Brian Colbert v. Norcold, Inc. ( 2018 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-1419
BRIAN COLBERT,
Plaintiff - Appellant,
and
MICHAEL RUNNELS; DONNA RUNNELS,
Plaintiffs,
v.
NORCOLD, INC.; THETFORD CORPORATION; THE DYSON-KISSNER-
MORAN CORPORATION,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Liam O’Grady, District Judge. (1:16-cv-00713-LO-IDD)
Argued: March 21, 2018 Decided: April 13, 2018
Before NIEMEYER, TRAXLER, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Kassi Dee Patrick Marks, LEGER KETCHUM & COHOON, PLLC, The
Woodlands, Texas, for Appellant. Martin Andrew Conn, MORAN REEVES & CONN
PC, Richmond, Virginia, for Appellee. ON BRIEF: Bradley L. Leger, LEGER
KETCHUM & COHOON, PLLC, The Woodlands, Texas, for Appellant. Lisa M.
McMurdo, Laura May Hooe, MORAN REEVES & CONN PC, Richmond, Virginia for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
I.
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 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).
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II.
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.
III.
A.
Colbert first argues that the district court erred by ruling on his breach of implied
warranty of merchantability and 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 of [p]laintiffs’ [c]omplaint.” J.A. 141. * 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.
B.
Colbert next contends that the Virginia Fireman’s Rule does not apply to products
liability claims. He argues in the alternative that Norcold’s conduct was willful and
wanton, which would warrant an exception to the Fireman’s Rule. See Goodwin v. Hare,
*
Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.
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436 S.E.2d 605, 605–06 (Va. 1993). The Virginia Fireman’s Rule, a now codified common
law doctrine, bars firefighters and other public officials engaging in high risk activities
from recovering for negligence causing them injury sustained while performing their
duties. See Va. Code Ann. § 8.01-226 (West 2015 & Supp. 2017); Chesapeake & Ohio
Ry. Co. v. Crouch, 159 S.E.2d 650, 653–55 (Va. 1968). The rule does not apply, however,
if the defendant’s conduct was willful or wanton. See Goodwin, 436 S.E.2d at 606.
After reviewing the record and the order of the district court, we agree with the
district court: the Fireman’s Rule applies to products liability claims, and Norcold’s
conduct was not willful or wanton. The reasoning behind the Fireman’s Rule applies with
equal force to products liability claims, and we see no reason the Virginia Supreme Court
would not apply it here. See Benefiel v. Walker, 422 S.E.2d 773, 775 (Va. 1992) (“It is the
fireman’s business to deal with . . . hazard[s] and hence . . . he cannot complain of
negligence in the creation of the very occasion for his engagement.” (quoting Flowers v.
Rock Creek Terrace Ltd. P’ship, 520 A.2d 361, 367 (Md. 1987))); Commonwealth v.
Millsaps, 352 S.E.2d 311, 315 (Va. 1987) (explaining that it is Virginia’s policy to impose
the burden of compensating firefighters for their injuries received in the line of duty “on
the public generally, through workers’ compensation and other benefits”). Moreover,
Norcold issued seven recalls, commissioned several studies, and instituted logging
protocols, all in an effort to reduce the risk of fires attributable to their refrigerators.
Indeed, that risk has now been reduced to negligible levels. Such responsive conduct is
not willful or wanton.
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Thus, Colbert’s products liability claims are barred by the Fireman’s Rule.
Accordingly, we need not address whether Colbert is within the class of permissible
plaintiffs for a breach of implied warranty claim.
C.
Colbert also asserts that a recent statutory amendment creating a gross negligence
exception to the Fireman’s Rule applies retroactively. See Va. Code Ann. § 8.01-226 (West
2015 & Supp. 2017). We disagree. In creating a new exception, the amendment affects
“substantive” rights; that is, it deals with “creation of duties, rights, and obligations.”
Shiflet v. Eller, 319 S.E.2d 750, 754 (Va. 1984). Therefore, it cannot apply retroactively,
see id., and we need not address the applicability of the gross negligence exception to this
case.
In light of the foregoing, we affirm substantially for the reasons stated by the district
court.
AFFIRMED
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