UNPUBLISHED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.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Frederick Fairfax Holroyd, II, Walter Scott Evans, HOLROYD & YOST, Charleston, West Virginia, for Appellant. Kenneth

Eugene Knopf, CLEEK, PULLIN, KNOPF & FOWLER, Charleston,

West Virginia; Anita Rose Casey, MEYER, DARRAUGH, BUCKLER, 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.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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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 Cooling 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 activated the ignition even when the blower was not running. This malfunction 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 damaged 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 thoroughly reasoned opinion, granted summary judgment for all the

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1 Magic Chef was later acquired by Appellee Armstrong Air Conditioning.

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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 damaged 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 arguments. Having done so, we find no reversible error in the decision of

the District Court and accordingly affirm on its reasoning.

AFFIRMED

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2 Having rejected Weidlich's claim, the District Court's order also dismissed 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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