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Jack H. Winslow Farms7/19/2005
fect would "arguably" be barred, but that fraudulent acts relating to providing counsel are hardly those that arise from the product and thus would not be barred by the statute), disc. review denied, 323 N.C. 363, 373 S.E.2d 541 (1988); Davidson v. Volkswagenwerk, A.G., 78 N.C. App. 193, 194-95, 336 S.E.2d 714, 715-16 (holding that plaintiff's "tortious concealment" of a defect claim is barred by the plain language of the statute), cert. denied, 316 N.C. 375, 342 S.E.2d 892 (1986). In Forsyth Memorial Hospital v. Armstrong World Industries, 336 N.C. 438, 444, 444 S.E.2d 423, 427 (1994), our Supreme Court did not apply section 1-50(a)(6) to the case before it but instead applied section 1-50(5), now section 1-50(a)(5). Nonetheless, the Court stated: "the difference in the two statutesof repose . . . [is that] he real property improvement statute of repose expressly exempts all claims sounding in fraud or willful and wanton misconduct, whereas the products liability statute of repose contains no such exemption." Id.
Thus, despite having no case precisely on point, we find no ambiguity in the plain language of N.C. Gen. Stat. § 1-50(a)(6) and its application to claims of fraud arising from or in relation to an allegedly defective product. We too are persuaded by the stark contrast of section 1-50(a)(5), discussing the statute of repose for improvements to real property, and N.C. Gen. Stat. § 1-50(a)(6), dealing with all actions for damages to property "based upon or arising out of any alleged defect or any failure in relation to a product." The precision with which the General Assembly defined the scope of the real property statute of repose, see N.C. Gen. Stat. § 1-50(a)(5) (2003), is indicative of their intent to draft the products liability statute of repose broadly. Fraud is specifically noted as an exception to assertion of the statute in real property cases, N.C. Gen. Stat. § 1-50(a)(5)e. (2003), whereas there are no exceptions noted in regards to products liability.
Accordingly, plaintiff's action for fraud is controlled by N.C. Gen. Stat. § 1-50(a)(6). Plaintiff's claim for fraud arises from the alleged failure of a manufactured silo to perform as advertised or indicated by the silo's promotional literature. The silos were purchased in 1976 and 1977. Absent evidence of extended warranties, contracts, or otherwise upon which to base an action,plaintiff had six years from the date of purchase to bring claims against the manufacturer for defects or failures arising from the product. He did not do so, and his claims are now barred. Summary judgment in favor of defendants on this issue is dispositive.
Affirmed.
Judges CALABRIA and GEER concur.
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