Davidson v. Volkswagenwerk, A.G. , 78 N.C. App. 193 ( 1985 )

336 S.E.2d 714 (1985)

William A. DAVIDSON
v.
VOLKSWAGENWERK, A.G., a West German Corporation and Volkswagon of America, Inc., a New Jersey Corporation and Jordan Volkswagen, Inc.

No. 8526SC498.

Court of Appeals of North Carolina.

December 3, 1985.

Hamel, Hamel & Pearce, P.A. by Hugo A. Pearce, III, Charlotte, and Lewis, Babcock, Gregory & Pleicones by A. Camden Lewis and Daryl G. Hawkins, Columbia, for plaintiff-appellant.

Jones, Hewson & Woolard by Harry C. Hewson and Hunter M. Jones, Charlotte, for defendants-appellees Volkswagenwerk, A.G. and Volkswagon of America, Inc.

Caudle & Spears, P.A. by Lloyd C. Caudle and Thad A. Throneburg, Charlotte, for defendant-appellee Jordan Volkswagen, Inc.

JOHNSON, Judge.

The statute of repose, G.S. 1-50(6) provides:

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

G.S. 1-50(6) (1983).

The date of the initial purchase of the Volkswagon Bus was on or about 4 September 1974. By its clear language, the North Carolina statute of repose precludes this action.

Plaintiff does not contest the applicability of this statute as to four of his claims, rather he contends that this statute is unconstitutional. The constitutionality of this statute was unresolved at one time. Bolick v. American Barmag Corp., 54 N.C. App. 589, 284 S.E.2d 188 (1981), aff'd and mod., 306 N.C. 364, 293 S.E.2d 415 (1982). See also Tetterton v. Long Mfg. Co., 67 N.C.App. 628, 631, 313 S.E.2d 250, 251 (1984) (Becton concurring in the result). However, recent case law puts this issue to rest. G.S. 1-50(6) is constitutional. Colony Hill Condominium I Assoc. v. Colony Co., 70 N.C.App. 390, 320 S.E.2d 273 (1984), disc. rev. denied, 312 N.C. 796, 325 S.E.2d 485 (1985); Davis v. Mobilift Equipment Co., 70 N.C.App. 621, 320 S.E.2d 406 (1984), disc. rev. denied, 313 N.C. 328, 329 S.E.2d 385 (1985); Walker v. Santos, 70 N.C.App. 623, 320 S.E.2d 407 (1984).

Plaintiff contends that certain of his claims against defendant are viable even if our statute of repose is held to be constitutional. Plaintiff bases this contention upon the theory that an extraordinary, post-manufacture duty arises under certain circumstances and that a claim arising from the breach of this duty is beyond the purview of G.S. 1-50(6). We disagree. The language of the statute is clear. "No action for the recovery of damages for personal injury ... shall be brought...." G.S. 1-50(6) (emphasis added). G.S. 1-50(6) is intended to be a substantive definition of rights which sets a fixed limit after the time of the product's manufacture beyond which the seller will not be held liable. Bolick, supra. To accept plaintiff's theory would defeat the purpose of the statute. Therefore, we

Affirm.

HEDRICK, C.J., and WHICHARD, J., concur.