Bowers v. Wal-Mart Stores, Inc.

• Decision Date: 14 December 2001
• Parties: Ann BOWERS and Tony Bowers v. WAL-MART STORES, INC.
• Court: Alabama Supreme Court

827 So.2d 63

Ann BOWERS and Tony Bowers v. WAL-MART STORES, INC.

1000092.

Supreme Court of Alabama.

December 14, 2001.

Rehearing Denied February 22, 2002.

M. Dale Marsh and M. Chad Tindol of Cassady, Fuller & Marsh, L.L.P., Enterprise, for appellants.

Charles F. Carr, Craig W. Goolsby, and J. Alex Wyatt of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Daphne, for appellee.

SEE, Justice.

Tony Bowers and Ann Bowers, husband and wife, sued Wal-Mart Stores, Inc. ("Wal-Mart"), General Motors, Inc. ("GM"), and various other parties, asserting claims of negligence, wantonness, breach of warranty, and negligent training and supervision. They sought compensatory and punitive damages for mental anguish and for damage to their property caused by a fire that started in Mrs. Bowers's automobile and spread to the Bowerses' house, destroying both the car and the house. Shortly before the fire, Mrs. Bowers had had the oil changed in her car at a Wal-Mart store.

The defendants filed summary-judgment motions. The trial court denied Wal-Mart's summary-judgment motion as to Ann Bowers's claim for breach of warranty, Ann and Tony Bowers's claims for mental anguish and their claims for property damage, but granted the motions as to all the other claims and all other defendants. The case proceeded to trial with Wal-Mart as the only defendant. The jury found for the Bowerses on their remaining claims against Wal-Mart. This Court reversed the judgment entered on that verdict and remanded the case for a new trial because the trial court had improperly allowed the jury to consider Mr. Bowers's request for damages for mental anguish. Wal-Mart Stores, Inc. v. Bowers, 752 So.2d 1201 (Ala.1999). Wal-Mart prevailed on all counts in the second trial. The Bowerses now appeal, asserting several errors they argue the trial court made. We affirm.

I.

The Bowerses argue that, in the second trial, the court improperly allowed Wal-Mart to argue that a defect in the automobile it says was caused by an act or omission of GM had caused the fire. The Bowerses argue that because the trial court had originally entered a summary judgment for GM and made that summary judgment final, pursuant to Rule 54(b), Ala. R. Civ. P., Wal-Mart should not have been allowed to present evidence of possible defects in the car it says were attributable to GM. Wal-Mart counters that it had the right to vigorously cross-examine the Bowerses' experts about how they had reached their conclusions as to the cause of the fire. Wal-Mart argues that vigorous cross-examination required that it present possible theories of how the fire could have started, other than through its negligence, and that it then ask the experts to explain why they did not consider those theories.¹ Whether collateral estoppel² precludes a defendant from arguing wrongdoing by a codefendant in whose favor a summary judgment has been entered appears to be a question of first impression in Alabama. However, a case on point is Golman v. Tesoro Drilling Corporation, 700 F.2d 249, 253 (5th Cir. 1983). In that case, the trial court granted one defendant's motion for a summary judgment and dismissed that party, and the remaining defendant asserted a defense based on the dismissed party's negligence. The United States Court of Appeals for the Fifth Circuit stated: "It would be inequitable, if not illogical, to hold that [the plaintiff's] inability to produce evidence should redound to his benefit by estopping [the remaining defendant] from relying upon a legally valid defense." Any other result misunderstands estoppel; a party is entitled to its day in court. Having its day in court means, for Wal-Mart, no less than the opportunity to argue its case.

It is true that in Tesoro Drilling Corporation no final order had been entered; it is also true that "[a]n order granting partial summary judgment is interlocutory; it has no res judicata or collateral estoppel effect." Tesoro Drilling Corp., 700 F.2d at 253, citing Travelers Indem. Co. v. Erickson's, Inc., 396 F.2d 134, 136 (5th Cir.1968). Here, the summary judgment for GM was made final; however, the Fifth Circuit's reasoning in Tesoro Drilling Corporation is still helpful. The Fifth Circuit did note a case stating that a partial summary judgment was a final judgment on the merits for purposes of estoppel or res judicata, but it then considered the effect such a final judgment would have on the remaining defendant. Tesoro Drilling Corporation, 700 F.2d at 253, citing In re Falstaff Brewing Co. Antitrust Litigation, 441 F.Supp. 62, 66 (E.D.Mo.1977). "In this instance the trial court's order merely established that [the plaintiff] had not met his burden of producing evidence sufficient to place in issue material facts relative to [the dismissed defendant's] fault. It was not intended to foreclose [the remaining defendant's] right to propound an argument...." 700 F.2d at 253. Principles of res judicata should not permit a plaintiffs failure as to one defendant to benefit it as to a remaining defendant. To hold otherwise would encourage less than full and vigorous prosecution of claims. The Bowerses also argue that the summary judgment entered for GM is the law of the case, because the trial court made the summary judgment final, pursuant to Rule 54(b), Ala. R.App. P. "`Under the doctrine of the "law of the case," whatever is once established between the same parties in the same case continues to be the law of that case, whether or not correct on general principles, so long as the facts on which the decision was predicated continue to be the facts of the case.'" Southern United Fire Ins. Co. v. Purma, 792 So.2d 1092, 1094 (Ala.2001), quoting Blumberg v. Touche Ross & Co., 514 So.2d 922, 924 (Ala.1987). In this case, the Bowerses' failure to present substantial evidence against GM at the summary-judgment stage resulted in a summary judgment for GM. That determination of rights between the Bowerses and GM is not "law of the case" regarding the Bowerses' claims against Wal-Mart, a different party.

Wal-Mart had the right to defend itself by using all arguments legally at its disposal. One such argument was that the experts hired by the Bowerses rushed to the conclusion that something done during the oil change at Wal-Mart caused the fire and that they did not consider other possible causes. To elicit evidence to support this "rush-to-judgment" theory, Wal-Mart cross-examined the Bowerses' experts about the methods they used to reach, and what factors they considered in reaching, their conclusions. Wal-Mart also asked the experts whether they had considered all possible causes of the fire by checking for recalls and technical service bulletins for the type of car involved. Wal-Mart elicited responses that indicated that the Bowerses' experts had not looked for a cause of the fire other than the oil change. Because questioning the validity of the conclusions of a plaintiffs experts is an integral part of the defense, the trial court did not abuse its discretion in allowing Wal-Mart to conduct its defense.

II.

The Bowerses next contend that the trial court erroneously charged the jury on the elements of Ann Bowers's mental-anguish claim based on a breach of the warranty Wal-Mart provided when it serviced Mrs. Bowers's car. The trial court's mental-anguish jury instruction reads as follows:

"This Court charges you that before the Plaintiff, Ann Bowers, may recover damages for mental anguish, she must satisfy you that she was in a zone of danger, resulting from any negligence or breach of warranty on the part of the Defendant, Wal-Mart Stores, Inc., if any you find.

"This Court charges you that the term `zone of danger' means a zone in which the Plaintiff, Ann Bowers, felt that she was in immediate risk of physical harm. The Court charges you that should you find that the Plaintiff, Ann Bowers, was in the zone of danger at the time of the fire made the basis of this suit, before the Plaintiff, Ann Bowers, could recover damages for mental anguish, such mental anguish must be shown to be proximately caused by the fear of immediate risk of physical harm."

An award of damages for mental anguish generally is not allowed in breach-of-contract actions in Alabama. Ruiz de Molina v. Merritt & Furman Ins. Agency, 207 F.3d 1351 (11th Cir.2000), citing Vincent v. Blue Cross-Blue Shield, Inc., 373 So.2d 1054, 1056 (Ala.1979).

"The ground on which the right to recover such damages [for mental anguish] is denied, is that they are too remote, were not within the contemplation of the parties, and that the breach of the contract is not such as will naturally cause mental anguish. `Yet where the contractual duty or obligation is so coupled with matters of mental concern or solicitude, or with the feelings of the party to whom the duty is owed, that a breach of that duty will necessarily or reasonably result in mental anguish or suffering, it is just that damages therefor be taken into consideration and awarded.'"

F. Becker Asphaltum Roofing Co. v. Murphy, 224 Ala. 655, 656, 141 So. 630, 631 (1932) (citations omitted). Exceptions to the general rule on the basis noted above have been made in the areas of contracts to construct or repair, or to provide utilities to, a house where the breach impacted the habitability of the house. See Orkin Exterminating Co. v. Donavan, 519 So.2d 1330 (Ala.1988)

; Alabama Power Co. v. Harmon, 483 So.2d 386 (Ala.1986); B & M Homes, Inc. v. Hogan, 376 So.2d 667 (Ala. 1979). Exceptions have also been made for contracts of carriage, see Nashville C.St.L. Ry. v. Campbell, 212 Ala. 27, 101 So. 615 (1924); for breach of a contract to deliver a baby, when the baby was stillborn, see Taylor v. Baptist Med. Ctr., Inc., 400 So.2d 369 (Ala.1981); and for breach of warranty in the sale of a "lemon," a newly manufactured car that frequently broke down at intersections, see Volkswagen of America, Inc. v. Dillard, 579 So.2d 1301, 1304 (Ala.1991) ("`These...