Appeal by plaintiffs from order entered 30 August 1996 by Judge Thomas W. Ross in Guilford County Superior Court. Heard in the Court of Appeals 26 August 1997.
The opinion of the court was delivered by: Timmons-goodson, Judge.
This action for negligence and breach of implied and express warranties flows from the purchase and eventual destruction of a certain recreational vehicle. Plaintiffs Luther Deleon Moore and Sudie Marie Moore purchased a new 1989 Sportscoach Cross Country recreational vehicle, manufactured by defendant Coachmen Industries, Inc. (hereinafter "Coachmen") and defendant Sportscoach Corporation of America (hereinafter "Sportscoach"), from Carolina Country RV, Inc., an authorized distributor of defendants Coachmen and Sportscoach. Defendant Sportscoach was a subsidiary of defendant Coachmen. Plaintiffs' vehicle was covered by a New Recreational Vehicle Limited Warranty (hereinafter "Limited Warranty"), effective for one year from the date of purchase or the first 15,000 miles of use, whichever occurred first. This Limited Warranty included a disclaimer of liability for incidental or consequential damages and a statement limiting implied warranties in duration to the term of the written warranty. At the time of the purchase of the recreational vehicle, plaintiffs also purchased an extended service plan administered by ITT Commercial Finance, which extended the warranty on the vehicle for five years or 50,000 miles. The cost of this extended service plan was added to the purchase price of the recreational vehicle.
Plaintiffs' recreational vehicle was equipped with two electrical systems, a 120-volt alternating current (AC) system and a 12-volt direct current (DC) system, and an AC to DC converter system. The power converter unit in the vehicle had been manufactured by defendant MagneTek, Inc. (hereinafter "MagneTek").
During the first week of November 1993, plaintiffs loaned their recreational vehicle to Linda and Harvey Reep for a weekend. During the Reeps' travels, they turned on the vehicle's generator and the fan to the vehicle's ceiling air conditioner unit. Approximately five minutes later, the Reeps noticed heavy smoke and flames in the rear of the vehicle, in front of the bedroom area. The Reeps pulled the vehicle to the shoulder of the interstate and narrowly escaped, before the vehicle and all of its contents were destroyed by fire. The contents of the recreational vehicle included the following: a satellite dish and receiver box purchased by plaintiffs in September 1990 for $4,100.45, as well as various other personal property purchased for approximately $575.00 shortly after plaintiffs purchased the recreational vehicle in September 1989. At the time of the fire, the odometer reading on plaintiffs' recreational vehicle was approximately 10,000 miles.
James B. Alexander, an expert in the cause and origin of fires, examined plaintiffs' recreational vehicle after the fire. Mr. Alexander concluded that the fire began at the vehicle's electrical converter. Dr. James Samuel McKnight, an expert in the area of electro-mechanical engineering, also examined the vehicle after the fire. After examining the vehicle's electrical equipment, which included the vehicle's electrical power converter, control box, and junction box, Dr. McKnight concluded that the fire was due to a fault in the wiring, ultimately caused by improper insulation or mounting of the power converter, or an electrial fault in the power converter.
On 1 June 1995, plaintiffs instituted this action against defendant Sportscoach and defendant Coachmen alleging negligence and breach of implied and express warranties; and against defendant MagneTek alleging negligence and breach of the implied warranty of merchantability.
Defendants raised several defenses to plaintiffs' claims in their answers and amended answers, including the defenses of statute of limitations, the economic loss doctrine, and the Limited Warranty. Thereafter, defendants filed motions for summary judgment. Along with their motion, defendants Coachmen and Sportscoach filed the affidavit of Michael Pangburn, senior corporate counsel for defendant Coachmen and former senior corporate counsel for defendant Sportscoach. In response, plaintiffs filed the affidavits of Luther Moore and expert witness, Dr. McKnight. A second affidavit of Mr. Pangburn was subsequently filed, and later, a second affidavit of Mr. Moore was filed.
Defendants' motions for summary judgment were heard by Judge Thomas W. Ross during the 5 August 1996 civil session of Guilford County Superior Court. During the hearing, plaintiffs objected to the admission of the affidavits of Mr. Pangburn contending that the affidavits were not based on personal knowledge, that they set forth facts that would not be admissible into evidence at trial, and that they did not show the affiant to be competent to testify to the matters stated in the affidavits. The court overruled plaintiffs' objections and after considering all of the affidavits, the unverified pleadings, answers to interrogatories, responses to requests for productions of documents, briefs and arguments of counsel, Judge Ross entered an order, out of session (with the permission of the parties), granting defendants' motions for summary judgment. Plaintiffs appeal.
Plaintiffs present essentially two arguments on appeal:
(1) The trial court erred in admitting the affidavits of Michael Pangburn in support of defendants' motions for summary judgment; and
(2) The trial court erred in granting defendants' motions for summary judgment and dismissing the action of the plaintiffs.
For the reasons discussed herein, we find these arguments to be unpersuasive, and accordingly, affirm the order of the trial court.
I. Admission of Michael Pangburn's Affidavits
First, plaintiffs contend that the affidavits of Mr. Pangburn were incompetent because they were not made on personal knowledge, did not set forth such facts as would be admissible into evidence at trial, and did not show affirmatively that the affiant was competent to testify as to the matters stated therein. Therefore, defendant argues that the trial court erred in admitting these affidavits in support of defendants' motions for summary judgment. We do not agree.
This Court's standard of review on appeal of summary judgment is well-established. Summary judgment is properly granted if considering the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, there is no genuine issue of material fact and a party is entitled to judgment as a matter of law. N.C.R. Civ. P. 56; Davis v. Town of Southern Pines, 116 N.C. App. 663, 665, 449 S.E.2d 240, 242 (1994), disc. review denied, 339 N.C. 737, 454 S.E.2d 648 (1995). The moving party bears the burden of showing the lack of triable issue of fact. Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985). The moving party may meet its burden by showing that the nonmoving party's action is barred by an affirmative defense, such as the expiration of the applicable statute of limitation. Reece v. Homette Corp., 110 N.C. App. 462, 464, 429 S.E.2d 768, 769 (1993). Once the moving party meets its burden, the nonmoving party must "produce a forecast of evidence demonstrating that the [nonmoving party] will be able to make out at least a prima facie case at trial." Collingwood v. G.E. Real Estate Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989). The evidence is to be viewed in the light most favorable to the nonmoving party. Davis, 116 N.C. App. at 666, 449 S.E.2d at 242.
Rule 56(e) of the North Carolina Rules of Civil Procedure governs the form of affidavits, and provides:
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is ...