed
by the same repose period as applies to the manufacturer of the com-
pleted product.
13. Products Liability: Limitations of Actions: Words and Phrases.
Reference to “the product” in Neb. Rev. Stat. § 25-224(2)(a)(i) and (ii)
(Reissue 2016) means the product that was placed on the market and
sold to the consumer for use or consumption, and it necessarily includes
the product’s original component parts.
14. Products Liability: Limitations of Actions. Ordinarily, deciding
whether a product liability action is barred by the statute of repose
in Neb. Rev. Stat. § 25-224(2)(a) (Reissue 2016) will not require the
court to consider the merits of the particular claim at all, because the
statute of repose operates as a statutory bar independent of the merits of
the action.
Appeal from the District Court for Lancaster County: Kevin
R. McManaman, Judge. Affirmed.
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Nebraska Supreme Court Advance Sheets
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AG VALLEY CO-OP v. SERVINSKY ENGR.
Cite as 311 Neb. 665John P. Weis and Andrew D. Wurdeman, of Wolfe, Snowden,
Hurd, Ahl, Sitzmann, Tannehill & Hahn, L.L.P., for appellant.
Terry J. Grennan and Michael R. Faz, of Cassem, Tierney,
Adams, Gotch & Douglas, for appellee Servinsky Engineering,
PLLC.
Daniel L. Lindstrom and Elizabeth J. Klingelhoefer, of
Jacobsen, Orr, Lindstrom & Holbrook, P.C., L.L.O., for appel-
lee Johnson System, Inc.
Brenna Marie Grasz, Gary Nedved, and Christopher Gruber,
of Keating, O’Gara, Nedved & Peter, P.C., L.L.O., for appellee
Heartland Building Systems, Inc.
Andre R. Barry, Jennie A. Kuehner, and Kevin J. Schneider,
of Cline, Williams, Wright, Johnson & Oldfather, L.L.P., for
appellee Chief Industries, Inc.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
and Freudenberg, JJ., and Weimer, District Judge.
Stacy, J.
This case arises from the 2017 collapse of a premanufac-
tured grain bin that was constructed and put into service in
2007. In 2018, the owner of the grain bin filed suit against
multiple defendants, alleging the collapse was due to defects in
designing, manufacturing, and constructing the grain bin. In a
series of orders, the district court granted summary judgment
in favor of the defendants. It dismissed the claim against the
general contractor as barred by the statute of repose in Neb.
Rev. Stat. § 25-223 (Reissue 2016). It dismissed the product
liability claim against the manufacturers as barred by the
statute of repose in Neb. Rev. Stat. § 25-224(2)(a)(i) (Reissue
2016). And it dismissed the product liability claim against
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
AG VALLEY CO-OP v. SERVINSKY ENGR.
Cite as 311 Neb. 665an engineering firm after finding the firm was not involved in
the design or manufacturing of the subject grain bin.
The owner of the grain bin appeals, arguing primarily that
the district court did not apply the correct statutes of repose
to the various claims. Finding no merit to the assignments of
error, we affirm.
I. BACKGROUND
1. Parties
Ag Valley Cooperative, Non-Stock (Ag Valley), is a coopera­
tive corporation organized and existing under Nebraska law. It
is an agricultural producer-owned cooperative engaged in the
buying, selling, and storing of grain, farm products, and farm-
ing inputs.
Chief Industries, Inc. (Chief), is a Delaware corporation
with its principal place of business in Nebraska. One of its
divisions, headquartered in Kearney, Nebraska, is engaged in
the business of designing, manufacturing, and constructing
metal buildings, including grain bin storage facilities and com-
ponents thereof.
Heartland Building Systems, Inc. (Heartland), is a Nebraska
corporation engaged in the business of constructing, designing,
and installing grain bin systems and components for grain bin
storage. Heartland is a dealer for Chief.
At all relevant times, Johnson System, Inc. (Johnson), was
a Michigan corporation engaged in the business of designing,
manufacturing, and selling grain bin structures and component
parts. And Servinsky Engineering, PLLC (Servinsky), was a
company that provided structural engineering consulting serv­
ices to Johnson.
2. Grain Bin
In late January 2007, Ag Valley contracted with Heartland
to serve as the general contractor for the construction of a
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AG VALLEY CO-OP v. SERVINSKY ENGR.
Cite as 311 Neb. 665grain storage facility in Edison, Nebraska. The Edison facil-
ity included several grain bins, one of which was a “Chief
Titan ‘Agri-Dome’” model CB50-15, which Heartland ordered
directly from Chief. For ease of reference, we will refer to the
subject grain bin as the “Titan model CB50.”
Chief designed and manufactured the primary components
of the Titan model CB50 at its facility in Kearney, includ-
ing the curved sidewall panels, the roof structure, and the
metal stiffeners that ran vertically along the sidewalls to add
strength. The Titan model CB50 sold to Ag Valley was cus-
tomized to include specific features for the Edison facility,
including a feature the parties refer to as a “skid loader door.”
This door was approximately 7 feet wide and 8 feet tall, and
it allowed a skid loader to enter the base of the bin to assist
in emptying residual grain. To accommodate the skid loader
door, Chief designed and manufactured the Titan model CB50
using shorter sidewall sheets, and it designed and fabricated
two base plates to add horizontal strength to the sill of the skid
loader door.
At Chief’s request, the skid loader door itself was designed
and manufactured by Johnson, specifically for incorpora-
tion into the Titan model CB50 being manufactured for the
Edison facility. Johnson manufactured the door at its facility in
Michigan in May and June 2007, and then shipped the compo-
nent part directly to Chief in Kearney. Chief then shipped the
entire Titan model CB50, with all of its component parts and
instructions for assembly and installation, to Heartland’s con-
struction site in Edison.
Heartland’s subcontractors completed installation and con-
struction of the Titan model CB50 on July 4, 2007. During
construction, the bin was anchored to a concrete foundation,
and when completed, the bin was 155 feet in diameter and
could store over 1 million bushels of grain. The following
exhibit depicts the Edison facility with the Titan model CB50
and the skid loader door in the foreground:
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Nebraska Supreme Court Advance Sheets
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AG VALLEY CO-OP v. SERVINSKY ENGR.
Cite as 311 Neb. 665Construction on Ag Valley’s Edison facility was completed
on November 1, 2007, and the Titan model CB50 was placed
into service. Final payment on the construction project was
made by Ag Valley to Heartland on November 30. The Titan
model CB50 was full of grain when it collapsed without warn-
ing almost 10 years later, on August 6, 2017.
3. Operative Complaint
On March 20, 2018, Ag Valley filed this lawsuit in the dis-
trict court for Lancaster County, seeking damages in excess
of $8 million from multiple defendants allegedly involved in
designing, manufacturing, and constructing the grain storage
facility. We summarize the allegations of the operative second
amended complaint only as relevant to the issues and the par-
ties before us on appeal.
Ag Valley styled its only claim against Heartland as one
based in contract. The operative complaint alleged that
Heartland, as the general contractor, “breached its agreement
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AG VALLEY CO-OP v. SERVINSKY ENGR.
Cite as 311 Neb. 665to properly design and construct the grain bin facility in a
workman like manner” and “failed to provide Ag Valley with
a properly designed and usable grain bin which would safely
withstand the loads placed upon it by grain to be stored in the
facility as contemplated in the agreement.”
Ag Valley asserted product liability claims against Chief,
Johnson, and Servinsky. The complaint alleged, collectively,
that each of these defendants was strictly liable in tort as a
result of designing, manufacturing, and selling a dangerous
and unsafe product and that each defendant was negligent
in “incorporating into [the] grain bin facility the skid loader
door.” More specifically, the complaint alleged:
The grain bin storage system was unreasonably danger-
ous for its intended use and failed to work as safely as an
ordinary consumer would expect when used in a manner
intended by the manufacturer or reasonably foreseeable
by the manufacturer. The Defendants placed the grain
bin storage system on the market when they knew, or in
the exercise of reasonable care, should have known the
grain bin storage system was defective, unreasonably
dangerous, and unsafe. The skid loader drive door system
incorporated into the grain bin storage facility was defec-
tive when the [Titan model CB50] left the possession of
. . . Chief . . . .
The complaint alleged the specific defects which “caused or
contributed to the failure” of the Titan model CB50 included (1)
the skid loader door system and its component parts that were
insufficient to withstand normal operational forces created by
storing grain in the bin and (2) the doorframe and the “flexible
grain bin walls [that] were not properly designed to withstand
normal operational forces.” The complaint also alleged Chief,
Johnson, and Servinsky were negligent in “utilizing a skid
loader door assembly that was not compatible with the grain
bin wall” and that had not been adequately tested.
At different points in the litigation, Servinsky, Heartland,
Chief, and Johnson all moved for summary judgment.
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AG VALLEY CO-OP v. SERVINSKY ENGR.
Cite as 311 Neb. 6654. Summary Judgment to Servinsky
Servinsky moved for summary judgment on the merits of the
product liability claim, asserting that it had “no involvement
in the project which is the subject matter of [the] Complaint
and, therefore . . . no duty to the plaintiff.” The district court
granted Servinsky’s motion, finding the evidence was undis-
puted that Servinsky neither “designed, [nor] manufactured any
component[] parts or assisted in any manner with regard to the
site specific” Titan model CB50 that collapsed.
5. Summary Judgment to Heartland
Heartland’s motion for summary judgment asserted that Ag
Valley’s claim against Heartland was barred by the 10-year
statute of repose set out in § 25-223, which provides in rele­
vant part:
In no event may any action be commenced to recover
damages for an alleged breach of warranty on improve-
ments to real property or deficiency in the design, plan-
ning, supervision, or observation of construction, or con-
struction of an improvement to real property more than
ten years beyond the time of the act giving rise to the
cause of action.
The district court agreed that Ag Valley’s claim against
Heartland was governed by § 25-223, and it determined the
10-year repose period commenced running in November 2007.
Because Ag Valley’s lawsuit was filed more than 10 years later,
the court concluded the claim against Heartland was barred
by the statute of repose, and it granted summary judgment in
Heartland’s favor.
6. Summary Judgment to
Chief and Johnson
At separate times, Chief and Johnson each moved for sum-
mary judgment, arguing the product liability claims against
them were barred by the 10-year statute of repose in § 25-224,
which provides in pertinent part:
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
AG VALLEY CO-OP v. SERVINSKY ENGR.
Cite as 311 Neb. 665(2)(a) Notwithstanding subsection (1) of this section or
any other statutory provision to the contrary, any product
liability action . . . shall be commenced as follows:
(i) For products manufactured in Nebraska, within ten
years after the date the product which allegedly caused
the personal injury, death, or damage was first sold or
leased for use or consumption; or
(ii) For products manufactured outside Nebraska,
within the time allowed by the applicable statute of
repose, if any, of the state or country where the product
was manufactured, but in no event less than ten years. If
the state or country where the product was manufactured
does not have an applicable statute of repose, then the
only limitation upon the commencement of an action for
product liability shall be as set forth in subsection (1) of
this section.
Chief moved for summary judgment before Johnson did, and
Chief’s motion was taken up first. In opposing Chief’s motion,
Ag Valley offered the affidavit of its expert, Chris Wortmann,
a licensed physical engineer who inspected the grain bin after
the collapse. Wortmann’s affidavit set out his opinion on the
cause of the bin collapse. Summarized, Wortmann’s testimony
identified several deficiencies in how Johnson designed and
manufactured the skid loader door assembly, and he identi-
fied several deficiencies in how Chief incorporated the door
system into the grain bin, including how the doorframe was
attached to the metal sheets of the bin system. Ultimately, it
was Wortmann’s opinion that “[i]f the skid loader door system
had not been installed, [the] grain bin would not have sustained
a catastrophic failure.”
Ag Valley relied on Wortmann’s opinions to argue that
for purposes of the repose period in § 25-224, the “product
which allegedly caused the personal injury, death, or damage” 1
was the skid loader door, not the Titan model CB50 system.
And, because the skid loader door had been manufactured
1
§ 25-224(2)(a)(i).
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AG VALLEY CO-OP v. SERVINSKY ENGR.
Cite as 311 Neb. 665by Johnson in Michigan, Ag Valley argued that Michigan’s
statute of repose should be applied to the product liability
claim, rather than Nebraska’s.
In separate orders, the court granted summary judgment in
favor of Chief and Johnson. In both orders, the district court
examined the product liability allegations in Ag Valley’s com-
plaint—and the evidence adduced—and determined “the prod-
uct” for purposes of applying § 25-224 was the Titan model
CB50 system, and not just the skid loader door incorporated
therein. The court found the Titan model CB50 system was
manufactured by Chief in Nebraska, and it applied the 10-year
repose period set out in § 25-224(2)(a)(i). It found the Titan
model CB50 system was first sold to Ag Valley for use no
later than November 1, 2007 (the date the grain facility was
placed into service), and concluded that because the product
liability claims against Chief and Johnson were filed more than
10 years after that date, the claims were barred by the statute
of repose.
In its summary judgment order as to Chief, the district court
also made an alternative finding that even if the relevant prod-
uct for purposes of the statute of repose was considered to be
just the skid loader door, the applicable Michigan statute of
repose still barred Ag Valley’s claim. Because this opinion does
not ultimately address the court’s alternative finding, we do not
elaborate on the court’s alternative reasoning.
7. Other Parties Dismissed
During the course of the litigation, all other named defend­
ants were dismissed. As such, when the court entered summary
judgment in favor of Johnson on September 1, 2020, that order
had the effect of resolving all remaining claims and issues
before the district court. Ag Valley filed this timely appeal,
which we moved to our docket on our own motion.
II. ASSIGNMENTS OF ERROR
Ag Valley assigns, consolidated and restated, that the
district court erred by (1) granting summary judgment to
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AG VALLEY CO-OP v. SERVINSKY ENGR.
Cite as 311 Neb. 665Servinsky when there was a genuine issue of material fact
regarding the extent of Servinsky’s involvement in design-
ing the skid loader door; (2) applying the statute of repose in
§ 25-223, rather than § 25-224, to Ag Valley’s claim against
Heartland; and (3) resolving a disputed question of material
fact on summary judgment “by deciding as a matter of law
what the relevant product was for purposes of” the statute of
repose in § 25-224(2)(a).
III. STANDARD OF REVIEW
[1] An appellate court affirms a lower court’s grant of sum-
mary judgment if the pleadings and admitted evidence show
that there is no genuine issue as to any material facts or as
to the ultimate inferences that may be drawn from the facts
and that the moving party is entitled to judgment as a mat-
ter of law. 2 In reviewing a summary judgment, an appellate
court views the evidence in the light most favorable to the
party against whom the judgment was granted, and gives that
party the benefit of all reasonable inferences deducible from
the evidence. 3
[2] Statutory interpretation presents a question of law
which an appellate court reviews independently of the lower
court. 4
[3] The determination of which statute of repose applies is a
question of law. 5
2
Bohling v. Bohling, 309 Neb. 625, 962 N.W.2d 224 (2021).
3
Id.4
Porter v. Knife River, Inc., 310 Neb. 946, 970 N.W.2d 104 (2022). See
Moore v. Nebraska Acct. & Disclosure Comm., 310 Neb. 302, 965 N.W.2d
564 (2021).
5
See, Hike v. State, 297 Neb. 212, 899 N.W.2d 614 (2017); Spilker v. City
of Lincoln, 238 Neb. 188, 469 N.W.2d 546 (1991). See, also, Ehrenfelt
v. Janssen Pharmaceuticals, Inc., 737 Fed. Appx. 262 (6th Cir. 2018)
(holding which statute of repose applies is discrete, purely legal issue
based on principles of statutory interpretation).
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AG VALLEY CO-OP v. SERVINSKY ENGR.
Cite as 311 Neb. 665IV. ANALYSIS
1. Claim Against Servinsky
Properly Dismissed
Ag Valley’s operative complaint alleged identical theories
of strict liability and negligence against Servinsky, Chief, and
Johnson. In moving for summary judgment, Servinsky asserted
that it had no involvement in designing or manufacturing either
the Titan model CB50 system or the skid loader door incor-
porated into that system and that therefore, it was entitled to
judgment as a matter of law.
[4] The party moving for summary judgment must make a
prima facie case by producing enough evidence to show that
the movant is entitled to judgment if the evidence were uncon-
troverted at trial. 6 If the party moving for summary judgment
makes a prima facie case, the burden shifts to the nonmovant
to produce evidence showing the existence of a material issue
of fact that prevents judgment as a matter of law. 7
In support of summary judgment, Servinsky offered the
affidavit of its owner, who stated that Servinsky had a consult-
ing agreement with Johnson “based on a project by project
retention,” but that Johnson never asked Servinsky to pro-
vide engineering services for the construction project at the
Edison facility. Servinsky’s owner specifically averred that
Servinsky “did not either design or manufacture[] component
parts or assist in any manner with regard to the site spe-
cific [Titan model CB50] which was constructed in Edison,
Nebraska.” As support for the statement that Servinsky did
not provide engineering services regarding the subject door,
the owner’s affidavit pointed out that Johnson’s project draw-
ings of the subject skid loader door, dated May 15, 2007,
“were not prepared, approved or stamped for construction by
Servinsky nor any other structural engineer for the site spe-
cific project.” This evidence, if uncontroverted, was sufficient
6
Dondlinger v. Nelson, 305 Neb. 894, 942 N.W.2d 772 (2020).
7
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
AG VALLEY CO-OP v. SERVINSKY ENGR.
Cite as 311 Neb. 665to make out a prima facie case entitling Servinsky to judg-
ment as a matter of law on the product liability claims alleged
by Ag Valley.
In an effort to create a genuine issue of material fact regard-
ing Servinsky’s involvement in the design of the subject skid
loader door, Ag Valley offered the affidavit of the former
owner of Johnson, who averred that “for many years, begin-
ning in the early 1990s” Servinsky provided “professional
engineering services” to Johnson for the development of its
“product lines.” The affidavit stated generally that Johnson
utilized Servinsky’s engineering services in 2007, but did not
say for which project. The affidavit also stated generally that
Servinsky had calculated stress loads for “skid loader doors
and for other [Johnson] products.” But the affidavit did not
include facts which controverted Servinsky’s evidence that it
provided no engineering services for the “site specific” skid
loader door, or for any other component part of the Titan model
CB50 installed at the Edison facility. On appeal, Ag Valley
cites us to portions of deposition testimony given by Johnson’s
former owner, but that deposition was not offered or received
into evidence in opposition to Servinsky’s motion for summary
judgment, and thus, it has no bearing on the correctness of the
court’s summary judgment ruling.
On the evidence adduced, the district court found there was
no genuine factual dispute that “Servinsky did not design, man-
ufacture component parts[,] or assist in any manner with regard
to the site specific 155′ diameter tank which . . . is the subject
matter of this case.” Servinsky’s motion for summary judg-
ment was therefore granted, and the claims against Servinsky
were dismissed.
On appeal, Ag Valley contends this was error, arguing there
was a factual dispute over the extent of Servinsky’s involve-
ment with the design of the skid loader door which should
have precluded summary judgment. Ag Valley points to evi-
dence that Servinsky’s engineering services included calculat-
ing stress loads for Johnson products and component parts
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AG VALLEY CO-OP v. SERVINSKY ENGR.
Cite as 311 Neb. 665and to evidence that Servinsky provided engineering services
to Johnson during the same calendar year the subject skid
loader door was manufactured. From this evidence, Ag Valley
suggests it is reasonable to infer that Servinsky may have
been “responsible for any number of design decisions, includ-
ing possibilities such as the underlying door design, or the
specifications of materials,” 8 and that Servinsky “could have
designed the skid loader door system that was manufactured
and sold” by Johnson. 9
[5] Conclusions based on guess, speculation, conjecture, or
a choice of possibilities do not create material issues of fact
for purposes of summary judgment. 10 Even viewed in the light
most favorable to Ag Valley and giving Ag Valley the benefit
of all reasonable inferences deducible from the evidence, 11 the
general statements in the affidavit offered by Ag Valley sug-
gesting Servinsky “could have designed” the skid loader door
system at issue amount to sheer speculation and do not create
a genuine issue of fact. In other words, Servinsky’s evidence
that it had no involvement in the design or manufacturing of
the skid loader door or any other component part of the Titan
model CB50 sold to Ag Valley stands uncontroverted. On this
record, the district court correctly concluded that Servinsky
was entitled to summary judgment as a matter of law on
Ag Valley’s product liability claim. 12
2. Claim Against Heartland Barred by
Statute of Repose in § 25-223
Heartland was the general contractor for the Edison grain
facility construction project, including installation of the
8
Brief for appellant at 37-38.
9
Id. at 38.
10
Bohling, supra note 2; Dondlinger, supra note 6.
11
See Bohling, supra note 2.
12
Accord Marksmeier v. McGregor Corp., 272 Neb. 401, 722 N.W.2d 65(2006).
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AG VALLEY CO-OP v. SERVINSKY ENGR.
Cite as 311 Neb. 665Titan model CB50 system. It is undisputed that Heartland
completed construction on the Edison facility on November 1,
2007, and that Ag Valley issued final payment on the project
on November 30. The Titan model CB50 collapsed on August
6, 2017, and Ag Valley filed suit on March 20, 2018. The
district court applied the 10-year statute of repose set out in
§ 25-223 and concluded Ag Valley’s claim against Heartland
was barred.
On appeal, Ag Valley generally concedes that if the district
court was correct in applying the 10-year statute of repose in
§ 25-223, which governs builders and contractors, its claim
against Heartland is barred. But Ag Valley argues the district
court should have applied the product liability statute of repose
in § 25-224. We disagree.
Section 25-224 applies to “all product liability actions,” and
Neb. Rev. Stat § 25-21,180 (Reissue 2016) defines a product
liability action as
any action brought against a manufacturer, seller, or
lessor of a product, regardless of the substantive legal
theory or theories upon which the action is brought, for
or on account of personal injury, death, or property dam-
age caused by or resulting from the manufacture, con-
struction, design, formulation, installation, preparation,
assembly, testing, packaging, or labeling of any product,
or the failure to warn or protect against a danger or haz-
ard in the use, misuse, or intended use of any product, or
the failure to provide proper instructions for the use of
any product.
(Emphasis supplied.)
[6] Because the repose provisions in § 25-224 apply to
“product liability actions,” they necessarily apply to claims
against manufacturers, sellers, and lessors of products. 13
13
See, also, § 25-224(5) (providing that no product liability action alleging
strict liability in tort may be filed against seller “unless such seller is also
the manufacturer of such product or the manufacturer of the part thereof
claimed to be defective”).
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AG VALLEY CO-OP v. SERVINSKY ENGR.
Cite as 311 Neb. 665Heartland was not the manufacturer, seller, or lessor of the
Titan grain bin; it was the general contractor responsible for
installing and constructing the Titan model CB50 system. As
against Heartland, Ag Valley’s only claim was that Heartland
“breached its agreement to properly design and construct the
grain bin facility in a workman like manner.” When claims
of defective construction are brought against contractors and
builders, we have consistently applied the limitations periods
set out in § 25-223, whether the claims were based on theories
of contract, tort, fraud, or breach of warranty. 14 We find no
error in the district court’s application of § 25-223 to the claim
alleged against Heartland.
3. Product Liability Claims Against Chief
and Johnson Barred by Statute
of Repose in § 25-224
Ag Valley styled its identical claims against Chief and
Johnson as “product liability” claims, and neither Chief nor
Johnson dispute Ag Valley’s characterization of the Titan
model CB50 system as a product, rather than an improve-
ment to realty. For purposes of our statute of repose analysis,
we accept this characterization. 15 We have generally applied
the statute of repose in § 25-224(2)(a) to product liability
claims, even when the product was used in constructing
14
See, e.g., McCaulley v. C L Enters., 309 Neb. 141, 959 N.W.2d 225(2021); Fuelberth v. Heartland Heating & Air Conditioning, 307 Neb.
1002, 951 N.W.2d 758 (2020); Adams v. Manchester Park, 291 Neb. 978,
871 N.W.2d 215 (2015); Andres v. McNeil Co., 270 Neb. 733, 707 N.W.2d
777 (2005); Witherspoon v. Sides Constr. Co., 219 Neb. 117, 362 N.W.2d
35 (1985).
15
See Kubik v. Kubik, 268 Neb. 337, 683 N.W.2d 330 (2004) (noting
appellate court generally disposes of case on theory presented in dis­
trict court).
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Cite as 311 Neb. 665improvements to realty. 16 And while we are aware of author-
ity elsewhere which supports applying the statute of repose
for improvements to real property when a product liability
claim is brought against the manufacturer of a prefabricated
building which becomes an improvement to realty, 17 no party
has urged the adoption of similar reasoning in Nebraska.
We therefore leave for another day consideration of the
circumstances, if any, under which the builder’s statute of
repose in § 25-223 may apply to a claim against the manu-
facturer of an allegedly defective premanufactured building
16
See, Farber v. Lok-N-Logs, Inc., 270 Neb. 356, 701 N.W.2d 368 (2005)
(applying § 25-224 to product liability claim against manufacturers of
chemical wood preservatives and treated logs used in construction of
barracks); Murphy v. Spelts-Schultz Lumber Co., 240 Neb. 275, 481
N.W.2d 422 (1992) (applying § 25-224 to product liability claim against
designer/manufacturer/seller of allegedly defective roof trusses used to
construct home); Witherspoon, supra note 14 (holding § 25-224 applied to
product liability claim against manufacturer/supplier of allegedly defective
pipe used in home construction). But see Smith v. Butler Manuf. Co., 230
Neb. 734, 433 N.W.2d 493 (1988) (applying statute of repose in § 25-223,
rather than § 25-224, to claims of negligent design brought against
manufacturer of prefabricated hog confinement building).
17
See, Theunissen v. GSI Group, 109 F. Supp. 2d 505 (N.D. Miss. 2000)
(holding that product liability claim against designer and manufacturer of
grain bin structure and component parts was subject to construction statute
of repose because grain bin was improvement to real property); Two
Denver Highlands v. Stanley Structures, 12 P.3d 819 (Colo. App. 2000)
(applying construction statute of repose, not product liability statute of
repose, to claim against manufacturer of allegedly defective product used
in design and construction of improvement to real property); Bellemare
v. Gateway Builders, Inc., 420 N.W.2d 733 (N.D. 1988) (finding 10,000
bushel grain bin anchored to cement slab was improvement to real property,
not product, for purposes of statute of repose); Craftsman Builder’s Supply
v. Butler Mfg., 974 P.2d 1194 (Utah 1999) (applying builder’s statute of
repose, not product liability statute of repose, to product liability claim
against manufacturer of prefabricated metal building which collapsed
15 years after it was installed). But see Sonnier v. Chisholm-Ryder Co.,
Inc., 909 S.W.2d 475 (Tex. 1995) (holding builder’s statute of repose not
intended to grant repose to manufacturers of products annexed to realty).
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Cite as 311 Neb. 665that, once installed, is annexed to and becomes an improve-
ment to realty. 18
The parties agree that Ag Valley’s product liability claims
against Chief and Johnson should be governed by the statute
of repose in § 25-224. But they cannot agree how to define
“the product” at issue for purposes of that statute. Before sum-
marizing the parties’ arguments, we review the relevant statu-
tory scheme.
(a) § 25-224
In 1978, the Legislature amended § 25-224 to enact a
10-year statute of repose in product liability actions. 19 As
originally enacted, subsection (2) of that statute provided in
relevant part that “any product liability action [with an excep-
tion not relevant here] shall be commenced within ten years
after the date when the product which allegedly caused the
personal injury, death, or damage was first sold or leased
for consumption.” 20
We have said that the Legislature, by enacting the repose
provisions in § 25-224(2), has decided as a matter of policy
that “in the absence of [a] legislative exception, a prod-
uct liability defendant should not be subjected to liability
10 years after the product was first sold or leased for use
or consumption.” 21 We have noted the statute of repose in
§ 25-224(2) operates “‘as a statutory bar independent of
the action (or inaction) of the litigants—often before those
litigants can even be identified.’” 22 Once the repose period
18
See, generally, 122 A.L.R.5th 1 (2004); 4 American Law of Products
Liability 3d § 47:95 (2020).
19
See 1978 Neb. Laws, L.B. 489, codified as § 25-224(2)(a) (Cum. Supp.
1978).
20
§ 25-224(2) (Cum. Supp. 1978).
21
Farber, supra note 16, 270 Neb. at 367, 701 N.W.2d at 377.
22
Id., quoting Nesladek v. Ford Motor Co., 46 F.3d 734 (8th Cir. 1995).
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Cite as 311 Neb. 665in § 25-224(2) has lapsed, the manufacturer of the product
acquires “a substantive right protected by statute.” 23 Indeed,
the “effect of the 10-year statute of repose in § 25-224(2) can
be to prevent what might otherwise be a cause of action from
ever arising.” 24
The “triggering language” 25 under § 25-224(2)(a) requires
the court to determine when the product was “first sold or
leased for use or consumption.” We have said this occurs when
possession of the product is first surrendered or relinquished to
the consumer for use, not when the product is placed into the
stream of commerce. 26
In 2001, the Legislature amended the repose provisions in
§ 25-224(2) to distinguish between “products manufactured in
Nebraska” and “products manufactured outside Nebraska.” 27
Under the amended statute, products manufactured in Nebraska
are still subject to a 10-year statute of repose which begins
to run on the date “the product which allegedly caused the
personal injury, death, or damage was first sold or leased for
use or consumption.” 28 But for products manufactured outside
Nebraska, the court must determine if the state or country of
manufacture has an applicable statute of repose; if it does, that
repose period applies unless it is shorter than 10 years. 29 And
if the state or country where the product was manufactured
has no applicable statute of repose, then there is no repose
period under § 25-224(2)(a)(ii); in that event, the only time
23
Id. at 366, 701 N.W.2d at 376.
24
Id. See Gillam v. Firestone Tire & Rubber Co., 241 Neb. 414, 489 N.W.2d
289 (1992).
25
Farber, supra note 16, 270 Neb. at 362, 701 N.W.2d at 374.
26
See Farber, supra note 16; Witherspoon, supra note 14.
27
2001 Neb. Laws, L.B. 489, § 1.
28
§ 25-224(2)(a)(i) (Reissue 2016).
29
See § 25-224(2)(a)(ii).
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Cite as 311 Neb. 665limit applicable to the plaintiff’s action will be the 4-year stat-
ute of limitations set out in § 25-224(1). 30
(b) Summary of Parties’ Arguments
In this appeal, the parties agree that the skid loader door is a
component part of the Titan model CB50 system that was sold
to Ag Valley, and not a stand-alone product sold to Ag Valley.
They also agree that Chief manufactured the Titan model CB50
system in Nebraska and that Johnson manufactured the skid
loader door in Michigan. But the parties do not agree whether,
for purposes of applying the statute of repose, “the product”
under consideration is the Titan model CB50 system with all
its component parts or the skid loader door individually. They
describe this as a dispute over “the relevant product” 31 for pur-
poses of § 25-224(2). And they generally approach the issue
as one to be resolved based on the pleadings and the evidence
of causation.
Chief and Johnson contend the relevant product is the entire
Titan model CB50 system. They point out that Ag Valley’s
operative complaint, and its expert witness, describe defects
not just involving the skid loader door, but also involving
how that component part was incorporated into the rest of the
product. Because the Titan model CB50 system was manu-
factured in Nebraska, Chief and Johnson argue this product
liability action is governed by the 10-year repose period in
§ 25-224(2)(a)(i), which began to run on the date the product
was first sold for use or consumption. Because Ag Valley
paid for and began using the Titan model CB50 system in
November 2007, they contend the 10-year repose period had
expired by the time Ag Valley filed its product liability action
in March 2018.
30
Id.
31
See, brief for appellant at 14; brief for appellee Chief at 15; brief for
appellee Johnson at 23.
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Cite as 311 Neb. 665Seeking to avoid Nebraska’s 10-year repose period,
Ag Valley contends the relevant product is not the entire Titan
model CB50 system, but just the skid loader door which was
manufactured in Michigan. Ag Valley argues that its pleadings
and its evidence show that the skid loader door is the defective
condition that proximately caused the bin to collapse, and it
argues that both Chief and Johnson were responsible for this
defective condition. Ag Valley argues that Michigan has not
enacted a specific product liability statute of repose, so the
only time limit on commencing this product liability claim is
the 4-year statute of limitations which commenced running on
the date the damage occurred. 32 Because Ag Valley’s March
2018 complaint was filed within 4 years after the grain bin
collapse, Ag Valley argues that its product liability action was
timely filed.
The district court generally agreed with Chief and Johnson,
and it held that for purposes of the product liability stat-
ute of repose in § 25-224(2)(a), the relevant product is the
entire Titan model CB50 system, including all its component
parts. Ag Valley assigns this as error, arguing that when the
court determined the relevant product was the grain bin as
a whole, it improperly decided a disputed question of fact.
We disagree.
[7] Although the parties and the district court generally
approached identifying the relevant product as a matter to be
determined from the pleadings and the evidence on causation,
we view it instead as a matter of statutory construction. The
parties’ disagreement turns on the meaning of “the product”
as that term is used in § 25-224(2)(a)(i) and (ii). And thus,
the interpretation of a statute presents a question of law, not a
question of fact. 33
32
See § 25-224(2)(a)(ii).
33
See Whittle v. State, 309 Neb. 695, 962 N.W.2d 339 (2021) (statutory
interpretation question of law).
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Cite as 311 Neb. 665(c) Meaning of “[T]he [P]roduct”
Both subsections (a)(i) and (a)(ii) of § 25-224(2) refer to
“the product” without expressly defining the term. We have
applied the § 25-224(2) repose period in many cases over the
past 40 years, and our opinions often describe “the product” at
issue, without explaining how we identified it. 34 Until this case,
identifying the product for purposes of § 25-224(2) was simply
not a matter of controversy. In this appeal, the parties’ compet-
ing definitions of “the product” present us with a question of
statutory interpretation.
[8-10] When construing a statute, a court must determine
and give effect to the purpose and intent of the Legislature as
ascertained from the entire language of the statute considered
in its plain, ordinary, and popular sense. 35 A court must recon-
cile different provisions of the statute so they are consistent,
harmonious, and sensible. 36 And in construing a statute, the
court must look at the statutory objective to be accomplished,
the problem to be remedied, or the purpose to be served, and
then place on the statute a reasonable construction which
34
See, e.g., Marksmeier, supra note 12, 272 Neb. at 406, 722 N.W.2d at
68 (describing product at issue as “T-shirt”); Farber, supra note 16, 270
Neb. at 360, 701 N.W.2d at 372-73 (describing products at issue as “liquid
penta” and “penta-treated logs”); Divis v. Clarklift of Nebraska, 256 Neb.
384, 385, 590 N.W.2d 696, 698 (1999) (describing product at issue as
“forklift”); Radke v. H. C. Davis Sons’ Mfg. Co., 241 Neb. 21, 22, 486
N.W.2d 204, 205 (1992) (describing product at issue as “‘Davis Precision
Mix Batch Mixer, Model No. S-20’”); Gillam, supra note 24, 241 Neb.
at 415, 489 N.W.2d at 291 (describing product at issue as “‘RH5 degree’
multipiece wheel” which “consisted of two components”); Spilker, supra
note 5, 238 Neb. at 190, 469 N.W.2d at 547 (describing product at issue as
“outdoor switchgear equipment”); Witherspoon, supra note 14, 219 Neb.
at 118, 362 N.W.2d at 38 (describing product at issue as “pipe supplying
water to . . . house”).
35
Moore, supra note 4.
36
See id.
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Cite as 311 Neb. 665best achieves the purpose of the statute, rather than a construc-
tion defeating the statutory purpose. 37
As originally enacted in 1978, the repose provisions in
§ 25-224(2) provided that any product liability action, except
one governed by the Uniform Commercial Code, “shall be
commenced within ten years after the date when the product
which allegedly caused the personal injury, death, or dam-
age was first sold or leased for use or consumption.” 38 Since
its amendment in 2001, § 25-224(2)(a) has distinguished
between products manufactured in Nebraska and products
manufactured outside Nebraska, but for products manufac-
tured in Nebraska the statute still provides that any product
liability action shall be commenced “within ten years after
the date the product which allegedly caused the personal
injury, death, or damage was first sold or leased for use
or consumption.” 39
Because Nebraska’s statute of repose has always been trig-
gered not by the nature of the alleged defects or the proxi-
mate cause of the alleged injuries, but by when the product
was first relinquished to the consumer for use, there has never
been any question that when § 25-224(2) references “the
product which allegedly caused the personal injury, death,
or damage,” it is referring to the product that was placed on
the market and sold or leased to the consumer for use. This
commonsense understanding of “the product” is consistent
with our use of the term in prior cases applying the statute
of repose, 40 and it is consistent with how we have described
“the product” when reciting the material elements of a product
liability claim based on an alleged defective condition:
37
McCoy v. Albin, 298 Neb. 297, 903 N.W.2d 902 (2017).
38
§ 25-224(2) (Cum. Supp. 1978).
39
§ 25-224(2)(a)(i) (Reissue 2016).
40
See cases cited supra note 34.
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Cite as 311 Neb. 665In a products liability action based on defect, a plain-
tiff must prove by a preponderance of the evidence that
(1) the defendant placed the product on the market for
use and knew, or in the exercise of reasonable care
should have known, that the product would be used
without inspection for defects; (2) the product was in
a defective condition when it was placed on the market
and left the defendant’s possession; (3) the defect is the
proximate or a proximately contributing cause of the
plaintiff’s injury [or damage] sustained while the prod-
uct was being used in a way and for the general purpose
for which it was designed and intended; (4) the defect,
if existent, rendered the product unreasonably danger-
ous and unsafe for its intended use; and (5) the plain-
tiff’s damages were a direct and proximate result of the
alleged defect. 41
Construing “the product” as used in § 25-224(2)(a) to mean
the product that was placed on the market and sold or
leased for consumer use is also consistent with how the term
“product” is used elsewhere in Nebraska’s product liability
statutes. 42
Moreover, when “the product” in § 25-224(2)(a)(i) and
(ii) is properly understood to refer to the completed product
that was placed on the market and sold or leased for con-
sumer use, it necessarily includes all of the product’s original
41
Pitts v. Genie Indus., 302 Neb. 88, 99, 921 N.W.2d 597, 609 (2019)
(emphasis supplied).
42
See, e.g., § 25-21,180; Neb. Rev. Stat. § 25-21,181 (Reissue 2016); Neb.
Rev. Stat. § 25-21,182 (Reissue 2016).
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Cite as 311 Neb. 665component parts. 43 We see nothing to suggest that when
the Legislature amended § 25-224(2) in 2001 to distinguish
between products manufactured in Nebraska and products man-
ufactured outside Nebraska, it intended to change the meaning
of “the product” for purposes of the statute of repose. The
senator who introduced the 2001 amendments to § 25-224(2)
explained that the purpose of the amendments was to
maintain that ten-year limitation for products that are
manufactured in Nebraska, but . . . apply the statute of
repose for products manufactured outside of Nebraska
from the jurisdiction where the products were manufac-
tured. . . . If other states do not care to extend to their
manufacturers [the protection of] a statute of repose and
we do, then why should our Nebraska consumers not
benefit from the application of this concept? Nebraska’s
manufacturers will not be harmed in the least. There is no
detriment to them. But our consumers, injured plaintiffs,
will have the benefit of a broader reach . . . . 44
As such, the legislative intent in amending § 25-224(2) was to
ensure that Nebraska manufacturers continue to be protected
by a 10-year repose period when sued in a product liability
action, but to allow Nebraska consumers to benefit from a
43
See, e.g., Gillam, supra note 24, 241 Neb. at 415, 489 N.W.2d at
291 (describing allegedly defective product as “‘RH5 degree’ multipiece
wheel” and noting product consisted of “two components” manufactured
by different companies); Spilker, supra note 5, 238 Neb. at 190, 469
N.W.2d at 547 (describing product as “outdoor switchgear equipment”
and describing defective condition as instruction book which misidentified
live high-voltage receptacle as de-energized). Accord Chief Indus. v. Great
Northern Ins. Co., 268 Neb. 450, 683 N.W.2d 374 (2004) (finding no error
in district court’s conclusion that component parts manufactured by third
parties were part of manufacturer’s “product” for purposes of insurance
coverage in product liability suit following grain bin collapse).
44
Floor Debate, L.B. 489, Judiciary Committee, 97th Leg., 1st Sess. 3844
(Apr. 3, 2001) (remarks of Senator Kermit Brashear).
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Cite as 311 Neb. 665l­ onger repose period, or perhaps no repose period at all, when
the product was manufactured outside Nebraska.
This legislative intent would be defeated by a construction of
§ 25-244(2)(a) which focuses on the state where the allegedly
defective component parts were manufactured, rather than the
state where the completed product was manufactured. Under
the statutory construction urged by Ag Valley, a Nebraska
manufacturer could be deprived of the 10-year statute of repose
simply by incorporating an allegedly defective component
part manufactured in another state or country. And arguably,
under Ag Valley’s construction, a single product placed on the
market could be subject to several different repose periods,
depending on where the allegedly defective component parts
were manufactured.
[11] We have no doubt that when the Legislature amended
§ 25-224(2) to differentiate between repose periods for “prod-
ucts manufactured in Nebraska” 45 and “products manufactured
outside Nebraska,” 46 it was fully aware that products manufac-
tured in Nebraska often incorporate component parts manu­
factured elsewhere. But despite this reality, the plain language
of § 25-224(2)(a) describes a binary choice: “the product”
which allegedly caused the injury or damage was either manu-
factured in Nebraska or it was not. Nebraska’s product liability
statute of repose in § 25-224(2)(a) thus contemplates a single
state of manufacture for each product and a single statute of
repose for each product.
[12] If the Legislature had wanted the focus of Nebraska’s
statute of repose to turn on where an allegedly defective com-
ponent part was manufactured, rather than where the completed
product was manufactured, it could have done so. Instead,
Nebraska’s product liability statute of repose has always been
focused on the completed product that was placed on the
45
§ 25-224(2)(a)(i).
46
§ 25-224(2)(a)(ii).
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Cite as 311 Neb. 665market and sold or leased to the consumer. For purposes of
Nebraska’s statute of repose, it is immaterial where the prod-
uct’s various component parts were manufactured; a claim
brought against the manufacturer of a component part will be
governed by the same repose period as applies to the manufac-
turer of the completed product.
[13] To the extent it was not already apparent from the
plain language of the statute and our prior cases, we expressly
hold that reference to “the product” in § 25-224(2)(a)(i) and
(ii) means the product that was placed on the market and sold
to the consumer for use or consumption, and it necessarily
includes the product’s original component parts. This con-
struction is consistent with the plain language of the statute,
serves to harmonize the various statutory provisions governing
product liability claims, and places on the term a reasonable
construction which best achieves the purpose of the statute
of repose.
[14] We therefore reject Ag Valley’s atomistic definition
of “the product,” which focuses on the individual compo-
nent part or parts of the product alleged to be defective. We
also necessarily reject any suggestion that the nature of the
alleged defect or the proximate cause of the plaintiff’s injury
or damage can alter the statutory meaning of “the prod-
uct.” Ordinarily, deciding whether a product liability action
is barred by the statute of repose will not require the court to
consider the merits of the particular claim at all, because the
statute of repose operates as a statutory bar independent of
the merits of the action. 47 Given the purpose of the product
liability statute of repose, our cases applying § 25-224(2) have
generally not required judicial analysis of the alleged defects
or dangerous conditions, or determination of what proximately
caused the plaintiff’s injury or damage. Indeed, except where
it was necessary to decide whether the 10-year repose period
47
See Farber, supra note 16.
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Cite as 311 Neb. 665began to run anew after the manufacturer refurbished the
product, 48 our cases applying § 25-224(2) to bar a plaintiff’s
product liability action have not turned on the merits of the
particular claim at all. 49
We therefore find no merit to Ag Valley’s assignment that
the district court erred by concluding the relevant product, for
purposes of applying the statute of repose in § 25-224(2)(a),
was the Titan model CB50 system, including all its compo-
nent parts. In this case, the district court correctly identi-
fied the relevant product as the Titan model CB50 system.
That was the product Chief placed on the market and sold to
Ag Valley for its use at the Edison grain facility, and that is
the product (including its component parts) which Ag Valley
alleges had conditions which were unreasonably dangerous
and defective.
48
See Divis, supra note 34 (holding that for period of repose to begin anew
after product is refurbished by manufacturer, refurbishment must have
extended product’s useful life, and refurbishment must have been defective
and proximately caused plaintiff’s injury or damage).
49
See, Marksmeier, supra note 12 (holding Tennessee’s 10-year statute
of repose barred product liability claim against manufacturer of T-shirt
because product was first sold to consumer for use 13 years before plaintiff
filed action); Farber, supra note 16 (holding § 25-224(2) barred product
liability action against chemical manufacturers and manufacturer of
chemically treated logs used at worksite because products were delivered
for use more than 10 years before suit was filed); Radke, supra note 34(holding § 25-224(2) barred product liability action against manufacturer
of commercial mixing machine because product was delivered to consumer
for use more than 10 years before action was filed); Spilker, supra note 5(holding § 25-224(2) barred product liability action against manufacturer
of outdoor switchgear because consumer took possession of product 22
years before action was filed); Gillam, supra note 24 (holding § 25-224(2)
barred product liability claim against manufacturers of wheel assembly
consisting of two component parts because product was first mounted on
truck in 1969 and action was not filed until 1987).
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Cite as 311 Neb. 665Here, there is no genuine dispute that the Titan model CB50
system was manufactured in Nebraska. As such, Ag Valley’s
product liability claim against Chief and Johnson is governed
by the 10-year repose period in § 25-224(2)(a)(i), and the dis-
trict court correctly determined the claim is barred. Because
we affirm the district court’s summary judgment to Chief and
Johnson under § 25-224(2)(a)(i), we do not reach Ag Valley’s
assignments of error related to the district court’s alternative
holding analyzing Michigan law. 50
V. CONCLUSION
Finding no merit to any of the assigned errors, the judgment
of the district court is affirmed.
Affirmed.
Papik, J., not participating.
50
See In re Adoption of Yasmin S., 308 Neb. 771, 956 N.W.2d 704 (2021)
(appellate court not obligated to engage in analysis not necessary to
adjudicate case).