# FREDEKING v. TRIAD AVIATION, INC.

> District Court, M.D. North Carolina · December 27, 2022

URL: https://www.frixlaw.com/law-library/cases/10653665

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** December 27, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10653665. Public record. Not legal advice.