UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WEIDLICH & ASSOCIATES,
INCORPORATED, a West Virginia
Corporation,
Plaintiff-Appellant,

v.

ARMSTRONG AIR CONDITIONING,
INCORPORATED, a Lennox
International, Incorporated
Company, a foreign corporation;
MAGIC CHEF AIR CONDITIONING
COMPANY, a foreign corporation;
                                                             No. 95-2526
BLUE RIDGE MECHANICAL
CONTRACTORS, INCORPORATED, a
foreign corporation,
Defendants & Third Party
Plaintiffs-Appellees,

v.

COLUMBUS ELECTRIC MANUFACTURING
COMPANY; AUTOMATIC EQUIPMENT
SALES, INCORPORATED; ESSEX
CORPORATION, d/b/a White Rogers,
Third Party Defendants-Appellees.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
John T. Copenhaver, Jr., District Judge.
(CA-94-147-2)

Argued: April 3, 1996

Decided: June 18, 1996
Before MICHAEL and MOTZ, Circuit Judges, and PHILLIPS,
Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Frederick Fairfax Holroyd, II, Walter Scott Evans, HOL-
ROYD & YOST, Charleston, West Virginia, for Appellant. Kenneth
Eugene Knopf, CLEEK, PULLIN, KNOPF & FOWLER, Charleston,
West Virginia; Anita Rose Casey, MEYER, DARRAUGH, BUCK-
LER, BEBENEK & ECK, Charleston, West Virginia, for Appellees.
ON BRIEF: Melissa R. Metzger, CLEEK, PULLIN, KNOPF &
FOWLER, Charleston, West Virginia, for Appellees Armstrong,
Magic Chef, and Automatic Equipment; Daniel W. Greear, MEYER,
DARRAUGH, BUCKLER, BEBENEK & ECK, Charleston, West
Virginia, for Appellee Blue Ridge; Stephen Douglas Adkins,
MUNDY & ADKINS, Huntington, West Virginia, for Appellee
Columbus Electric; John L. Tate, STITES & HARBISON, Louisville,
Kentucky, for Appellee Essex.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Appellant Weidlich & Associates operates an eighty-four-unit
apartment complex in Dunbar, West Virginia. Each apartment is
equipped with a Magic-Pak Combination Gas Heating/Electric Cool-
ing unit, which was designed and manufactured by Appellee Magic

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Chef.1 The units were sold and installed by Appellee Blue Ridge
Mechanical Contractors. The malfunctioning of ten of these units
gave rise to this lawsuit.

In November of 1993, some of Weidlich's tenants began reporting
problems with the Magic-Paks. Specifically, the heating side of the
units would stop functioning as a result of the burning or melting of
its controls and wiring. The source of the problem was a defective
"sail switch" in the units' heating mechanism. If functioning properly,
the sail switch would activate the unit's gas ignition only when its
blower was forcing air into its combustion chamber. But some of
these switches were sticking in the "on" position, so that they acti-
vated the ignition even when the blower was not running. This mal-
function would cause the gas flame to ignite in the absence of
sufficient oxygen to sustain it, which in turn would cause the flame
to reach out of the combustion chamber into the unit's cabinetry in
search of oxygen. It was this type of "flame roll-out" that damaged
the units' controls and wiring, ultimately disabling their heating
mechanisms altogether.

Weidlich complained to Magic Chef about these malfunctions, and
Magic Chef replaced the sail switches in all eighty-four Magic-Paks
free of charge. Unsatisfied, Weidlich sued Magic Chef, Armstrong,
and Blue Ridge (Defendants) in West Virginia state court, alleging
that each was strictly liable in tort for the damage caused by the units'
defects. Weidlich prayed for $500,000 or, in the alternative, for
replacement of all the Magic-Paks.

Defendants removed the case to the United States District Court for
the Southern District of West Virginia. There, they eventually moved
for summary judgment, arguing that Weidlich had failed to prove, as
West Virginia requires, that the allegedly defective units were dam-
aged in "sudden calamitous" events. See Capitol Fuels, Inc. v. Clark
Equip. Co., 382 S.E.2d 311, 313 (W. Va. 1989).

Following a hearing on the motions, the district court, in a thor-
oughly reasoned opinion, granted summary judgment for all the
_________________________________________________________________
1 Magic Chef was later acquired by Appellee Armstrong Air Condition-
ing.

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defendants.2 The court agreed with the Defendants that, although the
Magic-Paks were defective, the incidents in which they were dam-
aged were not "sudden calamitous" events, hence did not give rise to
strict products liability claims under West Virginia tort law. Weidlich
now appeals, arguing that the flame roll-out incidents were in fact
sudden and calamitous.

We have carefully considered the briefs and oral arguments of the
parties and those portions of the record pertinent to their various argu-
ments. Having done so, we find no reversible error in the decision of
the District Court and accordingly affirm on its reasoning.

AFFIRMED
_________________________________________________________________
2 Having rejected Weidlich's claim, the District Court's order also dis-
missed the following cross-, third-party, and fourth-party claims: (1)
Blue Ridge's cross-claim for indemnification or contribution against
Magic Chef and Armstrong; (2) Armstrong and Magic Chef's third-party
claim against Columbus Electric Manufacturing Company, the alleged
manufacturer of the sail switch; (3) Blue Ridge's third-party complaints
against both Columbus and Automatic Equipment Sales, Inc., an alleged
distributor of the Magic-Paks; and finally (4) Columbus's fourth-party
complaint against Essex Corporation, who is claimed to have made
another of the Magic-Paks' components.

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