Gillespie v. American Motors Corp.

277 S.E.2d 100 (1981)

Joy O. GILLESPIE and Bailey Gillespie
v.
AMERICAN MOTORS CORPORATION, American Motors Sales Corporation, Jeep Corporation and Valley Motors Sales, Inc.

No. 8029SC603.

Court of Appeals of North Carolina.

April 21, 1981.

Tomblin & Perry by A. Clyde Tomblin and Vance M. Perry, Spindale, for plaintiffs-appellants.

Mullen, Holland & Harrell by Graham C. Mullen, Gastonia, for defendants-appellees American Motors Corp., American Motors Sales Corp. and Jeep Corp.

Golding, Crews, Meekins, Gordon & Gray by Marvin K. Gray and Ned A. Stiles, Charlotte and Hamrick, Bowen, Nanney & Dalton by Fred D. Hamrick, Jr., Rutherfordton, for defendant-appellee Valley Motor Sales, Inc.

ARNOLD, Judge.

The question which plaintiffs bring to this Court for review is whether their claims are barred by the statutes of limitation. It is urged that the negligence and strict liability causes of action were brought well within the six-year statute of limitations for product liability, as set out in G.S. 1-50(6). Plaintiffs further contend that the action was timely under G.S. 1-52(5), which prescribes a three-year statute of limitations for injury to the person not arising on contract, but limited by G.S. 1-52(16), which provides that such actions do not accrue until bodily harm or physical damage "becomes apparent or ought reasonably to have become apparent to the claimant, whichever event first occurs." Plaintiffs also argue that the cause of action for breach of warranty was filed within the three years allowed by G.S. 1-52(1) and as expanded by our decision in Styron v. Supply Co., 6 N.C.App. 675, 171 S.E.2d 41 (1969), regarding the continued unsuccessful attempts to repair the object of a repair contract.

Defendants aver that since the sale was made, and the defect in the vehicle was discovered prior to the effective date of the statutes urged by plaintiffs, the predecessor, G.S. 1-15(b) (repealed effective 1 October 1979) applies as a bar to plaintiffs' suit under all three causes of action. Defendants claim that under the proper interpretation of G.S. 1-15(b), the three-year period accrued at the time the defect in the vehicle was discovered and, therefore, the statute ran long before this suit was filed. Defendants argue further that the claim could not be revived by the legislature through the enactment of G.S. 1-50(6) and 1-52(5) and (16).

We agree that once a claim is barred by the running of the applicable statute of limitations, it cannot be revived by a subsequent action of the legislature. Stereo Center, Inc. v. Hodson, 39 N.C.App. 591, 251 S.E.2d 673 (1979). The central issue in this case therefore is whether G.S. 1-15(b) would have operated to bar plaintiffs' action prior to the enactment of its successor, 1-52(16), and G.S. 1-50(6).

G.S. 1-15(b) provides: "Except where otherwise provided by statute, a cause of action, ... having as an essential element bodily injury to the person or a defect in or damage to property which originated under circumstances making the injury, defect or damage not readily apparent to the claimant at the time of its origin, is deemed to have accrued at the time the injury was discovered by the claimant, or ought reasonably to have been discovered by him, whichever event first occurs...."

Plaintiffs alleged that the link between their physical injuries and the gas fumes in the vehicle was not discovered until 1978. Whether plaintiffs should have discovered the invasion of their legal rights prior to 1978 is a question for the jury and may not form the basis of defendants' motion to dismiss. Johnson v. Podger, 43 N.C. App. 20, 25, 257 S.E.2d 684, 689, disc. rev. denied 298 N.C. 806, 261 S.E.2d 920 (1979); see generally, Lauerman, The Accrual and Limitations of Causes of Actions for Nonapparent Bodily Harm and Physical Defects in Property in North Carolina, 8 Wake Forest L.Rev. 327 (1972). Assuming plaintiffs filed this action within three years from the time the action accrued, the action would not be barred by the statute of limitations in G.S. 1-52. If the plaintiffs' action was not barred, the legislature was at liberty to extend the time within which plaintiffs' rights could be asserted by enactment of 1-50(6). Stereo Center, Inc. v. Hodson, supra. Plaintiffs' causes of action based on the theories of negligence and strict liability were therefore improperly dismissed by the trial judge.

We likewise find that the plaintiffs' cause of action for breach of warranties was improperly dismissed. The term "goods" includes an automobile within the meaning of G.S. 25-2-105 of the Uniform Commercial Code. Rose v. Epley Motor Sales, 288 N.C. 53, 60, 215 S.E.2d 573, 577 (1975). The applicable statute of limitation is thus covered by G.S. 25-2-725(1) and (2):

(1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued.

(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered. (Emphasis added.)

It is uncontradicted that plaintiffs filed their complaint, though by only a few days, within four years after taking delivery of the automobile. Consequently, the judgment dismissing plaintiffs' claims must be

Reversed.

WELLS and HILL, JJ., concur.