UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WILLIAM S. MILLS, Administrator of
the Estate of Amy Geissinger,
Plaintiff-Appellant,

v.

GENERAL MOTORS CORPORATION;
COACH CRAFTERS, INCORPORATED,
Defendants-Appellees,

and
                                                               No. 96-2359

GRIMES AEROSPACE COMPANY,
formerly doing business as Midland
Ross Corporation, formerly doing
business as F.L. Aerospace
Corporation, formerly doing
business as F.L. Aerospace
Holdings Corporation,
Defendant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, Sr., District Judge.
(CA-94-733-1)

Argued: May 9, 1997

Decided: July 23, 1997

Before RUSSELL and WILLIAMS, Circuit Judges, and
MICHAEL, Senior United States District Judge for the
Western District of Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Jonathan Eric Halperin, LAW OFFICES OF PATRICK
M. REGAN, Washington, D.C., for Appellant. Fred Joseph Fresard,
BOWMAN & BROOKE, Detroit, Michigan; William Kearns Davis,
BELL, DAVIS & PITT, P.A., Winston-Salem, North Carolina, for
Appellees. ON BRIEF: Patrick M. Regan, LAW OFFICES OF PAT-
RICK M. REGAN, Washington, D.C.; Jerome P. Trehy, Jr.,
TWIGGS, ABRAMS, STRICKLAND & TREHY, P.A., Raleigh,
North Carolina, for Appellant. Frank Nizio, BOWMAN & BROOKE,
Detroit, Michigan; J. Donald Cowan, Jr., SMITH, HELMS, MUL-
LISS & MOORE, L.L.P., Greensboro, North Carolina, for Appellee
General Motors. Alan M. Ruley, BELL, DAVIS & PITT, P.A.,
Winston-Salem, North Carolina, for Appellee Coach Crafters.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

This litigation arises out of the tragic death of Amy Geissinger, a
Duke University student who was killed after she fell from the rear
door of a university bus while the bus was turning a corner. In 1977,
defendant-appellee General Motors Corp. ("GMC") manufactured the
RTS-II bus, which it sold to the Rhode Island Transit Authority in
1978. In 1991, defendant-appellee Coach Crafters, Inc. purchased the
bus, which it refurbished and sold to Duke University according to an
agreed-upon set of specifications.

Plaintiff-appellant Mills filed suit against GMC on behalf of the
estate of Ms. Geissinger, alleging (1) negligent design, manufacture,

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and distribution of the bus, the defect specifically being the design of
the rear doors; (2) failure to warn and breach of a post-sale duty to
warn; (3) failure to retrofit or recall; (4) breach of an implied warranty
of merchantability; and (5) a claim for punitive damages. Mills filed
identical claims against Coach Crafters, except that plaintiff alleged
that Coach Crafters was negligent in the re-manufacture and distribu-
tion of the refurbished bus. Finally, Mills also sued defendant Mid-
land Ross, the manufacturer of the bus's rear door motors and
linkages. Prior to adjudication of defendants' motions for summary
judgment, Mills settled with Midland Ross. Thus, only GMC and
Coach Crafters remain parties to this suit.

The district court granted defendants' separate motions for sum-
mary judgment. Although the court noted the emotional appeal of the
case, it found that Mills's suit against GMC was barred by North Car-
olina's six year Statute of Repose, N.C. Gen. Stat.§ 1-50(6). The
court granted Coach Crafters's motion for summary judgment
because it found that defendant (1) had neither actual nor constructive
knowledge of any alleged defect in the Midland Ross doors; and (2)
the contract between Duke University and Coach Crafters explicitly
excluded an implied warranty of merchantability. Mills appeals from
the lower court's decision. We will review the district court's grant
of summary judgment de novo. See Lone Star Steakhouse & Saloon,
Inc. v. Alpha of Va., Inc., 43 F.3d 922, 928 (4th Cir. 1995).

I. GMC'S MOTION FOR SUMMARY JUDGMENT

The district court granted GMC's motion for summary judgment
because it found that Mills's suit was barred by North Carolina's Stat-
ute of Repose. Under N.C. Gen. Stat. § 1-50(6),

          No action for the recovery of damages for personal injury,
          death or damage to property based upon or arising out of
          any defect or in any failure in relation to a product shall be
          brought more than six years after the date of initial purchase
          for use or consumption.

Because Ms. Geissinger was injured more than six years after GMC
had sold the RTS-II bus, the court concluded that any claim for per-
sonal injuries was barred as against GMC.

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On appeal, Mills first argues that summary judgment should not
have been granted because discovery was ongoing and might have
resulted in the production of materials that would have had a direct
bearing on the factual issues related to the motion. Mills next argues
that § 1-50(6) does not apply to his failure to warn claim. Mills also
argues that GMC's negligence continued beyond the sale of the bus
through its production and distribution of service manuals and bulle-
tins, thus bringing plaintiff's claims within the period permitted by
the Statute of Repose. Finally, Mills makes the related argument that
GMC's service manuals and bulletins are separately defective prod-
ucts that were sold within six years of Geissinger's death, thus avoid-
ing § 1-50(6)'s bar. None of these arguments has merit.

A. Ongoing Discovery

The district court did not address plaintiff's first argument regard-
ing discovery except to note that "[w]hether a statute of repose has
expired is strictly a legal issue." Memorandum Opinion at 6, Mills v.
General Motors Corp. (M.D.N.C. July 12, 1996) (No. 94CV00733)
(J.A. at 1287) (citing Lamb v. Wedgewood South Corp., 448 S.E.2d
832, 836 (N.C. Ct. App. 1983)). Mills has failed to identify what evi-
dence he believes that discovery would have produced, but regardless,
the parties do not dispute the dates on which the bus was manufac-
tured and the injury occurred. These facts alone are sufficient to make
a determination as to the application of § 1-50(6); accordingly, a
reversal on the basis of potential discovery is unwarranted.

B. Section § 1-50(6)'s Statutory Bar

"A statute of repose `serves as an unyielding and absolute barrier
that prevents a plaintiff's right of action even before his cause of
action may accrue,' and functions to give a defendant a vested right
not to be sued if the plaintiff fails to file within the prescribed period."
Lamb, 448 S.E.2d at 835 (citations omitted). GMC manufactured the
RTS-II bus in 1977, and delivered the bus to its initial purchaser by
1978. Ms. Geissinger was killed in 1992. As a result, Ms. Geiss-
inger's claim accrued "more than six years after the date of initial pur-
chase," thus raising the statutory bar as to appellant's claims against
GMC. Mills, however, makes several efforts to avoid application of
the bar to his claims.

                     4
Mills first argues that a manufacturer's duty to warn of hidden
defects continues beyond the six year period specified in North Caro-
lina's Statute of Repose. Although North Carolina recognizes that a
manufacturer has a continuing post-sale duty to warn consumers of
dangerous defects that it later discovers, see Smith v. Selco Prods.,
Inc., 385 S.E.2d 173, 176-77 (N.C. Ct. App. 1989), this duty to warn
of hidden defects does not extend beyond the six-year limit imposed
by the Statute of Repose, see Davidson v. Volkswagenwerk, A.G., 336
S.E.2d 714, 716 (N.C. Ct. App. 1985). As stated in§ 1-50(6), no
claim for injuries "arising out of . . . any failure in relation to a prod-
uct" may be brought where the injury occurred more than six years
after the product's manufacture. Mills's failure to warn claim relates
to the sale and manufacture of the RTS-II bus. As a result, the claim
is barred by § 1-50(6).

Mills also argues that GMC's production of allegedly insufficient
service manuals and bulletins constituted a continuing pattern of neg-
ligence such that the statute of repose should not operate to bar appel-
lant's claims. In support of this argument, Mills cites several cases
from North Carolina and other jurisdictions. The North Carolina cases
clearly are distinguishable from the instant case, inasmuch as the case
at bar does not raise the equitable concerns that were present in
Bryant v. Adams, 448 S.E.2d 832, 838 (N.C. Ct. App. 1994) (misrep-
resentations in discovery bars defendant from raising statute of
repose), and One North McDowell Association of Unit Owners, Inc.
v. McDowell Development Co., 389 S.E.2d 834 (N.C. Ct. App. 1990)
(tolling agreement between parties estopped defendant from raising
statutory bar). We are unpersuaded that the Minnesota cases relied on
by appellant can be reconciled with Davidson.1

Finally, appellant argues that GMC's post-sale production of safety
_________________________________________________________________
1 In addition, with regard to appellant's citation of Hodder v. Goodyear
Tire & Rubber Co., 426 N.W.2d 826 (Minn. 1988), we note, as did the
court below, that the statute at issue in Hodder was "`not a typical statute
of repose.'" Id. at 830. Instead, the statute at issue in Hodder was a "use-
ful life" statute where the period of repose was defined by the useful life
of the product, as determined by the trier of fact. Unlike the statute of
repose in the case at bar, the statute in Hodder did not "specify a pre-
sumptive number of years after which an action cannot be brought." Id.

                     5
manuals and bulletins started the running of the statute of repose
anew because the service manuals and bulletins themselves consti-
tuted separately defective products so as to support a claim of negli-
gence. See Driver v. Burlington Aviation, Inc. , 430 S.E.2d 476 (N.C.
Ct. App. 1993). This court has no quarrel with Driver, but the com-
plaint in the instant case is premised merely on the defective design
of the bus's rear doors. Nowhere does Mills's complaint allege that
the service manuals or bulletins provided by GMC were a separately
defective product. Accordingly, Driver is inapposite to the case at bar,
and North Carolina's six year Statute of Repose applies.

For these reasons, the district court's grant of summary judgment
to GMC will be affirmed.

II. COACH CRAFTERS' MOTION FOR SUMMARY JUDGMENT

A. Actual or Constructive Knowledge

Coach Crafters remanufactured the RTS-II bus according to a set
of specifications that were agreed upon by Duke University and
Coach Crafters. See Purchase Agreement, Ex. A (J.A. at 253-58).
These specifications corresponded to GMC's original design, but
incorporated certain additional modifications, none of which relate to
the instant case, that GMC had recommended subsequent to the bus's
original manufacture. Appellant contends that Coach Crafters was
negligent because it failed to modify the rear doors to include a posi-
tive locking mechanism. The district court granted Coach Crafters's
motion for summary judgment in part because it found that Coach
Crafters had neither actual nor constructive knowledge that the rear
doors of the RTS-II buses posed a danger so as to impose a duty on
defendant, either as a manufacturer or a remanufacturer. Mills argues
that the district court erred because Coach Crafters reasonably should
have known of the dangers posed by the doors in light of numerous
accidents that took place involving the rear doors of RTS-II buses,
and in light of service bulletins issued by GMC regarding the rear
doors of their buses.

Initially, it is important to distinguish between those RTS-II buses
that were equipped with rear doors manufactured by Midland Ross,
as was the bus in the instant case, and those buses that were equipped

                    6
with doors manufactured by Vapor Corp. The vast majority of buses
manufactured by GMC were equipped with Vapor doors. Only a rela-
tively small number of buses -- 330 out of 8300 buses -- were
equipped with Midland Ross doors. Although Mills alleges that
numerous injuries and fatalities occurred in accidents involving the
rear doors of RTS-II buses, all of the incidents cited involved buses
equipped with Vapor doors. The case at bar is the first and, as far as
this court knows, the only incident involving Midland Ross doors --
there has never been an incident of the type seen in the instant case
related to Midland Ross doors. As a result, Coach Crafters could not
have discovered, even through reasonable investigation, prior inci-
dents involving Midland Ross doors such that it would have been put
on notice of the attendant dangers. Moreover, none of the GMC bulle-
tins addressed any problems with the Midland Ross doors that relate
to the accident in the instant case.2

Mills contends, however, that the absence of incidents involving
buses equipped with Midland Ross doors is indicative of the small
number of Midland Ross-equipped buses as compared to those
equipped with Vapor doors, rather than any difference in the doors'
safety. Mills argues that whether Vapor doors or Midland Ross doors
are to be considered is irrelevant; the defect is the absence of any pos-
itive locking mechanism, such mechanism not being present in both
models of doors. Accordingly, Mills contends that Coach Crafters had
constructive knowledge of the dangers posed by Midland Ross doors
by virtue of the incidents involving Vapor doors.

First, it is important to note that Coach Crafters denies having any
knowledge of problems associated with Vapor doors. Nevertheless,
even assuming that Coach Crafters should have known about the
problems attendant with Vapor-equipped RTS-II doors, this knowl-
edge would not have put Coach Crafters on notice of any dangers
associated with Midland Ross doors. Although certain types of prod-
_________________________________________________________________
2 Although one bulletin was applicable to Midland Ross doors, it
addressed the problem of "wind buffeting," whereby at speeds over 15
miles per hour, the rear door would open slightly, causing the bus to slow
down until the doors closed. See J.A. at 1228-34. The bulletin did not
address any problem of bus doors bursting open when pressure was
applied by passengers.

                     7
ucts may pose a generic threat to consumers, see Morgan v. Cavalier
Acquisition Corp., 432 S.E.2d 915 (N.C. Ct. App. 1993) (drink vend-
ing machines), a post-accident engineering analysis of the accident
conducted by the National Highway Traffic and Safety Administra-
tion ("NHTSA") explained that Vapor doors and Midland Ross doors
are very different from each other. See J.A. at 245. Specifically, the
report noted that "[t]he Vapor system uses pneumatic motors of a dif-
ferent size, the mechanical linkage (and the mechanical advantage
generated by the linkage) is different, and the air pressure required by
the system is also different." Id. Appellant characterizes the distinc-
tion between the two types of doors as "irrelevant," see Reply Brief
of Appellant at 3, Mills v. General Motors Corp. (No. 96-2359) (4th
Cir. Jan. 13, 1997), but the NHTSA report is clear that this accident
was different from those involving Vapor-equipped buses. In fact the
NHTSA report explained:

           The single accident that occurred was the result of a com-
          bination of unfortunate circumstances. The doors on the
          subject bus were properly adjusted and the air pressure was
          correctly set. The woman that fell into the stairwell appears
          to have tried to stop her fall with her foot. Her foot landed
          at the area where the two doors meet at the outer edge of the
          lower step. Her foot deflected the doors just enough for her
          leg to be forced through. The doors remained closed and the
          air motor did not activate. Unfortunately her foot struck the
          pavement and was caught and run over by the rear wheel of
          the bus. This caused her body to be pulled through the
          doors. The doors, which are 7 feet tall and are held closed
          at the top, deflected just enough to allow her body to be
          pulled through. The doors still remained closed during this
          incident and the air motor did not cycle the doors. This event
          was unique, when contrasted with accidents involving RTS-
          II buses fitted with Vapor door operating systems. In the
          accidents involving Vapor-equipped buses, the doors actu-
          ally opened, or were pushed open, and passengers fell out
          through the open doors.

          ....

          No safety-defect trend has been identified.

                    8
Id. at 247-48 (emphasis added). Although the NHTSA's report is a
post hoc analysis of the accident, it persuasively distinguishes
between Vapor doors and Midland-Ross doors, clearly illustrating
why incidents involving Vapor-equipped buses would not be suffi-
cient to put Coach Crafters on notice that there were defects in buses
equipped with Midland Ross doors.

Ultimately, it is evident that the Midland Ross doors functioned as
they were designed to function. Unlike those instances involving
Vapor-equipped buses where the doors actually opened so as to per-
mit passengers to fall out, the door in the instant case remained
closed. Whatever defect, if any, that may have been present in the
Midland Ross doors cannot be charged to Coach Crafters, the
remanufacturer having no notice or knowledge, actual or constructive,
that the rear doors posed a danger to passengers. Accordingly, Coach
Crafters is entitled to summary judgment on Mills's negligence
claims.

B. Breach of Implied Warranty of Merchantability

The district court found that there was no privity of contract
between Ms. Geissinger and Coach Crafters such that appellant could
assert a claim for breach of an implied warranty of merchantability.
The court came to this conclusion because it characterized the agree-
ment between Coach Crafters and Duke University as a contract for
services. Appellant counters that the privity requirement has been
relaxed in product liability actions for personal injury suits relating to
the sale of goods, and that the sale of the bus by Coach Crafters to
Duke was the sale of goods. Brief of Appellant at 28, Mills (No. 96-
2359) (Nov. 19, 1996). After considering the contract at issue, we
find without addressing the issue of privity that Coach Crafters is
entitled to summary judgment on appellant's breach of warranty
claim.

Appellant contends that the general warranty on the bus incorpo-
rates an implied warranty of merchantability. In support of this argu-
ment Mills quotes Exhibit B of the sales agreement, which states:

          CoachCrafters, Inc. warrants and guarantees the bus to be
          free from basic defects and related defects for twelve (12)
          months or 50,000 miles, whichever comes first.

                     9
          In addition to the basic warranty, CoachCrafters, Inc. war-
          rants and guarantees the structure of the bus to be free of
          basic defects and related defects for a period of two (2)
          years, unlimited mileage.

J.A. at 259.

If a contract is unambiguous on its face, a court may interpret the
contract as a matter of law. World-Wide Rights Ltd. Partnership v.
Combe, Inc., 955 F.2d 242, 245 (4th Cir. 1992)."Where the terms of
a . . . contract are clear and unambiguous, its terms `are to be taken
and understood in their plain, ordinary and popular sense.'" Faber
Indus., Ltd. v. Witek, 483 S.E.2d 443, 444 (N.C. Ct. App. 1997) (quot-
ing Taylor v. Gibbs, 150 S.E.2d 506, 506 (N.C. 1966)). In the instant
case, the contract is unambiguous on its face.

In addition to the language that appellant cites, the contract
between Coach Crafters and Duke clearly states:

          THE EXPRESS WARRANTY SET FORTH IN THE LIM-
          ITED WARRANTY POLICY IS EXPRESSLY IN LIEU
          OF ANY OTHER EXPRESS OR IMPLIED WARRAN-
          TIES OR GUARANTEES WITH RESPECT TO BUSES
          OR ANY PART THEREOF, INCLUDING ANY IMPLIED
          WARRANTY OR [sic] MERCHANTABILITY OR FIT-
          NESS FOR A PARTICULAR PURPOSE.

J.A. at 250. Because the express language of the agreement clearly
rules out any implied warranties, we find as a matter of law that
Coach Crafters is entitled to summary judgment on plaintiff's breach
of warranty claim.

III. CONCLUSION

For the reasons stated, the district court's grant of summary judg-
ment to GMC and Coach Crafters is

AFFIRMED.

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