                                   UNPUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                                     No. 17-1419


BRIAN COLBERT,

                   Plaintiff - Appellant,

      and

MICHAEL RUNNELS; DONNA RUNNELS,

                   Plaintiffs,

             v.


NORCOLD, INC.; THETFORD CORPORATION; THE DYSON-KISSNER-
MORAN CORPORATION,

                   Defendants - Appellees.


Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Liam O’Grady, District Judge. (1:16-cv-00713-LO-IDD)


Argued: March 21, 2018                                       Decided: April 13, 2018


Before NIEMEYER, TRAXLER, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Kassi Dee Patrick Marks, LEGER KETCHUM & COHOON, PLLC, The
Woodlands, Texas, for Appellant. Martin Andrew Conn, MORAN REEVES & CONN
PC, Richmond, Virginia, for Appellee. ON BRIEF: Bradley L. Leger, LEGER
KETCHUM & COHOON, PLLC, The Woodlands, Texas, for Appellant. Lisa M.
McMurdo, Laura May Hooe, MORAN REEVES & CONN PC, Richmond, Virginia for
Appellees.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

                                            I.

       On August 2, 2015, hydrogen gas leaking from a Norcold 1200 Series gas

absorption refrigerator ignited and caused a fire inside of a recreational vehicle. While

responding to the fire, Brian Colbert, a sheriff’s deputy and volunteer firefighter, was

injured by shrapnel from an explosion caused by the fire. Consequently, Colbert sued

Norcold, Thetford Corporation, and The Dyson-Kissner-Moran Corporation (collectively,

“Norcold”) alleging claims for breach of the implied warranty of merchantability; negligent

design defect and failure to warn; and punitive damages.

       The district court granted summary judgment to Norcold on all claims. In doing so,

the district court determined that Virginia’s Fireman’s Rule, which bars firefighters from

recovering from defendants whose negligence created the fire, applied to products liability

claims. See Va. Code Ann. § 8.01-226 (West 2015 & Supp. 2017). Further, the district

court examined Norcold’s conduct and concluded that the exception to the Fireman’s Rule

for willful and wanton conduct did not apply. As a result, the district court held that the

Fireman’s Rule operated to bar Colbert from recovering against Norcold. The district court

also concluded that Colbert’s breach of implied warranty of merchantability claim failed

because Colbert was not within the class of permissible plaintiffs as one “whom the

manufacturer or seller might reasonably have expected to use, consume, or be affected by

the goods.” Va. Code Ann. § 8.2-318 (West 2015).




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                                                 II.

       Colbert appeals the district court’s summary judgment order. We review the order

de novo and view the facts in the light most favorable to Colbert as the nonmoving party.

See Hickerson v. Yamaha Motor Corp., 882 F.3d 476, 481 (4th Cir. 2018). Having

carefully considered Colbert’s arguments, we affirm.

                                                III.

                                                 A.

       Colbert first argues that the district court erred by ruling on his breach of implied

warranty of merchantability and negligent failure to warn claims because Norcold did not

move for summary judgment on these claims. We conclude that the district court did not

err in this regard. Norcold plainly requested summary judgment on the breach of warranty

claim as to all plaintiffs, claiming they were “entitled to judgment as a matter of law on

Count I of [p]laintiffs’ [c]omplaint.” J.A. 141. * Additionally, Colbert pled his negligent

failure to warn claim as part of “Count II - Negligence,” id. at 32, and Norcold moved for

summary judgment on “Count II” “[p]ursuant to Virginia’s ‘Fireman’s Rule,’” id. at 143,

141. Accordingly, the district court did not err by ruling on these claims.

                                                 B.

       Colbert next contends that the Virginia Fireman’s Rule does not apply to products

liability claims. He argues in the alternative that Norcold’s conduct was willful and

wanton, which would warrant an exception to the Fireman’s Rule. See Goodwin v. Hare,


       *
           Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.

                                                 4
436 S.E.2d 605, 605–06 (Va. 1993). The Virginia Fireman’s Rule, a now codified common

law doctrine, bars firefighters and other public officials engaging in high risk activities

from recovering for negligence causing them injury sustained while performing their

duties. See Va. Code Ann. § 8.01-226 (West 2015 & Supp. 2017); Chesapeake & Ohio

Ry. Co. v. Crouch, 159 S.E.2d 650, 653–55 (Va. 1968). The rule does not apply, however,

if the defendant’s conduct was willful or wanton. See Goodwin, 436 S.E.2d at 606.

       After reviewing the record and the order of the district court, we agree with the

district court: the Fireman’s Rule applies to products liability claims, and Norcold’s

conduct was not willful or wanton. The reasoning behind the Fireman’s Rule applies with

equal force to products liability claims, and we see no reason the Virginia Supreme Court

would not apply it here. See Benefiel v. Walker, 422 S.E.2d 773, 775 (Va. 1992) (“It is the

fireman’s business to deal with . . . hazard[s] and hence . . . he cannot complain of

negligence in the creation of the very occasion for his engagement.” (quoting Flowers v.

Rock Creek Terrace Ltd. P’ship, 520 A.2d 361, 367 (Md. 1987))); Commonwealth v.

Millsaps, 352 S.E.2d 311, 315 (Va. 1987) (explaining that it is Virginia’s policy to impose

the burden of compensating firefighters for their injuries received in the line of duty “on

the public generally, through workers’ compensation and other benefits”). Moreover,

Norcold issued seven recalls, commissioned several studies, and instituted logging

protocols, all in an effort to reduce the risk of fires attributable to their refrigerators.

Indeed, that risk has now been reduced to negligible levels. Such responsive conduct is

not willful or wanton.



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         Thus, Colbert’s products liability claims are barred by the Fireman’s Rule.

Accordingly, we need not address whether Colbert is within the class of permissible

plaintiffs for a breach of implied warranty claim.

                                                C.

         Colbert also asserts that a recent statutory amendment creating a gross negligence

exception to the Fireman’s Rule applies retroactively. See Va. Code Ann. § 8.01-226 (West

2015 & Supp. 2017). We disagree. In creating a new exception, the amendment affects

“substantive” rights; that is, it deals with “creation of duties, rights, and obligations.”

Shiflet v. Eller, 319 S.E.2d 750, 754 (Va. 1984). Therefore, it cannot apply retroactively,

see id., and we need not address the applicability of the gross negligence exception to this

case.

         In light of the foregoing, we affirm substantially for the reasons stated by the district

court.

                                                                                    AFFIRMED




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