Parrott et al v. West Fraser, Inc. et al

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
CALEB PARROTT and
SHELBYE PARROTT 	PLAINTIFFS
v. 	Case No. 1:23-cv-01030
WEST FRASER, INC. 	DEFENDANT/
THIRD-PARTY PLAINTIFF
v.
TINSLEY CONSULTING GROUP, LLC;
SOUTHEASTERN INSTALLATION, INC.;
JODY COOK WELDING, LLC; and
S & S WELDING & MECHANICAL, INC. 	THIRD-PARTY DEFENDANTS
ORDER
Before the Court are Motions to Dismiss filed by Third-Party Defendants Tinsley
Consulting Group, LLC (“Tinsley”), Jody Cook Welding, LLC (“JCW”), and Southeastern
Installation, Inc. (“SII”). (ECF Nos. 46, 72, 87). Third-Party Plaintiff West Fraser, Inc. (“West
Fraser”) has filed responses to each motion. ECF Nos. 67, 82, 92. Tinsley and JCW have filed
replies. ECF Nos. 79, 86. The motion is ripe for consideration by the Court.
I. BACKGROUND
The Court accepts all well-pleaded allegations in the third-party complaint (ECF No. 37)
as true and construes them in favor of West Fraser. 	See Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). 	The events related to the instant motion occurred at West Fraser’s sawmill in Huttig,
Arkansas. 	Around 2012, West Fraser decided to convert two of its existing batch kilns into
continuous drying kilns. 	A continuous drying kiln automates the process of pushing the wood
through the kiln and is more efficient than a batch kiln, which requires an employee to physically
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push the wood into the kiln to dry and then pull the wood out of the kiln. Because the kilns get so
hot, it is almost impossible for West Fraser employees to enter the kilns on a daily or weekly basis.
To maintain and inspect the kilns, West Fraser incorporated into its schedule “down periods” every
three months, at which time West Fraser hired third parties to perform maintenance on and make
repairs to the kilns.
In 2012, West Fraser hired Tinsley, a supplier of technical consulting and engineering
services, to oversee and manage the kiln conversion process, which included “creating drawings
for the continuous drying kilns, identifying and vetting subcontractors and suppliers to assist in
the conversion, and otherwise generally ensuring that the continuous drying kilns were designed,
constructed, and installed in a safe and sound manner.” ECF No. 37, at ¶ 23. West Faser relied
on and deferred to Tinsley for technical matters related to the kiln conversion process, including
the design and construction of the continuous drying kilns.
Tinsley hired Southeastern Installation, Inc. (“SII”) to design, construct, and install the
physical components and infrastructure inside the continuous drying kilns, which included the
walkway at issue in this case. 	This walkway was built for individuals who were performing
maintenance on a row of fans at the top of the kiln. The walkway was approximately twenty (20)
feet off the ground. 	SII designed, manufactured, and installed the components of the walkway.
Specifically, West Fraser alleges that SII improperly installed an angle piece, upon which the
walkway rested, in a manner that was inconsistent with the drawings SII provided to West Fraser.
West Fraser claims that the defective configuration of the angle piece rendered it prone to
degradation and corrosion, making it defective, unreasonably dangerous, unsafe, and unfit for its
particular purpose. West Fraser also alleges that the angle pieces were installed using stitch welds
that were not done in a workmanlike manner, jeopardizing the integrity and longevity of some
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components of the walkway. West Fraser further alleges that SII and Tinsley knew or should have
known about these defects and that SII and Tinsley concealed these defects from West Fraser.
In 2015, the aluminum decking material of the walkway, which was originally designed
and installed by SII, had corroded such that it had to be replaced. West Fraser bought new stainless
steel decking material from SII, which West Fraser claims did not meet the engineering
specification it provided. West Fraser also claims that SII knew that the stainless-steel decking it
provided did not meet the specified engineering requirements and concealed this fact from West
Fraser.
Though SII manufactured and supplied the stainless-steel decking in 2015, JCW, a licensed
metal fabricator, installed it. 	As early as 2015, JCW contracted with Jody Cook to perform
maintenance and repairs at the Huttig sawmill, including maintenance to the continuous drying
kilns. 	West Fraser directed JCW to identify any maintenance and repair issues regarding the
continuous drying kilns. 	JCW assumed the responsibility to inspect the kilns, including the
walkway, identify problems, and fix the problems. In 2015, JCW replaced the aluminum decking
with the stainless-steel decking supplied by SII. West Fraser claims that JCW should have known
about the allegedly defective angle piece and the allegedly defective stitch welds. 	West Fraser
alleges that JCW failed to notify it of these defects.
At some point in time, West Fraser replaced JCW with S & S Welding & Mechanical, Inc.
(“S&S”). S&S provided the same services that JCW did—performing repairs and maintenance at
the Huttig sawmill, including the maintenance walkway at issue. At some point prior to March
2023, S&S replaced the decking on the walkway. West Fraser noticed that one angle piece had
been installed incorrectly and fixed the angle piece. However, another angle piece remained that
had been installed incorrectly. 	S&S did not notify West Fraser that an angle piece had been
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installed incorrectly.
On March 17, 2023, Caleb Parrott, an employee of Industry Services Co., Inc., along with
other individuals, was walking on the walkway inside one of the continuous drying kilns to
determine what work needed to be done. While these individuals were on the walkway, it failed,
and they all fell approximately twenty (20) feet. Caleb Parrott and his wife, Shelbye Parrott, filed
the instant lawsuit against West Fraser and Edward Henson,1 Sawmill Supervisor, alleging
negligence and loss of consortium related to the injuries Parrott sustained in the fall. ECF No. 3.
West Fraser then filed a third-party complaint against Tinsley, SII, JCW, and S&S,
alleging that they “each caused and/or contributed to the walkway’s failure, or failed to act in a
manner that caused and/or contributed to the walkway’s failure.” ECF No. 37, at ¶ 2. West Fraser
brings three claims against Tinsley: 	(1) failure to supervise; (2) implied indemnity; and (3)
contribution. 	West Fraser brings three claims against JCW: 	(1) professional negligence; (2)
implied indemnity; (3) and contribution. West Fraser brings six claims against SII: (1) professional
negligence; (2) products liability; (3) failure to warn; (4) breach of implied warranty of
merchantability; (5) implied indemnity; and (6) contribution.2 Tinsley, JCW, and SII argue that
the claims against them should be dismissed.3
II. LEGAL STANDARD
To survive a motion to dismiss for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (internal quotations omitted).
“The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer
1The Court has since dismissed Edward Henson from this lawsuit. ECF No. 31.
2The Court notes that, in its complaint, West Fraser labeled this claim as a claim for “contributory negligence,” but
as the Court discusses later in this order, the claim is actually a claim for contribution.
3West Fraser also brings similar claims against S&S, but S&S has not filed a motion to dismiss.
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possibility that a defendant” is liable. Id. (internal quotations omitted). “Determining whether a
complaint states a plausible claim for relief will . . . be a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.” Id. at 679. “A plaintiff
need only allege facts that permit the reasonable inference that the defendant is liable, even if the
complaint strikes a savvy judge that actual proof of the facts alleged is improbable and recovery
very remote and unlikely.” Hamilton v. Palm, 621 F.3d 816, 819 (2010).
III. DISCUSSION
The Court will first address the arguments that are common to Tinsley, JCW, and SII4
before addressing SII’s separate arguments for dismissal.
A. Common Arguments
Separate Defendants argue that Arkansas’s statute of repose bars West Fraser’s claims, that
the implied indemnity claim is premature, and that the contributory negligence claim is improper.
West Fraser disagrees.
1. Statute of Repose
“The Arkansas statute of repose ‘protect[s] persons engaged in the construction industry
from being subject to litigation arising from work performed many years prior to the initiation of
the lawsuit.’” Norfolk & Dedham Mut. Fire Ins. Co. v. Rogers Mfg. Corp., 122 F.4th 312, 315
(8th Cir. 2024) (quoting Star City Sch. Dist. v. ACI Bldg. Sys., LLC, 844 F.3d 1011, 1017 (8th Cir.
2017)). It does so by terminating an injured plaintiff’s “right of action before it accrues, when that
action does not arise until after the statutory period has elapsed.” 	Star City, 844 F.3d at 1017
(quoting Curry v. Thornsberry, 354 Ark. 631, 638, 128 S.W.3d, 447 (2003)). Stated simply, the
4From this point forward, the Court will sometimes refer collectively to Tinsley, JCW, and SII as “Third-Party
Defendants.” Although S&S is also a third-party defendant, the Court is not referring to S&S in this order when it
refers collectively to “Third-Party Defendants.”
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statute of repose entirely cuts off a cause of action after the statutory period has elapsed.
Third-Party Defendants argue that their claims are barred by a specific subsection of
Arkansas’ statute of repose, Ark. Code Ann. § 16-56-112(b)(1). 	The subsection reads, in relevant
part:
No action in tort or contract, whether oral or written, sealed or unsealed, to recover
damages for personal injury or wrongful death caused by any deficiency in the
design, planning, supervision, or observation of construction or the construction
and repairing of any improvement to real property shall be brought against any
person performing or furnishing the design, planning, supervision, or observation
of construction or the construction and repair of the improvement more than four
(4) years after substantial completion of the improvement.
Ark. Code Ann. § 16-56-112(b)(1). 	“The ‘legislative purpose’ of § 16-56-112 ‘was to enact a
comprehensive statute of limitations protecting person engaged in the construction industry from
being subject to litigation arising from work performed many years prior to the initiation of the
lawsuit.’” Cearley v. Bobst Group N. Am., ___ F.4th ___, No. 23-1101, 2025 WL 571980, at *3
(8th Cir. Feb. 21, 2025) (quoting Okla Homer Smith Furniture Mfg. Co. v. Larson and Wear, Inc.,
278 Ark. 467, 470, 646 S.W.2d 696, 698 (1983)).
The Court must determine whether Third-Party Defendants are protected by the statute of
repose. First, the Court looks to the plain language of the subsection. Subsection 112(b) applies
to an “action in tort or contract . . . to recover damages for personal injury or wrongful death.”
Ark. Code Ann. § 16-56-112(b). Third-Party Defendants argue that this specific subsection applies
to bar West Fraser’s claims against them. Thus, only subsection 112(b) is at issue in the instant
motions. However, this subsection cannot apply because West Fraser’s claims against Third-Party
Defendants are not claims for personal injury or wrongful death. 	The Parrotts are suing West
Fraser, not Third-Party Defendants, for personal injuries. Although West Fraser asserts tort claims
(negligence) against Third-Party Defendants, the claims are not for personal injury or wrongful
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death. Thus, the Court cannot find that subsection 112(b) of the statute of repose applies to bar
West Fraser’s claims against Third-Party Defendants.
2. Implied Indemnity
West Fraser has asserted a claim for implied indemnity against Third-Party Defendants.
“The basis for the right to indemnity in a case where there is no express contract therefor is liability
upon an implied contract or quasi-contract.” Larson Mach., Inc. v. Wallace, 268 Ark. 192, 213,
600 S.W.2d 1, 12 (1980). Third-Party Defendants argue that the implied indemnity claim should
be dismissed because it is premature, arguing that “[n]o money judgment may be rendered for
indemnity until the party seeking indemnity has suffered actual loss.” Id. A cause of action for
implied indemnification does not accrue until payment has been legally made by the indemnitee.
Id. at 215, 600 S.W.2d at 13. 	However, it is appropriate “for a third-party complaint . . . for
indemnity to be served on a party to the action before the cause of action accrues, to avoid a
multiplicity of actions.” Id.
Here, the cause of action for implied indemnification has not accrued because West Fraser
has not suffered actual loss. However, it is appropriate for West Fraser to bring its claim in a third-
party complaint against Third-Party Defendants to avoid a multiplicity of actions. Thus, the Court
finds that the implied indemnity claim should not be dismissed on the basis that the claim is
premature.
3. Contributory Negligence/Contribution
West Fraser brings a claim against Third-Party Defendants that is titled “Contributory
Negligence.” ECF No. 37, p. 21. Third-Party Defendants argue that this claim should be dismissed
because contributory negligence is an affirmative defense. Because Third-Party Defendants are
not plaintiffs in the action brought by West Fraser, they reason that they cannot be liable for
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contributory negligence. In response, West Fraser explains that the contributory negligence claim
is mislabeled and is actually a claim for contribution among tortfeasors under Ark. Code Ann. §
16-61-202. West Fraser claims that it is “entitled to a judgment for its damages and an allocation
of fault between West Fraser, Tinsley, and the other named Third-Party Defendant.” ECF No. 37,
¶ 164. The claim is mislabeled, but the facts and allegations under the heading indicate that West
Fraser intends to state a claim for contribution. 	The Court finds that the claim should not be
dismissed simply because it is mislabeled.
B. SII’s Separate Arguments
SII makes the following arguments as to why two claims specific to them should be
dismissed. 	First, SII argues that the professional negligence claim is time-barred. 	Second, SII
argues that West Fraser fails to state a claim for breach of the implied warranty of merchantability.
1. Professional Negligence
SII argues that the professional negligence claim is barred by the three-year statute of
limitations. SII contends that the three-year statute of limitations found in Ark. Code Ann. § 16-
56-105 controls the professional negligence claim. West Fraser does not argue otherwise.
The parties disagree as to when the statute of limitations began to run. Arkansas follows
the occurrence rule, which “provides that that an action accrues when the last element essential to
the cause of action occurs, unless the wrongdoing is actively concealed.” Tate v. Laboratory Corp.
of Am. Holdings, 102 Ark. App. 354, 356, 285 S.W.3d 261, 262 (2008). SII argues that the statute
of limitations began to run in 2015 when the negligent act occurred. 	West Fraser, on the other
hand, contends that SII’s fraudulent concealment tolled the statute of limitations such that it did
not begin to run until 2023, when the negligent act was discovered.
“Under Rule 9(b)’s heightened pleading standard, allegations of fraud, including fraudulent
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concealment for tolling purposes, [must] be pleaded with particularity.” Summerhill v. Terminix,
Inc., 637 F.3d 877, 880 (8th Cir. 2011) (citing Great Plains Trust Co. v. Union Pac. R.R. Co., 492
F.3d 986, 995 (8th Cir. 2007)). In other words, Rule 9(b) requires plaintiffs to plead “the who,
what, when, where, and how: the first paragraph of any newspaper story.” Id. (quotation omitted).
“The defense of fraudulent concealment requires a fact question related to some positive act of
fraud, something so furtively planned and secretly executed as to keep the plaintiff’s cause of
action concealed, or perpetrated in a way that conceals itself.” 	Carlson v. Kelso Drafting and
Design, 2010 Ark. App. at 2, 374 S.W.3d 726, 728 (2010).
“Under Arkansas law, once it is clear from the face of the complaint that an action is barred
by an applicable statute of limitations, the burden shifts to the plaintiff to prove that the limitation
period was in fact tolled.” Id. (citing Paine v. Jefferson Nat’l Life Ins. Co., 594 F.3d 989, 992 (8th
Cir. 2010) (applying Arkansas law)). 	To toll a limitation period because of fraudulent
concealment, there must be: “(1) a positive act of fraud (2) that is actively concealed, and (3) is
not discoverable by reasonable diligence.” Paine, 594 F.3d at 992 (quotation omitted).
Here, West Fraser does not dispute that the professional negligence claim is time-barred
unless the doctrine of fraudulent concealment tolls the three-year limitation period. 	Thus, it is
West Fraser’s “burden to plead, with particularity, facts to support [its] claim that the doctrine of
fraudulent concealment tolls [the three-year] statute of limitations.” Summerhill, 637 F.3d 877 at
880. In its third-party complaint, West Fraser alleges that “SII and Tinsley fraudulently concealed
these defects [in the angle piece and stitch welds], such defects they knew or should have known
existed.” ECF No. 37, ¶ 64. West Fraser further alleges that SII fraudulently concealed the fact
that the decking it provided did not meet West Fraser’s engineering specification. ECF No. 37, ¶
79.
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General allegations of fraud are peppered throughout the third-party complaint. However,
West Fraser has not alleged any facts indicating a secretly executed and furtive plan to defraud as
required by Arkansas law. 	Instead, West Fraser only offers general statements and conclusory
allegations that SII acted fraudulently by failing to disclose defects. 	Therefore, the Court finds
that West Fraser has not pled its allegations of fraud with the particularity required by Federal Rule
of Civil Procedure 9, and the doctrine of fraudulent concealment does not toll the three-year statute
of limitations. Accordingly, West Fraser’s professional negligence claim is time-barred and must
be dismissed.
2. Implied Warranty of Merchantability
SII briefly argues that West Fraser fails to state a claim for the implied warranty of
merchantability. “To recover for breach of an implied warranty of merchantability, the plaintiff
must prove that (1) he has sustained damages; (2) the product was not merchantable, i.e., not fit
for the ordinary purpose for which such goods are used; (3) this unmerchantable condition was a
proximate cause of the damages; and (4) he was a person whom the defendant might reasonably
expect to use or be affected by the product.” F.L. Davis Builders Supply, Inc. v. Knapp, 42 Ark.
App. 52, 57, 853 S.W.2d 288, 290 (1993).
First, SII contends that West Fraser has not asserted any allegation that West Fraser or
Caleb Parrott were persons who would reasonably expect to use or be affected by the product.
However, West Fraser alleges that SII was hired to design and install the continuous drying system,
which included a walkway for individuals who were performing maintenance on the fans. ECF
No. 37, ¶ 37. In fact, when the walkway failed, this is exactly what Parrott was doing, scoping
maintenance work that needed to be performed on the fans.
Next, SII argues that West Fraser’s allegations of unfitness are conclusory and thus not
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sufficiently pled. However, West Fraser alleges that the angle piece manufactured by SII was not
in the correct orientation, was not in accordance with SII’s drawings, and that the stitch welds of
certain components were defective, making the components more prone to degradation.
The Court finds that the allegations above give SII fair notice of West Fraser’s claim for
the implied warranty of merchantability and thus this claim is sufficiently pled.
IV. CONCLUSION
For the reasons stated above, the Court finds that Tinsley’s and JCW’s Motions to Dismiss
(ECF No. 46, 72) should be and hereby are DENIED. The Court finds that SII’s Motion to Dismiss
(ECF No. 87) is GRANTED IN PART and DENIED IN PART. The motion (ECF No. 87) is
GRANTED as to West Fraser’s professional negligence claim against SII. 	The motion is
DENIED as to all other claims.
IT IS SO ORDERED, this 31st day of March, 2025.
/s/ Susan O. Hickey
Susan O. Hickey
Chief United States District Judge
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