Sorah v. Jim Walter Resources, Inc.

916 So. 2d 594, 2005 Ala. LEXIS 61
CourtSupreme Court of Alabama
DecidedApril 29, 2005
Docket1040428
StatusPublished

This text of 916 So. 2d 594 (Sorah v. Jim Walter Resources, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sorah v. Jim Walter Resources, Inc., 916 So. 2d 594, 2005 Ala. LEXIS 61 (Ala. 2005).

Opinion

STUART, Justice.

Chemical Lime of Alabama, Inc., a defendant in 18 consolidated actions pending in the Tuscaloosa Circuit Court, petitions this Court for a writ of mandamus directing the judge of the Tuscaloosa Circuit Court to grant its motions for a summary judgment.2 Chemical Lime argues that the plaintiffs failed to exercise due diligence in not substituting Chemical Lime for a fictitiously named defendant in these cases until after the applicable two-year statutory periods of limitations, §§ 6-2-38 [596]*596and 6-5-410, Ala.Code 1975, had expired as to the plaintiffs’ claims asserting wrongful death and personal injury.

Facts

On September 23, 2001, two explosions occurred at mine # 5, a coal mine owned and operated by Jim Walter Resources, Inc., in Brookwood. Thirteen miners were killed and several miners were injured in the explosions. The injured miners and the administrators of the estates of the 13 deceased miners (hereinafter referred to collectively as “the plaintiffs”) sued Jim Walter Resources, Inc., and fictitiously named defendants, alleging breach of implied warranty of merchantability, failure to warn, negligence and wantonness, and claims based on the Alabama Extended Manufacturer’s Liability Doctrine.3

On April 2, 2004, the plaintiffs moved to amend the complaints to add Chemical Lime as an additional defendant. Chemical Lime manufactures limestone rock dust, which is applied to areas of a coal mine where coal dust can become suspended in the air, in order to neutralize the highly explosive characteristic of floating coal dust. Although Georgia Marble Company, another provider of limestone rock dust to mine # 5, was named as a defendant within the two-year limitations period, Chemical Lime was not named as a defendant until almost seven months after the expiration of the two-year limitations period.

Chemical Lime moved to dismiss certain of the claims against it on the ground that the statute of limitations for all claims asserted in the wrongful-death cases, with the exception of the claims of the surviving plaintiffs alleging breach of implied warranty of merchantability, clearly expired on September 23, 2003. The trial court denied Chemical Lime’s motion.

Chemical Lime petitions this Court for a writ of mandamus directing the trial court to enter a summary judgment for Chemical Lime on those claims as to which the statute of limitations is two years.

Standard of Review

“ ‘[M]andamus is a drastic and extraordinary writ that will be issued only when there is: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ Ex parte Horton, 711 So.2d 979, 983 (Ala.1998). ‘Subject to certain narrow exceptions ..., the denial of a motion to dismiss or a motion for a summary judgment is not reviewable by petition for writ of mandamus.’ Ex parte Liberty Nat’l Life Ins. Co., 825 So.2d 758, 761 (Ala.2002)(citing Ex parte Jackson, 780 So.2d 681, 684 (Ala.2000)).”

Ex parte Alloy Wheels Int’l, Ltd., 882 So.2d 819, 821-22 (Ala.2003). One of the “narrow exceptions” to the general rule that a ruling on a summary-judgment motion is not reviewable by a petition for a writ of mandamus is the denial of a summary-judgment motion when “the undisputed evidence shows that the plaintiff failed to act with due diligence in identifying the fictitiously named defendant as the [597]*597party the plaintiff intended to sue.” Ex parte Snow, 764 So.2d 531, 537 (Ala.1999). In reviewing the grant or denial of a summary-judgment motion,

“ “we must determine whether there was a genuine issue of material fact and, if not, whether the movant was entitled to a judgment as a matter of law. Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and resolve all reasonable doubts against the movant.’
“Brewer v. Woodall, 608 So.2d 370, 372 (Ala.1992).
“ ‘A summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The party moving for the summary judgment, here [Chemical Lime], has the burden of establishing a prima facie showing that there is no genuine issue of material fact. Berner v. Caldwell, 543 So.2d 686 (Ala.1989). If the moving party makes such a showing, then the burden shifts to the nonmoving party to rebut that showing by presenting substantial evidence creating a genuine issue of material fact. Substantial evidence is “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).’
“Young v. La Quinta Inns, Inc., 682 So.2d 402, 403 (Ala.1996).”

Ex parte Alloy Wheels, 882 So.2d at 822.

Discussion

Chemical Lime argues that it is entitled to a summary judgment on those claims asserted against it that are governed by a two-year statute of limitations because the plaintiffs did not amend their complaints to substitute Chemical Lime for a fictitiously named defendant until the two-year limitations period had expired. Chemical Lime contends that the plaintiffs have clearly not met their burden of invoking the relation-back principle of Rule 15(c)(4), Ala. R. Civ. P., applicable to fictitious-party practice under Rule 9(h), Ala. R. Civ. P. According to Chemical Lime, the plaintiffs have failed to act with the required due diligence in identifying Chemical Lime as one of the fictitiously named defendants in their complaints.

Rule 9(h), Ala. R. Civ. P., states:

“(h) Fictitious Parties. When a party is ignorant of the name of an opposing party and so alleges in the party’s pleading, the opposing party may be designated by any name, and when that party’s true name is discovered, the process and all pleadings and proceedings in the action may be amended by substituting the true name.”

Rule 15(c)(4) provides that “[a]n amendment of a pleading relates back to the date of the original pleading when ... relation back is permitted by principles applicable to fictitious party practice pursuant to Rule 9(h).” This Court has explained:

“Rule 9(h) and Rule 15(c), Ala. R. Civ. P., allow a plaintiff to avoid the bar of a statute of limitations by fictitiously naming defendants for which actual parties can later be substituted. Such a substitution is allowed to relate back to the date of the original complaint if the original complaint adequately described the fictitiously named defendant and stated a claim against such a defendant. In order for the substitution to relate back, the plaintiff must have been ignorant of the true identity of the defendant and must have used due diligence in at[598]*598tempting to discover it. Jones v. Resorcon, Inc., 604 So.2d 370 (Ala.1992).
“This Court discussed the due diligence standard in Davis v. Mims,

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Benefield v. AquaslideN'Dive Corp.
406 So. 2d 873 (Supreme Court of Alabama, 1981)
Marsh v. Wenzel
732 So. 2d 985 (Supreme Court of Alabama, 1998)
Ex Parte Snow
764 So. 2d 531 (Supreme Court of Alabama, 1999)
Phillips v. AmSouth Bank
833 So. 2d 29 (Supreme Court of Alabama, 2002)
Young v. La Quinta Inns, Inc.
682 So. 2d 402 (Supreme Court of Alabama, 1996)
Ex Parte Alloy Wheels Intern., Ltd.
882 So. 2d 819 (Supreme Court of Alabama, 2003)
Jones v. Resorcon, Inc.
604 So. 2d 370 (Supreme Court of Alabama, 1992)
Ex Parte Liberty Nat. Life Ins. Co.
825 So. 2d 758 (Supreme Court of Alabama, 2002)
Ex Parte Stover
663 So. 2d 948 (Supreme Court of Alabama, 1995)
Ex Parte Horton
711 So. 2d 979 (Supreme Court of Alabama, 1998)
Boles v. Blackstock
484 So. 2d 1077 (Supreme Court of Alabama, 1986)
Ex Parte Jackson
780 So. 2d 681 (Supreme Court of Alabama, 2000)
Fulmer v. Clark Equip. Co.
654 So. 2d 45 (Supreme Court of Alabama, 1995)
Pearson v. Brooks
883 So. 2d 185 (Supreme Court of Alabama, 2003)
Oliver v. Woodward
824 So. 2d 693 (Supreme Court of Alabama, 2001)
Berner v. Caldwell
543 So. 2d 686 (Supreme Court of Alabama, 1989)
Brewer v. Woodall
608 So. 2d 370 (Supreme Court of Alabama, 1992)
West v. Founders Life Assur. Co. of Florida
547 So. 2d 870 (Supreme Court of Alabama, 1989)
Ex Parte FMC Corp.
599 So. 2d 592 (Supreme Court of Alabama, 1992)
Davis v. Mims
510 So. 2d 227 (Supreme Court of Alabama, 1987)

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Bluebook (online)
916 So. 2d 594, 2005 Ala. LEXIS 61, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sorah-v-jim-walter-resources-inc-ala-2005.