Columbia Engineering Intern., Ltd. v. Espey

• Decision Date: 18 February 1983
• Docket Number: INC,COLUMBIA-EASTER
• Citation: 429 So.2d 955
• Parties: COLUMBIA ENGINEERING INTERNATIONAL, LTD., MacMillan Bloedel, Inc., and MacMillan Bloedel Particle Board, Inc. v. Joe Ree ESPEY. COLUMBIA ENGINEERING INTERNATIONAL, LTD., MacMillan Bloedel, Inc., and MacMillan Bloedel Particle Board, Inc. v. Jerry D. LEE.v. Joe Ree ESPEY.v. Jerry D. LEE. 81-511, 81-511A, 81-519 and 81-519A.
• Court: Alabama Supreme Court

Page 955

429 So.2d 955

COLUMBIA ENGINEERING INTERNATIONAL, LTD., MacMillan Bloedel, Inc., and MacMillan Bloedel Particle Board, Inc. v. Joe Ree ESPEY.

COLUMBIA ENGINEERING INTERNATIONAL, LTD., MacMillan Bloedel, Inc., and MacMillan Bloedel Particle Board, Inc. v. Jerry D. LEE.

COLUMBIA-EASTERN, INC. v. Joe Ree ESPEY.

COLUMBIA-EASTERN, INC. v. Jerry D. LEE.

81-511, 81-511A, 81-519 and 81-519A.

Supreme Court of Alabama.

Feb. 18, 1983.

Rehearing Denied April 8, 1983.

Robert D. Norman and Robert L. Williams of Norman, Fitzpatrick & Wood, Birmingham, for appellant Columbia Engineering, Ltd.

Larry W. Harper of Porterfield, Scholl, Bainbridge, Mims & Harper, Birmingham, for appellants MacMillan Bloedell Inc. & MacMillan Bloedell Particle Board, Inc.

Bibb Allen of London, Yancey, Clark & Allen, Birmingham, for appellant Columbia-Eastern, Inc.

Lanny S. Vines and Lloyd W. Gathings of Emond & Vines, Birmingham, for appellees Joe Ree Espey and Jerry D. Lee.

JONES, Justice.

These consolidated appeals arose out of personal injuries sustained in 1974 by Joe Ree Espey and Jerry D. Lee, Plaintiffs/Appellees, when they fell from a scaffold while working for their employer, Mitchell Engineering Company (Mitchell), on the construction site of the MacMillan Bloedel particle board plant in Pine Hill, Alabama.

Plaintiffs originally sued MacMillan-Bloedel, Inc. (MacMillan), Louisville Ladder Company (manufacturer of the scaffold), six individual fellow employees, and twenty-three fictitious parties. In response to MacMillan's motion to dismiss, grounded on the assertion that it was not the premises owner, MacMillan-Bloedel Particle Board, Inc. (Particle Board), was substituted for MacMillan by amendment. Thereafter, Plaintiffs added several corporate defendants by substituting them for fictitious parties. Plaintiffs added Columbia-Eastern, Inc. (Eastern), in 1977; Columbia Engineering International, Ltd. (Columbia), in 1980; and brought back in MacMillan shortly before the beginning of trial in October, 1981.

During the trial, Defendants Louisville Ladder and the co-employees entered into a pro-tanto settlement for $300,000 in each case. The jury returned a $2,000,000 verdict against all remaining Defendants for each Plaintiff, which was subsequently reduced by the settlement. The court later held that the verdicts in each case were excessive, and Defendants' J.N.O.V./new trial motions were overruled contingent upon the filing of remittiturs. Plaintiffs filed remittiturs, reducing the unsatisfied judgments to $850,000 in each Plaintiff's case.

The dispositive issues can be grouped into two broad categories: 1) whether each respective Defendant was brought in improperly under Alabama's fictitious party practice, thereby causing the statute of limitations to run prior to their addition; and 2) the sufficiency, vel non, of the evidence to impose a legal duty upon each respective defendant, either by contractual obligations or voluntary undertakings, to make safety inspections, enforce safety regulations, or provide safe equipment for the benefit of the Plaintiffs. Because we hold that the trial court erred in denying each Defendants' motion for a directed verdict, we are compelled to reverse, and to render judgments for each Defendant.

I. THE FACTS

When MacMillan decided to add a particle board plant to an existing pulp and paper facility, Particle Board was formed to operate the new plant. Various employees of MacMillan were in charge of letting contracts for Particle Board. A proposal was given to Columbia for engineering and construction services. Subsequent to the proposal, but prior to acceptance, Columbia and Simons-Eastern Corporation formed Eastern to carry out the subsequently accepted proposal. A contract was drafted between Particle Board, as purchaser, and Mitchell, as contractor, for the construction of certain metal buildings on the Particle Board project.

Under this contract, Mitchell was to attach metal siding to the buildings its employees erected. Mitchell obtained a swinging scaffold from Louisville Ladder to complete its contractual duty. The scaffold was secured to the side of the building by screws installed by the scaffold workers. The Plaintiffs were severely and permanently injured when one of these screws broke loose, allowing the scaffold to swing away from the building, thereby causing them to fall.

The captions of the summonses (there were no captions to the complaints) contained eight named defendants and twenty-three fictitious parties, followed by this language: "Plaintiff avers that the identity of the fictitious party defendants is otherwise unknown to the plaintiff at this time or, if their names are known to the plaintiff at this time, their identity as proper party defendants is not known to the plaintiff at this time, but their true names will be substituted by amendment when the aforesaid lacking knowledge is ascertained."

Fictitious party No. 1 was described as follows:

"that entity or those entities who or which were responsible for the engineering work on the job on which plaintiff was working on the occasion made the basis of this suit;"

Fictitious party No. 3 was described as follows:

"that entity or those entities who or which had any possession or right of control with regard to the premises upon which plaintiff was working on the occasion made the basis of this suit;"

Eastern and Columbia were substituted for fictitious entity No. 1, while MacMillan was substituted for No. 3.

The last numbered paragraph of Plaintiffs' original complaint states:

"Plaintiff avers that the aforesaid wrongful conduct of each of the defendants combined and concurred, and plaintiff avers that as a direct result of this combined and concurring wrongful conduct of said defendants, plaintiff was injured and damaged as follows: ...."

II. THE ISSUES

A. Whether the claims against Columbia, Eastern, and MacMillan are barred by the statute of limitations.

1. Columbia.

Plaintiffs commenced the original suit against Columbia after the one-year statute of limitations for negligence actions had expired. Therefore, in order for Plaintiffs' claims against this defendant not to be time barred, the substitution of Columbia for fictitious party No. 1 must relate back under ARCP 9(h), pursuant to ARCP 15(c).

Several recent cases of the Court control the disposition of this issue: Threadgill v. Birmingham Board of Education, 407 So.2d 129 (Ala.1981); Walden v. Mineral Equipment Company, 406 So.2d 385 (Ala.1981); Minton v. Whisenant, 402 So.2d 971 (Ala.1981); and Fowlkes v. Liberty Mutual Insurance Company, 392 So.2d 803 (Ala.1980). These cases collectively stand for the proposition that a plaintiff, in order to invoke the relation back principles of Rules 9(h) and 15(c), must meet the following criteria: 1) Plaintiff must state a cause of action against the fictitious party in the body of the original complaint; and 2) plaintiff must be ignorant of the identity of the fictitious party, in the sense of having no knowledge at the time of the filing that the later named party was in fact the party intended to be sued.

Study of these cases shows that Rule 9(h) is not intended to give plaintiffs additional time beyond the statutorily prescribed period within which to formulate causes of action. Instead, the principal reason for the rule is to toll the statute of limitations in emergency cases where plaintiff knows he has been injured and has a cause of action against some person or entity, but has been unable to ascertain through due diligence the name of that responsible person or entity. Browning v. City of Gadsden, 359 So.2d 361 (Ala.1978).

A contrary rule would emasculate the statute of limitations, which sets the time period a plaintiff has in which to determine who has hurt him and how. Indeed, such an interpretation would amount to nothing less than the creation of a "discovery" exception to the statute of limitations. Additionally, the argument in favor of such an interpretation would support a tolling of the statute until discovery of the cause of action, rather than the classical tolling until discovery of injury which is generally contemplated by our discovery statutes.

Plaintiffs attempt to distinguish factually the Fowlkes line of cases, and contend that the requirements of those cases are met. In support of this distinction, Plaintiffs point out that in Fowlkes, the fictitious parties were described as "persons, partnerships or corporations, whose names, identities, and places of business are unknown to the plaintiff," whereas in the instant case, fictitious party No. 1 was described with more particularity, and the activity material to the Defendant's liability--the engineering work--was stated.

We find no merit in this distinction. The proper scope of comparison is whether there was a cause of action stated in the body of the complaint, not on the degree of particularity with which the fictitious defendant is described. Nowhere in the complaint is there a description of any wrongdoing on the part of Columbia or fictitious defendant No. 1.

Plaintiffs argue further that a cause of action has been stated against the fictitious parties because, unlike in Fowlkes, they specifically stated in the body of their original complaints that "the aforesaid wrongful conduct of each of the defendants combined and concurred, and plaintiff avers that as a direct result of this combined and concurring wrongful conduct of said defendants, plaintiffs were injured and damaged as follows." Plaintiffs incorrectly conclude that this language refers to all defendants, and thereby draws the description of fictitious party No. 1, which appeared in the summonses, into the complaints. Here, again, Plaintiffs fail to address the real question--whether there was any allegation of wrongful conduct by the fictitious party sufficient to constitute a cause of action. Even if the description of fictitious party No. 1 had...