FREDEKING v. TRIAD AVIATION, INC.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

R.R. FREDEKING, II, )

)

Plaintiff, )

)

v. ) 1:20-cv-612

)

TRIAD AVIATION, INC., )

H&H PROPELLER SERVICE, INC. )

and AIRCRAFT ACCESSORIES OF )

OKLAHOMA, INC. )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

Before this court is Defendants Triad Aviation, Inc.’s and

H&H Propeller Service, Inc.’s Motion for Summary Judgment. (Doc.

33.)1 For the reasons provided herein, Defendants’ motion for

summary judgment will be granted as to Plaintiff’s first and

second claims. Defendants’ motion will be denied as to

Plaintiff’s third claim.

Additionally before this court is Defendants’ Motion to

Exclude and/or Limit Plaintiff’s Expert Testimony. (Doc. 37.)

1 All citations in this Memorandum Opinion and Order to

documents filed with this court refer to the page numbers

located at the bottom right-hand corner of the documents as they

appear on CM/ECF.

For the reasons provided herein, Defendants’ motion to exclude

will be denied.

I. FACTUAL BACKGROUND

This dispute centers around an alleged aircraft failure due

to an alleged overspeed event. The record evidence in the light

most favorable to the Plaintiff, the non-moving party, is as

follows.

Plaintiff R.R. Fredeking, II is a West Virginia resident.

(See First Am. Compl. (Doc. 15) at 1.) Defendants Triad

Aviation, Inc. and H&H Propeller Service, Inc. (collectively

“Defendants”) are North Carolina corporations with their

principal places of business in North Carolina.2 (See id. at 1;

see Answer of Defs. Triad Aviation, Inc. and H&H Propeller

Service, Inc. (“Defs.’ Answer”) (Doc. 17) at 1.)

A. Overhaul of Plaintiff’s Plane

Plaintiff owns a “Piper Malibu N567KC, a single engine

aircraft powered by a Continental TISIO 550c engine using a

variable pitch Hartzell propeller.” (First Am. Compl. (Doc. 15)

at 3.) Plaintiff contacted Defendants to discuss service work to

2 It appears to this court that Defendant Triad Aviation,

Inc. and Defendant H&H Propeller Service, Inc. are both part of

the same company or that Defendant H&H Propeller Service, Inc.

is a subsidiary of Defendant Triad Aviation, Inc. Although this

is not made clear in the parties’ filings, this court will

discuss the claims against both Defendants together.

be done on his plane. (See Ex. B, Pl.’s Aff. (Doc. 43) at 1–2.)

On January 2, 2019, Defendants emailed Plaintiff with an

estimate for an engine removal, overhaul, and re-installation;

total costs for the services approximated $69,500. (See id. at

5–7.) This initial estimate further stated that Defendants’

“warranty is 500 hours or one year, and then pro-rated to TBO on

parts.” (Id. at 6; id. at 7.) Here, “TBO” means “Time Between

Overhauls.” (Ex. C, Othman Rashed Tr. (“Pl.’s Excerpts of Othman

Rashed’s Dep.”) (Doc. 46) at 4.)

On February 4, 2019, Defendants emailed Plaintiff to inform

him that they were “still around 6+ weeks on engine overhauls,

but [they] hope that number will be lower by the time

[Plaintiff’s] aircraft arrives.” (Ex. B, Pl.’s Aff. (Doc. 43) at

8.)

On March 11, 2019, Plaintiff delivered his plane to

Defendants’ facility, (see id. at 2), and he signed a “work

authorization form” detailing the services Defendants would be

providing, (see Ex. 6, Mar. 11, 2019 Work AZ (Doc. 34-6) at 1).

Plaintiff also paid a deposit of $32,000 for Defendants’ work.

(See Ex. B, Pl.’s Aff. (Doc. 43) at 2.) According to the work

authorization form, Defendants were authorized to overhaul the

plane’s engine, overhaul the plane’s propeller and governor,

conduct an annual inspection, magnaflux the engine mount, check

the plane for corrosion, and check the seal between the

propeller and engine. (See Ex. 6, Mar. 11, 2019 Work AZ (Doc.

34-6) at 1–2; see also Pl.’s Excerpts of Othman Rashed’s Dep.

(Doc. 46) at 6.)

In completing the service work on Plaintiff’s plane,

Defendants first removed the engine from the plane. (See id.

at 7.) Then, they inspected the engine and plane, discovering

several other issues beyond those listed in the work

authorization that required repairs or replacement. (See Ex. 1,

Fredeking Depo. (“Defs.’ Excerpts of Pl.’s Dep.”) (Doc. 34-1) at

3; see also Pl.’s Excerpts of Othman Rashed’s Dep. (Doc. 46) at

7.) Defendants emailed Plaintiff to update him on the

newly-discovered issues and to receive authorization for

expenses beyond the initial estimate. (See Ex. 8, Apr. 25, 2019

Email (Doc. 34-8) at 1.) Defendant H&H Propeller Service, Inc.

also purchased a propeller governor, which Defendants installed

on the plane. (See Ex. 9, H&H Propeller Govr Work Order 23302

(Doc. 34-9) at 1.)

As part of the service work, Defendants conducted testing

on the plane. (See, e.g., Ex. D (“Pl.’s Excerpts of Richard

Diamond Dep.”) (Doc. 44) at 10.) Defendants also drained the

plane’s engine of oil, installed a new filter, and filled the

engine with new oil. (See id.) Additionally, Richard Diamond,

one of Defendants’ employees, conducted a ground run of the

engine to test the plane for any issues, which included filling

the propeller with oil. (See id. at 12.) Defendants used a

Triad-created checklist to inspect the plane, rather than a

checklist created by any plane parts manufacturers. (See id. at

13–14.)

Ultimately, on August 1, 2019, Defendants updated the

plane’s logbooks to indicate completion of the service work and

to return the plane to service. (See id. at 16–17; see also

Ex. 13, Engine Aircraft and Propeller Logbook Entries

(Doc. 34-13) at 1–3.)

In total, the service work cost Plaintiff $104,298.88. (See

Ex. B, Pl.’s Aff. (Doc. 43) at 12.) Hangar costs were

$27,872.20. (See id.) The engine overhaul charges were

$69,951.05, with $43,840.00 for labor, $18,960 for parts,

$5,500.00 for the crankcase, and $1,651.01 for tax. (See Ex. 11,

July 8, 2019 Work Order (Doc. 34-11) at 1.) Purchasing the

overhauled governor from Aircraft Accessories of Oklahoma cost

$2,775.35, as well as $50.35 for freight. (See Ex. 9, H&H

Propeller Govr Work Order 23302 (Doc. 34-9) at 1.) The propeller

overhaul cost $3,579.01, with $1,467.00 for labor, $1,977.01 for

parts, and $135 for materials. (See Ex. 12, H&H Propeller

Governor Work Order 23408 (Doc. 34-12) at 1.) Finally, refueling

the plane cost $121.27. (See Ex. B, Pl.’s Aff. (Doc. 43) at 12.)

B. Alleged Overspeed Events

On July 31, 2019, Defendants emailed Plaintiff to inform

him that the service work on his plane was completed. (See id.

at 11.) In that email, they included a detailed invoice for the

work, and they requested that Plaintiff reserve several hours

for him to conduct a test flight and for a final inspection.

(See id.)

On August 13, 2019, Plaintiff sent $72,298.88 to Defendants

via bank wire to remit the balance due for the service work.

(See id. at 3.) That same day, Plaintiff arrived at Defendants’

facility in Burlington, NC to pick up his plane. (See Ex. A,

Pl.’s Depo. (“Pl.’s Excerpts of Pl.’s Dep.”) (Doc. 42) at 18.)

He requested and received a copy of Defendants’ warranty when he

arrived. (See id. at 13.) Plaintiff testified that he believed

Defendants’ warranty was limited to what he had previously

received by email—stating that the warranty covered “500 hours

or one year.” (Id.) However, the warranty provided to Plaintiff

on August 13, 2019 stated:

TRIAD will repair or replace on an exchange basis any

engine or part supplied which within the applicable

one (1) year or 500 hour period is returned to TRIAD

and which upon examination is found to be defective in

materials and workmanship. . . .

. . . .

THIS IS A LIMITED WARRANTY. THE SOLE AND EXCLUSIVE

REMEDY UNDER THIS WARRANTY IS LIMITED TO REPAIR OR

REPLACEMENT AS SPECIFIED ABOVE. THERE ARE NO OTHER

WARRANTIES, EXPRESS OR IMPLIED. SPECIFICALLY, BUT

WITHOUT LIMITATION, THERE ARE NO IMPLIED WARRANTIES AS

TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR

PURPOSE. IN NO EVENT WILL TRIAD AVIATION, INC. BE

RESPONSIBLE FOR ANY INCIDENTAL OR CONSEQUENTIAL

DAMAGES ARISING OUT OF ANY DEFECT IN ANY ENGINE OR

PART, ARISING OUT OF THE FAILURE OF ANY ENGINE OR PART

TO OPERATE PROPERLY, OR ARISING OUT OF ANY BREACH OF

THIS WARRANTY. . . .

(Ex. 14, Warranty (Doc. 34-14) at 1–3 (emphasis in original).)

On August 13 and 14, 2019, Plaintiff performed two test

flights while accompanied by Richard Diamond, one of Defendants’

employees. (See Pl.’s Excerpts of Pl.’s Dep. (Doc. 42) at 15.)

During each of those two test flights, Plaintiff identified

several issues needing further repair that Richard Diamond

addressed or tried to address. (See id. at 18–20.) Plaintiff

performed a brief third test flight. (See id. at 20.) Finally,

on August 14, 2019, Plaintiff flew back to Huntington, West

Virginia with his wife as a fourth and final test flight. (See

id. at 21–22.)

Plaintiff alleges that during his approach to Huntington,

approximately five to six miles from the runway, Plaintiff’s

plane experienced an overspeed event of approximately “4,000

RPMs.” (See id. at 24–25.) Plaintiff continued descending

towards Huntington, and closer to the runway, he alleges that a

second overspeed event occurred. (See id. at 26.) Finally, while

Plaintiff was taxiing on the runway, he alleges that a third

overspeed event occurred. (See id. at 27.) There remains a

genuine dispute of material fact on these overspeed events, as

Defendants dispute whether any overspeed events occurred at all.

(See Mem. of Law in Supp. of Defs. Triad Aviation Inc. and H&H

Propeller Service, Inc.’s Mot. for Summ. J. (“Defs.’ Summ. J.

Br.”) (Doc. 34) at 1.)

Plaintiff explained that he was informed by the engine and

propeller manufacturers that neither the plane, nor the engine,

were airworthy due to the overspeed events. (See Pl.’s Excerpts of

Pl.’s Dep. (Doc. 42) at 29; see Ex. B, Pl.’s Aff. (Doc. 43) at 3.)

Plaintiff was unable to receive a ferry permit from the Federal

Aviation Authority to have the plane flown back to Defendants’

facility. (See Ex. B, Pl.’s Aff. (Doc. 43) at 3.)

On August 15, 2019, Plaintiff mailed Defendants a letter

raising his concerns around Defendants’ service work and to

inform them of the overspeed events. (See Pl.’s Excerpts of

Pl.’s Dep. (Doc. 42) at 33.) Plaintiff contacted Othman Rashed,

one of Defendants’ employees, about the overspeed events;

Plaintiff testified that Mr. Rashed required Plaintiff to bring

the plane or engine back to Defendants’ facility in North

Carolina for them to perform any repairs. (See id. at 5.)

Richard Diamond further testified that if a plane cannot be

flown back to Defendants’ facility for repairs, the plane’s

engine would need to be removed at the plane’s location and

brought back to Defendants’ facility; however, to Mr. Diamond’s

knowledge, Defendants had never conducted such repairs at a

plane’s location previously. (See Pl.’s Excerpts of Richard

Diamond Dep. (Doc. 44) at 11.)

Soon after the overspeed events, Plaintiff ordered a new

engine, (see Ex. 16, Aug. 22, 2019, Purchase Order (Doc. 34-16)

at 1), and a new propeller, (see Ex. 17, Oct. 2, 2019, Purchase

Order (Doc. 34-17) at 1), from their respective manufacturers to

replace the allegedly-faulty engine and propeller Defendants had

serviced and installed.

C. Airplane Inspections

On October 25, 2019, Plaintiff filed his first complaint in

the United States District Court for the Southern District of

West Virginia. See Compl., Fredeking v. Triad Aviation. Inc.,

No. 3:19-cv-00777 (S.D.W.V. Mar. 27, 2020), Doc. 1. The West

Virginia complaint has since been dismissed, leading to the

present case before this court. See Mem. Op. and Order,

Fredeking v. Triad Aviation. Inc., No. 3:19-cv-00777 (S.D.W.V.

Mar. 27, 2020), Doc. 11 (granting Defendants’ motion to dismiss

for lack of personal jurisdiction). Because some of the relevant

events occurred following the initial filing in the Southern

District of West Virginia, the factual background will first

address those events before discussing the filing of this case

in the Middle District of North Carolina. See infra Part II.

On October 31, 2019, Plaintiff’s counsel sent a letter to

Defendants, “provid[ing] [Defendants] 20 days from the date of

this letter to conduct” an inspection of the plane “prior to the

replacement of [its] engine and prop[eller].” (See Ex. 18,

Oct. 31, 2019 Letter from B. Mundy to B. Ware (Doc. 34-18) at

1.) Between November 2019 and February 2020—when Plaintiff had

the plane’s engine replaced so he could use his plane once

again—the parties struggled to agree on a date for Defendants to

come to West Virginia to inspect the plane. (See Mem. Op. and

Order (Doc. 72) at 5–9.)

On February 18, 2020, Plaintiff had the plane engine

replaced. (See Pl.’s Excerpts of Pl.’s Dep. (Doc. 42) at 23.)

Defendants’ employees and Defendants’ expert, Dennis Handley,

attended the engine replacement. (See Ex. 24, Feb. 21, 2020

Letter to Pl. re Following up on Inspection (Doc. 34-24) at 1–

2.) During the engine replacement, Mr. Handley took notes and

photographs of the plane and engine, physically manipulated the

propeller governor, conducted a visual examination of the

propeller governor, and took a sample of oil from the propeller

governor. (See Ex. F (“Pl.’s Excerpts of Dennis Handley Dep.”)

(Doc. 44-2) at 3.) Several photos were taken of the oil from the

propeller governor, but the sample was not kept for testing.3

(See Ex. G (“Pl.’s Excerpts of Douglas Sleeman Dep.”)

(Doc. 44-3) at 2.)

However, Defendants were not permitted to conduct extensive

testing, including a transfer collar test, of the plane at that

time. (See Ex. 24, Feb. 21, 2020 Letter to Pl. re Following up

on Inspection (Doc. 34-24) at 2–3.)

The propeller and propeller governor were removed from the

plane and preserved for future testing. (See Ex. 2, Mar. 24,

3 Plaintiff seems to imply that Mr. Handley purposefully

failed to retain this oil sample. (See, e.g., Pl.’s Mem. of P. &

A. in Opp. to Defs. Triad Aviation, Inc. and H&H Propeller

Service, Inc.’s Mot. for Summ. J. (“Pl.’s Summ. J. Opp. Br.”)

(Doc. 41) at 14 (titling a section as “Spoliation of Evidence by

Defendants’ Expert”); id. at 15–16 (“Despite knowing the

importance of the propeller governor as it relates to potential

overspeed events, and the fact that there was no agreed upon

inspection protocol in place, Mr. Handley physically manipulated

the propeller governor during the February 18, 2020 inspection.

Physically turning the driveshaft and the control arm could

dislodge any particulate or contaminate causing the governor to

malfunction.”) (internal citations omitted); id. at 16 (“Despite

the evidence showing physical signs of contamination, Mr.

Handley did not preserve the sample of oil he personally

captured from the propeller governor.”).) Defendants refute

Plaintiff’s assertion that Mr. Handley purposefully failed to

retain the oil sample. (See, e.g., Reply Memorandum in Supp. of

Defs.’ Mot. for Summ. J. (“Defs.’ Reply”) (Doc. 49) at 8-9.)

Plaintiff has not filed a motion for sanctions for spoliation of

evidence, so this court will not address this issue further at

this time.

2020 Letter to Mundy (Doc. 40-2) at 1.) However, the plane’s

engine was not preserved for additional testing, and Plaintiff

returned the engine to its manufacturer, Continental Motor

Group.4 (See Defs.’ Excerpts of Pl.’s Dep. (Doc. 34-1) at 8.)

On November 11, 2021, Plaintiff and Defendants attended a

bench inspection of the plane’s propeller governor. (See Pl.’s

Excerpts of Dennis Handley Dep. (Doc. 44-2) at 3.) Texas

Aircraft Propeller & Accessories bench-tested the plane

propeller and propeller governor. (See Ex. 29, Texas Aircraft

Inspection Conclusion (Doc. 34-29) at 1.) They found no evidence

that either the propeller, or the propeller governor, operated

outside of design limitations. (See id.) Additionally, oil

samples were collected for further testing. (See Ex. 30, Edwards

Suppl. Report (Doc. 34-30) at 5.)

Finally, on January 24, 2022, Mr. Handley combined the oil

samples collected during the November 11, 2021 inspection and

shipped them to AvLab for testing. (See Ex. 26, Handley Am.

Report (Doc. 34-26) at 4.) Mr. Handley reported that AvLab found

4 Defendants have brought a motion for sanctions for

spoliation of evidence because they were not able to inspect the

plane engine. (See Doc. 39.) Defendants again raise the issue of

spoliation of evidence in their summary judgment briefing. (See

Doc. 34 at 6–8.) As this court has addressed the issue of

spoliation separately, (see Doc. 72), this court will not

further discuss the issue of spoliation in this Memorandum

Opinion and Order.

that “[a]ll oil values seem fine for the engine break-in cycle.”

(See id.)

D. Material Disputes over Experts’ Findings

Plaintiff has disclosed two expert witnesses: Douglas

Sleeman and Jeffrey Edwards. (See Ex. 32, Pl.’s Second Am.

Expert Witness Disclosure (Doc. 34-32) at 1–2.) Defendants have

identified one expert witness: Dennis Handley. (See Ex. J,

Defs.’ Expert Disclosure (Doc. 44-6) at 1.) Both parties’ expert

witnesses disagree on whether any overspeed events occurred, and

if so, on the cause of the alleged overspeed events. (Compare

Ex. 26, Handley Am. Report (Doc. 34-26) at 1, with Ex. H

(“Douglas Sleeman Investigation Report”) (Doc. 44-4) at 7.)

Thus, there exists a genuine dispute of material fact on

the occurrence of any overspeed events and on whether

Defendants’ service work caused the alleged overspeed events.

Plaintiff’s first expert, Jeffrey Edwards, provided notes,

observations, and photographs from the November 11, 2021

propeller and propeller governor bench test by Texas Aircraft

Propeller & Accessories, as well as summaries of the

February 18, 2020 engine replacement and the January 24, 2022

oil sample collection and testing. (Ex. 30, Edwards Suppl.

Report (Doc. 34-30) at 1–7.)

Plaintiff’s second expert, Douglas Sleeman, issued a report

finding that “the probable cause of the engine and propeller

overspeeds were due to a malfunction of the propeller governor,

most likely due to contamination.” (Douglas Sleeman

Investigation Report (Doc. 44-4) at 7.) Mr. Sleeman explained

that “[t]here is evidence of contaminated oil from within the

governor.” (Id.)

Mr. Sleeman’s findings were based on reviewing video

footage and photos of the February 18, 2020 engine replacement,

attending the November 11, 2021 propeller and propeller governor

bench test by Texas Aircraft Propeller & Accessories via video

conference, and analyzing Mr. Edwards’ report. (See id. at 1–7;

see also id. at 40–41.) He arrived at his conclusion by going

through a process of elimination to identify possible failure

modes that could result in an overspeed event. (See Pl.’s

Excerpts of Douglas Sleeman Dep. (Doc. 44-3) at 5–8.) He also

explained that the photos of oil from the propeller governor

taken during the February 18, 2020 engine replacement showed

visible contamination.

Q: All right. And how does that show contaminated

oil?

A: Well, you see the dark oil that has leaked

onto the paper? That’s also supplemented by the

next page which shows oil collected from the

governor in the bottom of this container that is

dark and obviously there’s particulates in it as

well. There’s a collection that Mr. Handley said

came from the governor probably from him moving

the input lever and turning the driveshaft to try

to drain the oil out.

. . . .

Q: . . .[Y]ou claim that you observed some

particles in the oil that it wasn’t necessary to

go any further in terms of doing a thorough

scientific analysis of what may have caused the

propeller overspeed; is that correct?

A: Yeah, in so many words I guess I would agree.

There was evidence of contamination and there

wasn’t any other evidence of another cause

regarding the governor so, yeah, based on the

evidence [that] was there.

Q: Well, there was no other evidence of cause

because some of the tests [that] could have

revealed other causes were not conducted; is that

a fair assessment?

A: No, I don’t think I’d necessarily agree with

that. . . . Some of those tests are just a matter

of process of elimination. You might say just

thoroughness of an investigation, but there

wasn’t any suggestion in the functional tests

that they ran that necessary needed to be done. I

would have just done them for thoroughness.

. . . .

Q: . . .[D]o you have any idea as to where [the

oil] contamination came from?

A: Well, contamination in the governor came from

the engine. I don’t believe it was done by the

Oklahoma people when they assembled and tested

the governor and shipped it out since the oil in

the engine was so apparently dirty as it were.

The oil – the contamination hadn’t come from the

oil; that comes from the engine.

(Id. at 2–9.) In his deposition, Mr. Sleeman further described

the contamination as a “phantom particle” that was “lost or

dislodged” during the course of the investigation. (Id. at 6.)

In his expert report, Defendants’ expert, Dennis Handley,

shared notes and observations from the February 18, 2020 engine

replacement, the November 11, 2021 propeller and propeller

governor bench test, and the January 24, 2022 oil sample

collection and testing. (See Ex. 26, Handley Am. Report (Doc.

34-26) at 2–4.) Mr. Handley reported that “no physical evidence

has been discovered to identify any source of the alleged

propeller overspeed . . . . I can find nothing specifically done

by Triad Aviation, Inc., that would have caused a propeller

overspeed condition.” (Id. at 4–5.) However, in his deposition,

Mr. Handley did acknowledge several issues on the plane “that

came directly from [Triad], that should not have happened,” as

well as issues that an “annual inspection should . . . have

discovered . . . .” (Pl.’s Excerpts of Dennis Handley Dep. (Doc.

44-2) at 4.) Furthermore, regarding the oil sample he collected

and photographed during the February 20, 2020 engine

replacement, Mr. Handley conceded that the “sample shows

particulates” and that “brand new oil should not have that.”

(Id. at 6.)

II. PROCEDURAL HISTORY

On October 25, 2019, Plaintiff filed his first complaint in

the United States District Court for the Southern District of

West Virginia. See Compl., Fredeking v. Triad Aviation. Inc.,

No. 3:19-cv-00777 (S.D.W.V. Mar. 27, 2020), Doc. 1. The West

Virginia complaint has since been dismissed, leading to the

present case before this court. See Mem. Op. and Order,

Fredeking v. Triad Aviation. Inc., No. 3:19-cv-00777 (S.D.W.V.

Mar. 27, 2020), Doc. 11 (granting Defendants’ motion to dismiss

for lack of personal jurisdiction).

On July 2, 2020, Plaintiff filed his complaint in the

Middle District of North Carolina, (see Compl. (Doc. 1)), and

subsequently filed his amended complaint, (see First Am. Compl.

(Doc. 15)). Originally, Plaintiff brought claims against Triad

Aviation, Inc., H&H Propeller Service, Inc., and Aircraft

Accessories of Oklahoma, Inc. (See id.) Plaintiff’s claims

against Aircraft Accessories of Oklahoma were dismissed with

prejudice. (See Dec. 16, 2021 Order (Doc. 28).) Plaintiff

currently brings three claims against the remaining two

Defendants: (1) breach of the implied warranty of

merchantability, (2) negligent repairs, and (3) breach of

contract. (See First Am. Compl. (Doc. 15) at 7–9.)

Defendants filed a motion for summary judgment, (see

Doc. 33), along with a supporting memorandum, (see Defs.’ Summ.

J. Br. (Doc. 34)). Plaintiff responded in opposition. (See Pl.’s

Summ. J. Opp. Br. (Doc. 41).) Defendants replied. (See Defs.’

Reply (Doc. 49).) Defendants’ motion for summary judgment is

ripe for disposition.

Defendants also filed a motion for sanctions for spoliation

of evidence, (see Doc. 39), which this court has addressed

separately, (see Doc. 72).

Finally, Defendants filed a motion to exclude and/or limit

Plaintiff’s Expert Testimony, (see Doc. 37), as well as a

supporting memorandum, (see Defs.’ Triad Aviation, Inc. and H&H

Propeller Service, Inc.’s Br. in Supp. of their Mot. to Exclude

and or limit Pl.’s Expert Test. (“Defs.’ Mot. to Exclude Br.”)

(Doc. 38)). Plaintiff responded in opposition. (See Doc. 47.)

Defendants replied. (See Doc. 50.) Defendants’ motion to exclude

is also ripe for disposition.

III. Defendants’ Motion to Exclude and/or Limit Plaintiff’s

Expert Testimony

Defendants have filed a motion to exclude Plaintiff’s

expert testimony. (See Doc. 37.) Defendants move to exclude both

of Plaintiff’s experts, Douglas Sleeman and Jeffrey Edwards.

(See id.) This court finds that Defendants’ motion ultimately

attacks the credibility and weight of Plaintiff’s experts’

testimony, not the reliability or admissibility of the experts’

testimony. Thus, Defendants’ motion will be denied as to either

of Plaintiff’s experts.

A. Legal Standard

Federal Rule of Evidence 702 provides:

A witness who is qualified as an expert by knowledge,

skill, experience, training, or education may testify

in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other

specialized knowledge will help the trier of fact

to understand the evidence or to determine a fact

in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles

and methods; and

(d) the expert has reliably applied the principles and

methods to the facts of the case.

Fed. R. Evid. 702.

In Daubert v. Merrell Dow. Pharms., Inc., 509 U.S. 579

(1993), the Supreme Court clarified “that it is the duty of the

trial court to perform the gatekeeping function with respect to

expert testimony: ‘the trial judge must ensure that any and all

scientific testimony or evidence admitted is not only relevant,

but reliable.’” United States v. Prince-Oyibo, 320 F.3d 494, 498

(4th Cir. 2003) (emphasis in original) (quoting Daubert, 509

U.S. at 589). The Supreme Court in Daubert provided a list of

non-exclusive factors a court should consider in assessing the

reliability of expert testimony: (1) whether the particular

scientific theory or technique “can be (and has been) tested”;

(2) whether the theory “has been subjected to peer review and

publication”; (3) “the known or potential error rate”; (4) the

existence and maintenance of standards controlling the

technique’s operation; and (5) whether the technique has

achieved widespread acceptance in the relevant scientific

community. Daubert, 509 U.S. at 593–94. A trial court has

“considerable leeway” both in determining an expert’s

reliability and in its ultimate conclusion on admissibility. See

Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152–53 (1999).

B. Douglas Sleeman

Defendants raise three arguments in support of excluding

Plaintiff’s expert Douglas Sleeman’s testimony: (1) his “opinion

is not supported by sufficient facts or data,” (Defs.’ Mot. to

Exclude Br. (Doc. 38) at 16); (2) he “employed unreliable

methodology in arriving at his opinion,” (id. at 18); and

(3) his “opinion is not relevant and therefore will not aid the

jury,” (id. at 20).

This court finds that Mr. Sleeman’s testimony is

sufficiently based on facts and data, that he uses reliable

methods to reach his findings, and that his opinion is relevant

to a material issue. Thus, Defendants’ motion to exclude

Mr. Sleeman’s expert opinion will be denied.

1. Mr. Sleeman’s Opinion is Supported by Facts and

Data.

First, Defendants contend that Mr. Sleeman’s testimony is

not based on sufficient facts or data because he relies solely

on a photo of allegedly-contaminated oil from the February 8,

2020 engine replacement to develop his contaminated oil theory

of causation. (Defs.’ Mot. to Exclude Br. (Doc. 38) at 16–18.)

Defendants argue that Mr. Sleeman “has no data,

measurements, or other scientific analysis regarding the

particulate matter he claims existed in the oil in the photos.”

(Id. at 17.) However, per his expert report, Mr. Sleeman relied

on process of elimination to arrive at his opinion that

contaminated oil caused the overspeed events. (Ex. 28, Sleeman

Suppl. Report with page numbers (Doc. 34-28) at 5–7.) Process of

elimination has been considered a valid scientific approach for

an expert to reach their opinion. See Esposito v. Home Depot

U.S.A., Inc., No. 06-153S, 2010 WL 5173338, at *2 (D.R.I.

Dec. 14, 2010) (explaining that process of elimination is

“fundamentally no different than a ‘differential diagnosis’ in

the medical context, in which all reasonable hypotheses are

systemically ruled out in order to determine the most probable

cause of a problem”). Thus, Mr. Sleeman’s process of elimination

is a sufficient “scientific analysis” for arriving at his

conclusions.

Furthermore, Defendants contend that Mr. Sleeman “ignor[ed]

the scientific tests, inspections, data and analysis from Texas

Aircraft.” (Defs.’ Mot. to Exclude Br. (Doc. 38) at 17.)

However, Mr. Sleeman’s process of elimination approach appears

to account for findings from all three inspections, including

the Texas Aircraft analysis. (See Ex. 28, Sleeman Suppl. Report

with page numbers (Doc. 34-28) at 5–7; see, e.g., id. at 7 (“The

propeller functioned properly on test, the pitch stops were

properly set and no indication of piston seal failure. There was

no visible evidence of damage caused by the overspeeds.”)

Finally, Defendants argue that the photo of

allegedly-contaminated oil that Mr. Sleeman relies on does not

actually demonstrate evidence of oil contamination, particularly

given the AvLab test results. (See Defs.’ Mot. to Exclude Br.

(Doc. 38) at 16.) In fact, Defendants argue that Mr. Sleeman

“ignored the laboratory test results of AvLab showing the oil to

be normal. . . .” (Id.) However, in his deposition, Mr. Sleeman

explained why he discounted the AvLab oil test results, so he

does not “ignore” them. (See Pl.’s Excerpts of Douglas Sleeman

Dep. (Doc. 44-3) at 3.) To that end, Mr. Sleeman explained that

physical manipulation of different parts of the plane during the

February 18, 2020 engine replacement could have caused the

contamination visible in the oil sample photos to be dislodged,

so it would not be present in the oil sample taken months later

and tested by AvLab. (See id. at 3, 6.) In his deposition,

Defendants’ expert, Mr. Handley, seems to corroborate Mr.

Sleeman’s findings, explaining that the February 20, 2020

“sample shows particulates” and that “[b]rand new oil should not

have that.” (Pl.’s Excerpts of Dennis Handley Dep. (Doc. 44-2)

at 6.)

In sum, this court finds that Mr. Sleeman’s opinion is

adequately supported by facts and evidence for Rule 702

purposes.

2. Mr. Sleeman’s Methodology is Reliable.

Second, Defendants contend that “Mr. Sleeman’s methodology

of supposedly excluding other potential causes to arrive at the

phantom particle theory is flawed.” (Defs.’ Mot. to Exclude Br.

(Doc. 38) at 18.) However, this argument is unconvincing.

Process of elimination is a reliable methodology for an expert

to use to arrive at his conclusion. See Esposito, 2010 WL

5173338, at *2; see also supra Section III.B.1. Mr. Sleeman

reviewed video footage and photos of the February 18, 2020

engine replacement, attended the November 11, 2021 propeller and

propeller governor bench test via video conference, and analyzed

Mr. Edwards’ report and notes of the November 11, 2021

inspection. (See Douglas Sleeman Investigation Report (Doc. 44-

4) at 1–7.) He then “consider[ed] all the likely potential

failure modes which would cause a sustained overspeed[,] . . .

us[ing] the process of elimination to determine the most

probable cause or causes.” (Id. at 5.)

Additionally, Defendants contend that Mr. Sleeman’s process

of elimination method was flawed because Mr. Sleeman admits that

other tests could have been conducted as well. (See Defs.’ Mot.

to Exclude Br. (Doc. 38) at 18–19.) Although Mr. Sleeman

acknowledges in his deposition that other tests may have been

helpful, he explains that those other tests would have been to

“doublecheck” a leakage issue. (See Pl.’s Excerpts of Douglas

Sleeman Dep. (Doc. 44-3) at 11.) Furthermore, from Mr. Sleeman’s

deposition, it appears that he ruled out issues that these

additional tests would have revealed, (see id.)—which is the

very outcome Defendants would expect if there was no overspeed

event, as they claim. Even if additional tests would have been

helpful to corroborate his ultimate conclusions, this argument

goes to the credibility and weight of Mr. Sleeman’s opinion,

rather than the reliability of his methodology.

That Mr. Sleeman does not point to peer reviewed studies

discussing the phantom particle theory does not require

exclusion of his testimony. “[W]here an expert otherwise

reliably utilizes scientific methods to reach a conclusion, lack

of [peer review or publication] may go to the weight, not the

admissibility of the expert’s testimony.” Summit 6, LLC v.

Samsung Elecs. Co., 802 F.3d 1283, 1298 (Fed. Cir. 2015)

(quoting Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 354

(5th Cir. 2007)) (internal quotation marks omitted). “To the

extent [Mr. Sleeman’s] credibility, data, or factual assumptions

have flaws, these flaws go to the weight of the evidence, not to

its admissibility.” Id. at 1299. Ultimately, this court finds

that Mr. Sleeman’s methodology was based on reliable principles.

3. Mr. Sleeman’s Opinion is Relevant.

Third, Defendants contend that Mr. Sleeman’s opinion is not

relevant because he does not directly “factually connect the

‘phantom particle’ to any work of Defendants that would have

caused the phantom particle.’” (Defs.’ Mot. to Exclude Br.

(Doc. 38) at 20.) However, Mr. Sleeman’s expert opinion speaks

directly to potential causes of the alleged overspeed events.

(See Douglas Sleeman Investigation Report (Doc. 44-4) at 7.) He

explains that “the probable cause of the engine and propeller

overspeeds were due to a malfunction of the propeller governor,

most likely due to contamination.” (Id.) Because it is

undisputed that Defendants did fill the plane engine with oil,

(see Pl.’s Excerpts of Richard Diamond Dep. (Doc. 44) at 10),

and Defendants’ expert acknowledged that “brand new oil should

not have” contaminants (see Pl.’s Ex. of Dennis Handley Dep.

(Doc. 44-2) at 6), contaminated oil appears reasonably relevant

to causation issues.

There remains a genuine factual dispute about what caused

the alleged overspeed events, so Mr. Sleeman’s opinion on

causation will help the jury determine a fact at issue. Thus,

this court finds that Mr. Sleeman’s opinion is relevant.

Mr. Sleeman’s opinion is supported by facts, his

methodology is reliable, and his opinion is relevant to material

issues. This court will deny Defendant’s motion to exclude Mr.

Sleeman’s expert testimony.

C. Jeffrey Edwards

In their motion, Defendants assert that Jeffrey Edwards’

expert testimony should also be excluded. (See Doc. 37 at 1.)

Defendants provide no arguments specific to Mr. Edwards’

testimony in their brief. (See generally Defs.’ Mot. to Exclude

Br. (Doc. 38) at 5–6.) The gravamen of Defendants’ argument

regarding Mr. Edwards’ testimony appears to be that he provides

mere observations, not opinion testimony. (See id.)

However, Mr. Edwards observed and reported findings from

the November 11, 2021 inspection and the AvLab oil sample test.

(Ex. 30, Edwards Suppl. Report (Doc. 34-30) at 1–7.) His

observations require specialized knowledge, i.e., “[t]he speeder

spring and rack were intact with no distress noted.” (Id. at 3.)

Determination of the cause of any overspeed events is the

product of direct and circumstantial evidence, with the

circumstantial evidence requiring an analysis of which parts of

the plane were in good working order and which were not or which

parts may be suspect.

Additionally, Mr. Edwards’ testimony would provide more

than mere observations, but also his opinion on the methods by

which the various tests were conducted. For example, in his

deposition testimony, he discusses when and how oil sampling and

testing should have been conducted compared to how it was

actually conducted; this would help a finder of fact determine

any weight to assign the results of the AvLab oil sample

testing. (See Ex. B, Pl.’s Excerpts of Jeffrey Edwards Dep.

(Doc. 47-2) at 2.)

This court finds that Mr. Edwards’ expert testimony is

admissible. Defendants’ motion to exclude his testimony will be

denied.

IV. Defendants’ Motion for Summary Judgment

Defendants have filed a motion for summary judgment on all

three of Plaintiff’s claims. (See Doc. 33.) First, they argue

that Plaintiff does not establish that Defendants caused the

alleged overspeed event, so all of Plaintiff’s claims should be

dismissed. (See Defs.’ Summ. J. Br. (Doc. 34) at 12–13). Second,

Defendants argue that Plaintiff’s claim for breach of the

implied warranty of merchantability should be dismissed for

several reasons. (See id. at 14–17). Third, they argue that

Plaintiff’s claim for negligent repairs should be dismissed

under North Carolina’s economic loss rule. (See id. at 13–14).

Fourth, they argue that Plaintiff’s claim for breach of contract

should be dismissed because Plaintiff has not shown any evidence

of breach. (See id. at 17–19). Fifth, Defendants reassert their

position on spoliation of evidence. (See id. at 19–22).

This court will grant summary judgment in favor of

Defendants on Plaintiff’s claim for breach of the implied

warranty of merchantability and on Plaintiff’s claim for

negligent repairs. However, this court will deny summary

judgment on Plaintiff’s claim for breach of contract. Finally,

this court has addressed Defendants’ position on spoliation of

evidence, as well as Defendants’ motion for sanctions, (see Doc.

39), in a separate Memorandum Opinion and Order, (see Doc. 72).

A. Legal Standard

In reviewing a motion for summary judgment, this court must

determine whether there remains a “genuine dispute as to any

material fact.” Fed. R. Civ. P. 56(a). “Once a defendant makes a

properly supported motion for summary judgment, the burden

shifts to the plaintiff to set forth specific facts showing that

there is a genuine issue for trial.” Sylvia Dev. Corp. v.

Calvert Cty. Md., 48 F.3d 810, 817 (4th Cir. 1995). “On summary

judgment the inferences to be drawn from the underlying

facts . . . must be viewed in the light most favorable to the

party opposing the motion.” United States v. Diebold, Inc., 369

U.S. 654, 655 (1962) (per curiam). If there is no genuine

dispute about any fact material to the moving party’s claim,

then “the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a).

A factual dispute is genuine when “the evidence is such

that a reasonable jury could return a verdict for the nonmoving

party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986); see also First Nat’l Bank of Ariz. v. Cities Serv. Co.,

391 U.S. 253, 289–90 (1968) (stating that a dispute is not

genuine for summary judgment purposes when one party rests

solely on allegations in the pleadings and does not produce any

evidence to refute alternative arguments). This court must look

to substantive law to determine which facts are material—only

those facts “that might affect the outcome of the suit under the

governing law will properly preclude the entry of summary

judgment.” Anderson, 477 U.S. at 248.

In addition, “the mere existence of some alleged factual

dispute between the parties will not defeat an otherwise

properly supported motion for summary judgment.” Id. at 247-48.

“[T]he non-moving party must do more than present a ‘scintilla’

of evidence in its favor.” Sylvia Dev., 48 F.3d at 818 (citing

Anderson, 477 U.S. at 252). Ultimately, “there is no issue for

trial unless there is sufficient evidence favoring the nonmoving

party for a jury to return a verdict for that party.”

Anderson, 477 U.S. at 249.

B. Breach of Implied Warranty of Merchantability

Plaintiff brings a claim for breach of the implied warranty

of merchantability under the Uniform Commercial Code (“UCC”).

(See First Am. Compl. (Doc. 15) at 7.) Defendants argue that

Plaintiff’s claim fails for three reasons: (1) the propeller

governor sold by Defendants to Plaintiff was found to have no

defects; (2) Defendants’ express warranty disclaimed any implied

warranties; and (3) the UCC does not apply to Plaintiff’s

contract with the Defendants, as the contract was for services,

not sale of goods. (See Defs.’ Summ. J. Br. (Doc. 34) at 15–17.)

This court finds that the UCC does not apply to Plaintiff’s

contract with the Defendants, so Plaintiff’s claim for the

implied warranty of merchantability is not applicable. Thus,

summary judgment in favor of Defendants is appropriate for

Plaintiff’s first claim.5

Although the UCC typically governs transactions for goods,

not contracts for the provision of services, the UCC may also

govern mixed contracts for goods and services. See N.C. Farm

Bureau Mut. Ins. v. Strickland’s Auto & Truck Repairs, Inc., No.

1:19cv513, 2021 WL 633646, at *11 (M.D.N.C. Feb. 18, 2021).

“When a contract is a mixed one for the sale of goods and

services, the Fourth Circuit has held that ‘[w]hether a

particular transaction is governed by the U.C.C. rather than the

common law or other statutory law, hinges on the predominant

purpose of the transaction. . . .’” Parks v. Alteon, Inc., 161

F. Supp. 2d 645, 649 (M.D.N.C. 2001) (quoting Princess Cruises,

Inc. v. General Elec. Co., 143 F.3d 828, 832-22 (4th Cir.

1998)). A panel of the Fourth Circuit has held, persuasively,

that courts should consider three factors to determine the

contract’s primary purpose: “(1) the language of the contract;

5 Although Defendants raise three arguments in favor of

summary judgment, this court only addresses one—whether the UCC

applies to Plaintiff’s contract with Defendant at all. Because

this court finds that the UCC does not apply, this court need

not address Defendants’ other two arguments.

the nature of the business of the supplier; and (2) the

intrinsic worth of the materials involved.” RMS Tech., Inc. v.

TDY Indus., Inc., 64 F. App’x 853, 855 (4th Cir. 2003). For the

reasons discussed below, the three factors considered together

suggest the predominant purpose of the contract was provision of

services, not sale of goods. Thus, the UCC does not govern the

agreement and the implied warranty of merchantability does not

apply.

1. The Language of the Contract

First, the language of the contract suggests that the

predominant purpose of the contract was to provide services—to

overhaul Plaintiff’s plane engine and conduct an inspection—not

to sell goods. The original email with Defendants’ estimate

discusses “the overhaul of [a] Continental TSIO-550-C engine.”

(Ex. B, Pl.’s Aff. (Doc. 43) at 6.) “Overhaul” of a plane engine

is “synonymous” with “repair,” where “[r]epair means to restore

by replacing a part or putting together what is torn or broken,

to restore to a sound or healthy state.” Melton v. Jewell,

No. 1:02-CV-1242-T/P, 2006 WL 8434931, at *2 (W.D. Tenn. Sept.

12, 2006) (cleaned up). This definition of overhaul suggests an

agreement to provide a service, not to sell a good. The

agreement also included removal and reinstallation of the

engine. (See id. at 7.) The work authorization form Plaintiff

signed details a list of services or repairs, not a list of

parts or goods to be sold. (See Ex. 6, Mar. 11, 2019 Work AZ

(Doc. 34-6) at 1–2.)

However, two facts may suggest a goods contract rather than

a services contract. Defendants’ invoices include separate line

items for parts versus labor. (See Ex. 11, July 8, 2019 Work

Order (Doc. 34-11) at 1; see Ex. 12, H&H Propeller Governor Work

Order 23408 (Doc. 34-12) at 1.) Additionally, under the

agreement, Defendants sold a propeller governor to Plaintiff and

installed it in the plane. (See Ex. 9, H&H Propeller Govr Work

Order 23302 (Doc. 34-9) at 1; see also Ex. 12, H&H Propeller

Governor Work Order 23408 (Doc. 34-12) at 1.) Even so, the

language of the contract still favors a services contract, as it

appears the parts were all sold in furtherance of the parties’

goal to ensure the plane was airworthy and ensure the plane

could pass its inspection, all as a result, primarily, of the

services provided.

2. The Nature of Defendants’ Businesses

The second factor—the nature of Defendants’ businesses—is

not dispositive of whether the parties’ agreement deals

predominantly with goods or services. Defendant H&H Propeller

Service, Inc. “is in the business of selling and servicing

airplane propellers, and in some instances selling and servicing

propeller governors,” which suggests that sale of goods is part

of its business. (Defs.’ Answer (Doc. 17) at 2.) In contrast, on

its official estimates and invoices, Defendant Triad Aviation,

Inc. is listed as an “FAA Certified Repair Station,” which

suggests that its main area of work is servicing planes, not

selling goods. (See, e.g., Ex. B, Pl.’s Aff. (Doc. 43) at 7.)

Further, Defendants collectively describe their businesses as

“companies engaged in the maintenance of aircraft,” (Defs.’

Summ. J. Br. (Doc. 34) at 2), again suggesting a contract for

services.

Thus, it is unclear from the nature of Defendants’

businesses whether the agreement was predominantly for the sale

of goods or the performance of services. On the evidence

provided, this court finds that this second factor does not

support a finding of either a goods or a services contract.

3. Intrinsic Worth of the Materials Involved

The third factor—the intrinsic worth of the materials

involved—supports finding that the parties’ agreement was for

services, not for sale of goods. In transactions for vehicle

repairs, when evaluating this factor, courts have compared

charges for labor versus charges for parts. See N.C. Farm Bureau

Mut. Ins., 2021 WL 633646, at *12 (finding that the third factor

concerning the intrinsic worth of the materials involved favored

a contract for the sale of goods when replacement parts provided

by an auto shop cost $7,987.40 while labor cost $4,500).

The service work resulted in a total charge to Plaintiff of

$104,298.88. (See Ex. B, Pl.’s Aff. (Doc. 43) at 12.) Hangar

costs were $27,872.20. (See id.) The engine overhaul charges

were $69,951.05, with $43,840.00 for labor, $18,960 for parts,

$5,500.00 for the crankcase, and $1,651.01 for tax. (See Ex. 11,

July 8, 2019 Work Order (Doc. 34-11) at 1.) Purchasing the

overhauled governor from Aircraft Accessories of Oklahoma cost

$2,775.35, as well as $50.35 for freight. (See Ex. 9, H&H

Propeller Govr Work Order 23302 (Doc. 34-9) at 1.) The propeller

overhaul cost $3,579.01, with $1,467.00 for labor, $1,977.01 for

parts, and $135 for materials. (See Ex. 12, H&H Propeller

Governor Work Order 23408 (Doc. 34-12) at 1.) Finally, refueling

the plane cost $121.27. (See Ex. B, Pl.’s Aff. (Doc. 43) at 12.)

Excluding hangar costs, refueling costs, taxes, and freight,

Plaintiff paid $45,307 in total for labor and $29,162.01 in

total for parts and the crankcase.6 The cost for services exceeds

the cost for parts, suggesting that the third factor weighs

towards a services contract. Cf. BMC Indus., Inc. v. Barth

Indus., Inc., 160 F.3d 1322, 1330 (11th Cir. 1998)

(“[W]hen . . . the charge for goods exceeds that for services,

the contract is more likely to be for goods.”).

There is no material dispute as to the facts concerning the

relevant language of the contract, the nature of Defendants’

businesses, or the intrinsic worth of the materials involved;

instead, the parties dispute the legal conclusions to be drawn

from these facts. Here, the three factors considered together

suggest the predominant purpose of the parties’ agreement was

for services, not for sale of goods. The first and third factors

directly weigh in favor of finding that services were the

6 In North Carolina Farm Bureau Mut. Ins., the court only

considered the value of replacement parts versus the value of

labor in determining the intrinsic value of the materials

involved. N.C. Farm Bureau Mut. Ins., 2021 WL 633646, at *12. As

a result, this court only considers Defendants’ invoice line

items that are clearly labeled as labor or parts when evaluating

the third factor. However, even if this court considered hangar

costs and refueling costs, this court’s finding that the third

factor weighs towards a services contract does not change. This

is because providing hangar space would likely be considered a

service, while fuel and materials would be goods. When

considering labor, parts, hangar costs, fuel, and materials (and

only excluding taxes and freight), Plaintiff paid $73,179.20 for

services and $29,418.28 for goods. Here again, the cost for

services exceeds the cost for parts, suggesting that the third

factor still weighs towards a services contract.

predominant purpose of the parties’ transaction. The second

factor does not clearly suggest that the agreement was solely

for the sale of goods or services, but one factor alone is not

dispositive. See N.C. Farm Bureau Mut. Ins. Co., 2021 WL 633646,

at *12. Thus, because the predominant purpose for the contract

was provision of services, this court finds that the contract at

issue is a services contract not governed by the UCC. As the

implied warranty of merchantability only applies for contracts

for the sale of goods governed by the UCC, see N.C. Gen. Stat.

§ 25-2-314, it does not apply to the parties’ transaction. This

court will grant summary judgment in favor of Defendants on

Plaintiff’s claim under the implied warranty of merchantability.

C. Negligent Repairs

Plaintiff’s second claim is for negligent repairs, (see

First Am. Compl. (Doc. 15) at 7–8), but Plaintiff also advances

this claim under a theory of negligence per se, (see Pl.’s Summ.

J. Opp. Br. (Doc. 41) at 17–21). Plaintiff explains that

“Defendants owed a duty to the Plaintiff to conduct the engine

and propeller overhaul and the annual inspection of his aircraft

in a reasonable and prudent manner.” (First Am. Compl. (Doc. 15)

at 8.) He alleges that “Defendants breached their duty to the

Plaintiff by failing to ensure the plane was airworthy in that

the Piper Malibu experienced a propeller overspeed less than

three hours after the Plaintiff picked up the aircraft from the

Defendants’ possession.” (Id.) Plaintiff further argues that

“Defendants were per se negligent in the way they completed the

subject overhaul in that they simply failed up uphold the

obligations imposed under the Federal Aviation Regulations.”

(Pl.’s Summ. J. Opp. Br. (Doc. 41) at 19 (emphasis in

original).)

Defendants argue that summary judgment in their favor is

appropriate on Plaintiff’s negligence claim because Plaintiff’s

claim is “precluded as a matter of law under the economic loss

doctrine, as Plaintiff claims Breach of Contract against

Defendants.” (Defs.’ Summ. J. Br. (Doc. 34) at 13.) They further

explain that “Plaintiff’s damages are confined to those arising

from property damage to the aircraft itself. Accordingly,

Plaintiff may not recover against Defendants in tort . . . .”

(Id. at 14 (internal citations omitted).)

This court finds that Plaintiff’s negligence claim is not

an independent tort from his breach of contract claim such that

Plaintiff may bring both contract and tort claims. Thus, this

court will grant summary judgment in favor of Defendants on

Plaintiff’s negligence claim.

“In North Carolina, the economic loss rule ‘generally bars

recovery in tort for damages arising out of a breach of

contract.’” Intercollegiate Women’s Lacrosse Coaches Ass’n v.

Corrigan Sports Enters., Inc., 505 F. Supp. 3d 570, 592

(M.D.N.C. 2020) (quoting Rountree v. Chowan Cty., 252 N.C. App.

155, 159, 796 S.E.2d 827, 830 (2017)). Courts must “limit

plaintiffs’ tort claims to only those which are identifiable and

distinct from the primary breach of contract claim.” Legacy Data

Access, Inc. v. Cadrillion, LLC, 889 F.3d 159, 164 (4th

Cir. 2018) (quoting Broussard v. Meineke Disc. Muffler Shops,

Inc., 155 F.3d 331, 346 (4th Cir. 1998)). Accordingly, “an

action in tort must be grounded on violation of a distinct duty

to the plaintiff and ‘not a violation of a duty arising purely

from the contractual relationship of the parties.’” Babb v. Wade

Hampton Golf Club, Inc., No. 21-cv-333, 2022 WL 2760238, at *2

(W.D.N.C. Jul. 14, 2022) (quoting Rountree, 252 N.C. App. at

160, 796 S.E.2d at 831). The Fourth Circuit distinguishes an

independent tort from a preexisting contractual duty: “[w]e

think it unlikely that an independent tort could arise in the

course of contractual performance, since those sorts of claims

are most appropriately addressed by asking simply whether a

party adequately fulfilled its contractual obligations.” Strum

v. Exxon Co., U.S.A., a Div. of Exxon Corp., 15 F.3d 327, 333

(4th Cir. 1994).

Here, Plaintiff’s negligence claim is not a tort

independent of his breach of contract claim. The parties’

dispute centers around Defendants’ alleged “fail[ure] to ensure

[Plaintiff’s] plane was airworthy.” (Compare First Am. Compl.

(Doc. 15) at 8 (alleging Plaintiff’s negligence claim) with id.

at 8–9 (alleging Plaintiff’s breach of contract claim as the

“failure of the Triad Defendants in conducting the engine and

propeller overhaul in a workmanlike manner . . . resulting in

and causing the propeller overspeed”). Plaintiff bargained his

plane’s service work in exchange for over $100,000. (See Ex. B,

Pl.’s Aff. (Doc. 43) at 12.) Thus, Plaintiff’s claim for

negligent repairs arises under Defendants’ obligations to

perform plane repairs as set forth in the parties’ agreement.

To identify a distinct independent tort separate from his

breach of contract claim, Plaintiff posits a negligence per se

theory on the grounds that Defendants failed to comply with

Federal Aviation Regulations (“FARs”):

Defendants are subject to strict Federal Aviation

Regulations, which dictate who and in what manner

maintenance can be performed on an aircraft. . . .

Defendants were under the extra-contractual

obligations imposed by Federal Aviation Regulations to

conduct the subject overhaul in accordance with the

Continental Manuals, and to conduct the subject annual

inspection in accordance with Part 43. Here,

Defendants failed on both accounts. . . . [This

failure] resulted in Defendants improperly certifying

Plaintiff’s aircraft as airworthy and returning it to

service before all required post-overhaul tests were

completed. Not only was this a technical violation of

the Federal Aviation Regulations, but the effects of

these corner-cutting failures were clearly

demonstrated by the extreme number of problems still

plaguing the aircraft when Fredeking arrived to pick

it up in August 2019.

(Pl.’s Summ. J. Opp. Br. (Doc. 41) at 18–20 (emphasis in

original) (internal citations omitted).) However, Defendants’

duties to Plaintiff under the FARs are still encompassed by

their duties under the contract because Defendants suggest that

they comply with the relevant air safety regulations when

performing their service work. (See, e.g., Ex. 3, Estimate for

Continental TSIO-550-C (Doc. 34-3) at 1 (“All of our engines are

overhauled to factory new limits. All A.D. Notes will be

complied with at the time of the overhaul. Any parts necessary

for A.D. or S.B. compliance will be an additional charge.”);

Ex. 4, Removal and Reinstallation Estimate (Doc. 34-4) at 1

(describing Defendant Triad Aviation, Inc. as an “FAA Certified

Repair Station”).)

Noncompliance with a regulation does not necessarily

constitute an independent tort as an exception to the economic

loss rule. See Strum, 15 F.3d at 332. For example, in Strum, the

plaintiff argued that the defendant “did not follow various

North Carolina Department of Environment, Health, and Natural

Resources (“DEHNR”) reporting requirements . . . .” Id. He

argued that violating the DEHNR regulations constituted gross

negligence. See id. The Fourth Circuit was “not persuaded”—

explaining that “any sanction for noncompliance with DEHNR

regulations most appropriately lies with that agency . . . .”

Id. Ultimately, the Fourth Circuit found that the plaintiff’s

claim “really arises out of [the defendant’s] performance on the

contract, not out of the type of distinct circumstances

necessary to allege an independent tort.” Id. at 332–33. The

Fourth Circuit affirmed the grant of summary judgment for the

defendant. Id. at 333.

Although the Strum plaintiff was arguing gross negligence,

not negligence per se, the same principles apply here because

the Fourth Circuit’s reasoning was not focused on the specific

theory of negligence the plaintiff advanced, but rather, on the

duties imposed by the parties’ agreement compared to the duties

imposed under tort law. See id. at 332–33. Here, Defendants’

contractual duties were to overhaul Plaintiff’s plane, repair

the plane to ensure it was airworthy, and conduct an annual

inspection—all pursuant to the FARs. The regulations did not

result in additional and independent duties, but merely governed

how Defendants performed their contractual duties.

Thus, the economic loss rule bars Plaintiff’s negligence

claim. This court will grant summary judgment in favor of

Defendants on Plaintiff’s second claim for negligent repairs.

D. Breach of Contract

Plaintiff’s final claim is for breach of contract. (See

First Am. Compl. (Doc. 15) at 8–9.) Defendants assert that

Plaintiff has not provided any evidence to support a breach of

contract claim. (See Defs.’ Summ. J. Br. (Doc. 34) at 17–19.)

Defendants argue that Plaintiff’s expert testimony is

inadmissible and that Plaintiff’s claim “rests entirely on Mr.

Sleeman’s unfounded opinion that the propeller and engine

overspeeds were most likely due to contamination, and that a

phantom particle caused the propeller governor to stick,

resulting in the overspeeds.” (Id. at 18.) They further argue

that “Mr. Sleeman has never identified any particular work by

Defendants that caused the supposed contamination.” (Id. at 19.)

Ultimately, Defendants’ argument is based on causation—that

Plaintiff has not shown evidence that Defendants’ work caused

the alleged overspeed events, so there is no breach of contract.

Plaintiff argues that Defendants have breached multiple

terms of the contract: (1) Defendants failed to complete their

work in six weeks when they took five months to complete the

service work, (see Pl.’s Summ. J. Opp. Br. (Doc. 41) at 21–22);

(2) Defendants failed to overhaul the plane engine to “factory-

new limits” when the plane experienced multiple overspeeds

during the fourth test flight, (see id. at 22); (3) Defendants

failed to properly conduct an annual inspection when they failed

to identify the contaminated oil that caused the overspeed

events, (see id.); and (4) Defendants failed to honor the terms

of their warranty when they required Plaintiff to bring the

plane back to Defendants’ facility in North Carolina for them to

conduct any repairs following the overspeed event, (see id.).

Under North Carolina law, “[i]nterpreting a contract

requires the court to examine the language of the contract

itself for indications of the parties’ intent at the moment of

execution.” State v. Philip Morris USA Inc., 359 N.C. 763, 773,

618 S.E.2d 219, 225 (2005). “It must be presumed the parties

intended what the language used clearly expresses, and the

contract must be construed to mean what on its face it purports

to mean.” Hartford Accident & Indem. Co. v. Hood, 226 N.C. 706,

710, 40 S.E.2d 198, 201 (1946) (internal citation omitted).

“When the language of a contract is plain and unambiguous[,]

then construction of the agreement is a matter of law for the

court.” Whirlpool Corp. v. Dailey Constr., Inc., 110 N.C. App.

468, 471, 429 S.E.2d 748, 751 (1993).

If, however, the language of a contract “is ambiguous and

the intention of the parties is unclear, interpretation of the

contract is for the [finder of fact],” and summary judgment is

not appropriate. Glover v. First Union Nat’l Bank of N.C., 109

N.C. App. 451, 456, 428 S.E.2d 206, 209 (1993). A contract is

ambiguous “when either the meaning of words or the effect of

provisions is uncertain or capable of several reasonable

interpretations.” Register v. White, 358 N.C. 691, 695, 599

S.E.2d 549, 553 (2004). In determining whether a contract is

ambiguous, “words are to be given their usual and ordinary

meaning and all the terms of the agreement are to be reconciled

if possible.” Piedmont Bank and Tr. Co. v. Stevenson, 79 N.C.

App. 236, 241, 339 S.E.2d 49, 52 (1986).

The elements of a North Carolina breach of contract claim

are “(1) existence of a valid contract and (2) breach of the

terms of that contract.” Poor v. Hill, 138 N.C. App. 19, 26, 530

S.E.2d 838, 843 (2000). The parties do not dispute a valid

contract existed; rather, the parties dispute whether Defendant

breached the contract. This court finds that there are genuine

issues of material fact as to whether any overspeed events

occurred, whether Defendants’ work caused the alleged overspeed

events, and whether Defendants failed to honor their warranty.

Accordingly, this court will deny summary judgment on

Plaintiff’s claim for breach of contract.

1. Overview of the Parties’ Agreement

Before analyzing the parties’ arguments regarding breach of

contract, this court will first provide a brief overview of the

undisputed facts and legal implications of the parties’

agreement.

Defendants sent Plaintiff an email estimate for an engine

overhaul on January 2, 2019. (See Ex. 3, Estimate for

Continental TSIO-55-C (Doc. 34-3) at 1.) This estimate quoted an

engine overhaul price of $62,800; the price included “the

magnetos, harness, spark plugs, starter, fuel injection system,

turbocharger, controller, waste gate, and new cylinders.” (Id.)

It further stated that Defendants would notify Plaintiff “of any

additional charges exceeding $200.00 prior to proceeding” with

those repairs. (Id.) Finally, it stated that Defendants’

“warranty is 500 hours or one year, and then pro-rated to TBO on

parts. Warranties on accessories are as provided by the

supplier.” (Id.)

Also on January 2, 2019, Defendants sent Plaintiff an email

estimate for removal and reinstallation of the engine for

purposes of overhauling the engine. (See Ex. 4, Removal and

Reinstallation Estimate (Doc. 34-4) at 1.) This estimate quoted

a removal and reinstallation price of $5,500, as well as an

engine mount replacement price of $1,200. (See id.) It also

noted that the estimated price did “not include any additional

discrepancies” identified later; those discrepancies could

result in additional charges, as the estimate was “subject to

revision.” (See id.) For example, the estimate stated that

“[c]rankcase and crankshaft repair or replacement is not

included, and will require extra time and cost if required.”

(Id. (emphasis omitted).) Again, it stated that Defendants would

notify Plaintiff “of any additional charges directly applicable

to the engine overhaul which exceed $200.00 prior to

proceeding.” (Id.) The engine removal and reinstallation

estimate included the same warranty language as the engine

overhaul estimate: “You will be pleased to know that our engine

warranty is 500 hours or one year, and then pro-rated to TBO on

parts.” (Id.)

On March 11, 2019, when Plaintiff delivered his plane to

Defendants’ facility, Plaintiff signed a “work authorization

form” that detailed the services Defendants were to provide.

(See Ex. 6, Mar. 11, 2019 Work AZ (Doc. 34-6) at 1; see Ex. B,

Pl.’s Aff. (Doc. 43) at 2.) The work authorization form listed

the following services: (1) engine overhaul; (2) propeller and

governor overhaul; (3) annual inspection; (4) magnaflux engine

mount; (5) checking the aircraft for corrosion; and (6) checking

the seal between the propeller and engine for leaks. (See Ex. 6,

Mar. 11, 2019 Work AZ (Doc. 34-6) at 1–2.)

These three documents summarize the parties’ initial

agreement as to the services Defendants were providing

Plaintiff. See Croom v. Goldsboro Lumber Co., 182 N.C. 217, 220,

108 S.E. 735, 737 (1921) (holding that there must be a meeting

of the minds for a contract to form). The two estimates provided

on January 2, 2019, (see Ex. 3, Estimate for Continental

TSIO-550-C (Doc. 34-3) at 1; see Ex. 4, Removal and

Reinstallation Estimate (Doc. 34-4) at 1), specify the price for

Defendants’ services. See Shelton v. Duke Univ. Health Sys., 179

N.C. App. 120, 123, 633 S.E.2d 113, 115 (2006) (explaining that

a contract must have a definite price term). The March 11, 2019

work authorization form is definite as to the services

Defendants were to provide in accordance with the parties’

agreement because it listed all the services Defendants would

provide, as well as Defendants’ warranty. See Elks v. North

State Life Ins., 159 N.C. 619, 626, 75 S.E. 808, 811 (1912)

(explaining that an offer’s terms must be sufficiently definite,

not just an invitation to deal). Plaintiff’s signature on the

work authorization form shows Plaintiff’s assent to the

agreement. See Mosely v. WAM, Inc., 167 N.C. App. 594, 599, 606

S.E.2d 140, 143 (2004) (explaining that a signature constitutes

assent to a contract).

On April 25, 2019, Defendants emailed Plaintiff to inform

him that “[t]he engine inspection [was] complete” and to request

Plaintiff’s authorization for additional repairs. (See Ex. 8,

April 25, 2019 Email (Doc. 34-8) at 1.) These additional repairs

constitute a modification of the parties’ original agreement, as

the email lists new services to be performed for an additional

charge. (See id.) The additional charge for each additional

repair serves as consideration for the contract modification.

See Brenner v. Little Red School House, Ltd., 302 N.C. 207, 215,

274 S.E.2d 206, 212 (1981) (“Where . . . a contract has been

partially performed, an agreement to alter its terms is treated

as any other contract and must be supported by consideration.”)

Based on the evidence presented, this court finds that

these four documents comprise the parties’ agreement regarding

the service work to be performed on Plaintiff’s plane.7

2. Completing the Service Work in Six Weeks was not

a Term of the Contract.

Plaintiff asserts that the parties agreed that Defendants’

service work would be completed within six weeks based on

Defendants’ email on February 4, 2019, stating that Defendants

were “still around 6+ weeks on engine overhauls, but [they] hope

7 Defendants’ work orders, (see Ex. 9, H&H Propeller Govr

Work Order 23302 (Doc. 34-9); Ex. 11, July 8, 2019 Work Order

(Doc. 34-11); Ex. 12, H&H Propeller Governor Work Order 23408

(Doc. 34-12)), provide clarification on the price term of the

parties’ agreement because they provide a detailed breakdown of

the charges to Plaintiff. However, they do not constitute new or

additional agreements.

that number will be lower by the time [Plaintiff’s] aircraft

arrives.” (Ex. B, Pl.’s Aff. (Doc. 43) at 8.)

North Carolina’s rules of contract interpretation require

an agreement to be construed as a whole and to determine the

intent of the parties “from the entire instrument and not from

detached portions. Individual clauses are to be considered in

context. All parts of the contract will be given effect if

possible.” Int’l Paper Co. v. Corporex Constructors, Inc., 96

N.C. App. 312, 316, 385 S.E.2d 553, 555–56 (1989) (internal

citation omitted). A contract is ambiguous if “the meaning of

words or the effect of provisions is uncertain or capable of

several reasonable interpretations.” Register, 358 N.C. at 695,

599 S.E.2d at 553. When a court is asked to interpret an

ambiguous contract, summary judgment is not appropriate. Glover,

109 N.C. App. at 456, 428 S.E.2d at 209.

After consideration of the entirety of the communications

between the parties leading to the work authorization form

Plaintiff signed on March 11, 2019, this court finds that a six-

week deadline was not a term of the contract. (See Ex. B, Pl.’s

Aff. (Doc. 43) at 8; see Ex. 6, Mar. 11, 2019 Work AZ (Doc. 34-

6) at 1–2.) Material contract terms require mutuality of assent.

See Normile v. Miller, 313 N.C. 98, 103, 326 S.E.2d 11, 15

(1985) (“[A]ssent. . . requires an offer and acceptance in the

exact terms . . . .”) “[W]hen no time is specified in a contract

for the performance of an act or the doing of a thing, the law

implies that it may be done or performed within a reasonable

time.”8 Winders v. Hill, 141 N.C. 694, 704, 54 S.E. 440, 444

(1906).

The work authorization form lists the service work

Plaintiff authorized, Plaintiff’s contact information, and

Plaintiff’s plane details. (See Ex. 6, Mar. 11, 2019 Work AZ

(Doc. 34-6) at 1–2.) Plaintiff signed the work authorization

form. (See id. at 1.) It does not include any deadlines or any

language suggesting that time was of the essence. (See id.)

Further, Defendants’ February 4, 2019 email is merely an

estimate, not an agreed-upon deadline. Without mutual assent,

Plaintiff’s asserted six-week deadline for Defendants’

performance is not a term of the parties’ agreement. This court

concludes that there are no disputed issues of fact as to

whether the contract required completion within six weeks.

8 Defendants do not argue that, in the alternative,

completion of the service work within five months was

performance within a reasonable time. Similarly, Plaintiff does

not argue that five months was an unreasonable delay. Thus, this

court will not address whether Defendants’ performance occurred

within a reasonable time or whether Defendants’ five-month

timeline for performance constitutes breach.

Thus, this court finds that Defendants did not breach the

contract by completing the service work in six weeks.9

3. There are Genuine Disputes of Material Fact on

Whether Any Overspeed Events Occurred and on

Whether Defendants’ Service Work Caused the

Alleged Overspeed Events.

Plaintiff argues that Defendants breached the contract due

to the overspeed events for two reasons. First, the occurrence

of the overspeed events means that Defendants failed to properly

overhaul the plane engine. (See Pl.’s Summ. J. Opp. Br.

(Doc. 41) at 22.) Second, the presence of contaminated oil that

Plaintiff asserts caused the overspeed events means that

Defendants did not properly conduct an annual inspection. (See

id.)

The parties dispute whether the overspeed events occurred.

(Compare Defs.’ Summ. J. Br. (Doc. 34) at 1 (“Defendants assert

there is no corroborative evidence to Plaintiff’s self-serving

9 Even assuming, arguendo, that the contract required

completion within six weeks, there does not appear to be any

dispute of fact that the initial work was solely for engine

overhaul, propeller and governor overhaul, and an annual

inspection. (See Ex. 6, Mar. 11, 2019 Work AZ (Doc. 34-6) at 1–

2.) Further, there does not appear to be any dispute that

additional work was required. (See Ex. 8, April 25, 2019 Email

(Doc. 34-8) at 1.) Any alleged contract provision of a six-week

deadline would be limited solely to the work agreed-upon

initially and listed in the March 11, 2019 work authorization

form, not any additional work found to be necessary later.

statement that a propeller overspeed occurred.”), with Pl.’s

Summ. J. Opp. Br. (Doc. 41) at 2 (“[Defendants] failures also

resulted in the overspeed events . . . .”).)10

The parties also dispute whether Defendants caused the

alleged overspeed events and whether there was any contaminated

oil that may have caused the alleged overspeed events. (Compare

Defs.’ Summ. J. Br. (Doc. 34) at 1 (“Even if an overspeed

occurred, which is denied, Plaintiff has failed to present any

credible evidence that Defendants’ work caused it.”), and Ex.

26, Handley Am. Report (Doc. 34-26) at 5 (“[N]o physical

evidence has been discovered to identify any source of the

alleged propeller overspeed . . . . I can find nothing

specifically done by Triad Aviation, Inc., that would have

caused a propeller overspeed condition.”), with Pl.’ Summ. J.

Opp. Br. (Doc. 41) at 2 (Defendants “failed in the most simple

and commonly understood engine maintenance task of ensuring that

the newly overhauled engine was filled with clean and

uncontaminated oil. This final and ultimate failure caused the

aircraft’s engine to sustain multiple fatal overspeed

events . . . .”), and Douglas Sleeman Investigation Report

10 Plaintiff’s statement may or may not be self-serving.

Regardless, it is direct evidence of an overspeed event, whether

corroborated or not. The jury will decide the weight to be

assigned to the statement.

(Doc. 44-4) at 7 (“[T]he probable cause of the engine and

propeller overspeeds were due to a malfunction of the propeller

governor, most likely due to contamination.”).)

“[D]isputes over facts that might affect the outcome of the

suit under the governing law will properly preclude the entry of

summary judgment.” Anderson, 477 U.S. 242 at 248. If “there are

any genuine factual issues that properly can be resolved only by

a finder of fact because they may reasonably be resolved in

favor of either party,” summary judgment is not appropriate. Id.

at 250. Here, “a fair-minded jury could return a verdict for the

plaintiff on the evidence presented.” Id. at 252. Thus, the

existence of genuine disputes of material fact on the occurrence

and cause of the overspeed events precludes summary judgment.

4. Defendants’ Warranty Appears to be a Modification

of the Parties’ Agreement.

Finally, Plaintiff argues that Defendants breached the

contract by failing to honor their warranty when they required

Plaintiff to bring the plane back to Defendants’ facility in

North Carolina to conduct any repairs following the overspeed

events. (See Pl.’s Summ. J. Opp. Br. (Doc. 41) at 22.)

Defendants argue that “Plaintiff’s assertion is disingenuous as

Plaintiff prevented Defendants from honoring the Warranty terms

by preventing Defendants from examining the engine to determine

if it was defective in materials or workmanship and then

disposing of it.” (Defs.’ Reply (Doc. 49) at 7–8.)

Defendants initially represented their warranty as “500

hours or one year, and then pro-rated to TBO on parts” in their

estimate for engine removal, overhaul, and re-installation

services. (Ex. B, Pl.’s Aff. (Doc. 43) at 6; id. at 7.) Nowhere

in these communications did they state that customers must

return the plane to Defendants’ facility to receive repairs

pursuant to the warranty. (See id.) Similarly, these

communications did not state that a full warranty will be

provided later or that this representation was not the full

warranty. (See id.)

On August 13, 2019, after completion of the service work

when Plaintiff arrived at Defendants’ facility in Burlington,

North Carolina to pick up his plane, he received a full copy of

Defendants’ express warranty. (See Pl.’s Excerpts of Pl.’s Dep.

(Doc. 42) at 13.) This express warranty provided that:

TRIAD will repair or replace on an exchange basis any

engine or part supplied which within the applicable

one (1) year or 500 hour period is returned to TRIAD

and which upon examination is found to be defective in

materials and workmanship.

(Ex. 14, Warranty (Doc. 34-14) at 1 (emphasis added).) It

appears that this express warranty is the first time Plaintiff

was informed that Defendants’ warranty required Plaintiff to

return the plane or any parts to Defendants’ facility in North

Carolina to receive the benefits of their warranty. (See Pl.’s

Excerpts of Pl.’s Dep. (Doc. 42) at 5; see also Pl.’s Summ. J.

Opp. Br. (Doc. 41) at 11 (“According to Fredeking, the response

from Defendants was there was absolutely no way they would

replace they engine they overhauled, and they would also only

perform any needed repairs to the engine if Fredeking brought

the plane back to Burlington, NC.”).)

Here, the original warranty term provided to Plaintiff in

the parties’ emails and estimates served as a term of their full

agreement. When Plaintiff arrived at Defendants’ facility in

North Carolina, he had fully paid for the service work, (see Ex.

B, Pl.’s Aff. (Doc. 43) at 3); thus, he had fully performed on

his obligations to the agreement. By providing a lengthier

warranty statement disclaiming their prior warranty and

requiring engines or parts to be returned to Defendants, it

appears that Defendants sought to modify the original contract.11

A modification to the terms of a contract must be supported by

consideration. See Brenner, 302 N.C. at 215, 274 S.E.2d at 212

(“Where . . . a contract has been partially performed, an

agreement to alter its terms is treated as any other contract

and must be supported by consideration.”). Thus, summary

judgment is not appropriate for breach of contract regarding

Defendants’ failure to honor their warranty.

11 The parties have not provided extensive arguments on

whether the August 19, 2019 warranty is a modification to the

original service agreement. Plaintiff states: “Defendants

attempted to deny Fredeking the benefit of the bargained for

warranty contained within the contract by attempting to hold

Fredeking to an unconscionable and impracticable warranty that

was not even provided until after the work was completed.”

(Pl.’s Summ. J. Opp. Br. (Doc. 41) at 22.) In their reply,

Defendants focus on the assertion that the August 19, 2019

warranty was “unconscionable and impracticable.” (Defs.’ Reply

(Doc. 49) at 7.) However, without further argument, this court

cannot fully consider whether the warranty was actually

“unconscionable or impracticable.”

Defendants further argue that Plaintiff prevented

Defendants from honoring the warranty “by preventing Defendants

from examining the engine . . . .” (Id. at 7–8.) However, it

appears that Defendants refused to honor their original warranty

provided on January 2, 2019 even before the issue of inspecting

the engine for purposes of litigation arose. When Plaintiff

originally contacted Othman Rashed, one of Defendants’

employees, about the overspeed event, Plaintiff testified that

Mr. Rashed required Plaintiff to return the plane or engine back

to Defendants’ facility in North Carolina for Defendants to

perform any repairs. (See Pl.’s Excerpts of Pl.’s Dep. (Doc. 42)

at 5.) Thus, Defendants’ statement that Plaintiff did not allow

them to honor the warranty is not convincing.

In sum, there remain genuine issues of material fact

related to whether any overspeed events occurred, whether those

overspeed events were caused by Defendants’ service work,

whether the service work breached the contract, and whether

Defendants attempted to modify their warranty without

consideration; these issues preclude summary judgment on

Plaintiff’s third claim for breach of contract.

V. CONCLUSION

For the foregoing reasons, Defendants’ motion to exclude

Plaintiff’s expert testimony, (Doc. 37), will be denied.

Defendants’ motion for summary judgment will be granted in part

and denied in part. Summary judgment will be granted on

Plaintiff’s claim for breach of the implied warranty of

merchantability because this court finds that the UCC does not

govern the parties’ agreement. Additionally, summary judgment

will be granted on Plaintiff’s claim for negligent repairs

pursuant to North Carolina’s economic loss rule. Finally, summary

judgment will be denied on Plaintiff’s claim for breach of

contract because this court finds that there are genuine issues

of material fact as to whether any overspeed events occurred,

whether Defendants’ service work caused the alleged overspeed

events, and whether Defendants failed to honor their warranty.

For the foregoing reasons,

IT IS ORDERED that Defendants’ Motion to Exclude and/or

Limit Plaintiff’s Expert Testimony, (Doc. 37), is DENIED.

IT IS FURTHER ORDERED that Defendants’ Motion for Summary

Judgment, (Doc. 33), is GRANTED IN PART AND DENIED IN PART. The

motion is GRANTED as to Plaintiff’s first claim for breach of the

implied warranty of merchantability and Plaintiff’s second claim

for negligent repairs. The motion for summary judgment is DENIED

as to Plaintiff’s third claim for breach of contract.

This the 27th day of December, 2022.

by Mian ben Me

United States District Jy¥idge

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