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Colbert v. Norcold, Inc.

United States Court of Appeals for the Fourth Circuit

March 21, 2018, Argued; April 13, 2018, Decided

No. 17-1419

Opinion

 [*957]  PER CURIAM:

On August 2, 2015, hydrogen gas leaking from a Norcold 1200 Series gas absorption refrigerator ignited and caused a fire inside of a recreational vehicle. While responding to the fire, Brian Colbert, a sheriff's deputy and volunteer firefighter, was injured by shrapnel from an explosion caused by the fire. Consequently, Colbert sued Norcold, Thetford Corporation, and The Dyson-Kissner-Moran Corporation (collectively, "Norcold") alleging claims for breach of the implied warranty of merchantability; negligent design defect and failure to warn; and punitive damages.

The district court granted summary judgment to [**2]  Norcold on all claims. In doing so, the district court determined that Virginia's Fireman's Rule, which bars firefighters from recovering from defendants whose negligence created the fire, applied to products liability claims. See Va. Code Ann. § 8.01-226 (West 2015 & Supp. 2017). Further, the district court examined Norcold's conduct and concluded that the exception to the Fireman's Rule for willful and wanton conduct did not apply. As a result, the district court held that the Fireman's Rule operated to bar Colbert from recovering against Norcold. The district court also concluded that Colbert's breach of implied warranty of merchantability claim failed because Colbert was not within the class of permissible plaintiffs as one "whom the manufacturer or seller might reasonably have expected to use, consume, or be affected by the goods." Va. Code Ann. § 8.2-318 (West 2015).

Colbert appeals the district court's summary judgment order. ] We review the order de novo and view the facts in the light most favorable to Colbert as the nonmoving party. See Hickerson v. Yamaha Motor Corp., 882 F.3d 476, 481 (4th Cir. 2018). Having carefully considered Colbert's arguments, we affirm.

Colbert first argues that the district court erred by ruling on his breach of implied warranty of merchantability and [**3]  negligent failure to warn claims because Norcold did not move for summary judgment on these claims. We conclude that the district court did not err in this regard. Norcold plainly requested summary judgment on the breach of warranty claim as to all plaintiffs, claiming they were "entitled to judgment as a matter of law on Count I  [*958]  of [p]laintiffs' [c]omplaint." J.A. 141.1 Additionally, Colbert pled his negligent failure to warn claim as part of "Count II - Negligence," id. at 32, and Norcold moved for summary judgment on "Count II" "[p]ursuant to Virginia's 'Fireman's Rule,'" id. at 143, 141. Accordingly, the district court did not err by ruling on these claims.

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726 Fed. Appx. 956 *; 2018 U.S. App. LEXIS 9270 **; CCH Prod. Liab. Rep. P20,333; 2018 WL 1787364

BRIAN COLBERT, Plaintiff - Appellant, and MICHAEL RUNNELS; DONNA RUNNELS, Plaintiffs, v. NORCOLD, INC.; THETFORD CORPORATION; THE DYSON-KISSNER-MORAN CORPORATION, Defendants - Appellees.

Notice: PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.

Prior History:  [**1] Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. (1:16-cv-00713-LO-IDD). Liam O'Grady, District Judge.

Runnels v. Norcold, Inc., 2017 U.S. Dist. LEXIS 161473 (E.D. Va., Mar. 30, 2017)

Disposition: AFFIRMED.

CORE TERMS

district court, Fireman's Rule, product liability, willful, wanton, summary judgment, firefighters, breach of implied warranty, merchantability, recovering, warn, apply retroactively, negligent failure, gross negligence, Virginia's Fireman's Rule, Virginia Fireman's Rule, refrigerator, engagement, warranty, argues, rights

Civil Procedure, Appeals, Summary Judgment Review, Standards of Review, Torts, Strict Liability, Abnormally Dangerous Activities, Defenses, General Premises Liability, Defenses, Firefighters' Rule, Products Liability, Governments, Legislation, Effect & Operation, Retrospective Operation