Southern Bakeries, Inc. v. Knipp

• Citation: 852 So.2d 712
• Parties: SOUTHERN BAKERIES, INC. v. Ray KNIPP and David Branyon.
• Decision Date: 13 December 2002
• Court: Supreme Court of Alabama

852 So.2d 712

SOUTHERN BAKERIES, INC. v. Ray KNIPP and David Branyon.

1010743.

Supreme Court of Alabama.

December 13, 2002.

C. Paul Cavender and Robert E. Battle of Burr & Forman, L.L.P., Birmingham; and Michael R. LaBarge and Bruce W. Lyon of LaBarge, Campbell & Lyon, L.L.C., Chicago, Illinois, for appellant.

Scott P. Hooker, Birmingham, for appellees.

SEE, Justice.

In February 1995, Sassib, an Italian manufacturer of ovens, hired Lotus Southwest to install a new oven at the facility of Tatum Bakers, Inc.,¹ in Birmingham. Ray Knipp was an employee of Lotus Southwest and was assigned the job of removing the old oven and installing the new one. In March 1995, Knipp spoke with Ray Downey, the president of Southern Bakeries, Inc. ("SBI"), about removing the old oven. Downey told Knipp that if Knipp could find someone to buy the old oven, he would pay Knipp a percentage of the sales price. Knipp claims that he asked Downey at that time whether an environmental study had been performed on the oven. Knipp also claims that he told Downey that in order for Knipp to be able to find a buyer, the study would have to show that the oven was toxin free.

In late 1995 or early 1996, Bob Wagnon, the head of maintenance at Tatum Bakers, told Knipp that the test results indicated that the oven was free of asbestos. In March 1996, as he was preparing to remove the oven, Knipp asked Downey if he could see the report that indicated the oven was free of asbestos. Knipp claims that Downey told him that he did not know what happened to the report. Knipp claims that, in May 1996, he again asked Downey for the report, and that Downey provided Knipp with a five-page document that stated that no asbestos had been detected in the oven.

Knipp states that about a week after he removed the oven, Downey asked him where the oven was located. Knipp told him that the oven had been sold to someone in Jamaica. Knipp claims that Downey told him that he was glad the oven was out of the country. Knipp claims that after he heard this, he became skeptical about Downey's representations that the oven was free of asbestos. In July 1996, Knipp had samples of the insulation tested. He had allegedly taken the samples from the insulation around the oven when he removed it. The tests indicated that the oven's insulation contained asbestos. Knipp claims that Downey admitted that the report he gave Knipp was inaccurate in its representation that the oven contained no asbestos.

On December 2, 1998, Knipp sued SBI. In the second amended complaint, David Branyon joined the action as a plaintiff. Branyon had helped Knipp remove the oven from the Tatum Bakers facility. Knipp and Branyon alleged (1) negligent or wanton failure to warn them that the oven contained asbestos; (2) fraudulent suppression; (3) negligent, reckless, or intentional representation; and (4) negligent or wanton failure to train employees, namely, Ray Downey. In each count, Knipp and Branyon sought compensation for "extreme emotional distress and mental anguish," on the ground that because of their exposure to asbestos in removing the oven from the Tatum Bakers facility they "are at a greater risk of developing lung cancer and other diseases of the lungs in the future." On August 14, 2001, SBI moved for a summary judgment.² SBI argued that Knipp and Branyon had failed to provide any evidence of a physical manifestation of injury from the alleged asbestos exposure and failed to provide any evidence indicating that it is more likely than not that they are going to contract an asbestos-related disease from the alleged exposure. In response to SBI's motion for a summary judgment, Knipp and Branyon submitted the deposition testimony of their expert, Dr. Allen Cooper; Dr. Cooper testified that, based on epidemiological studies, Ray Knipp has "a 200, 300 percent increased chance" of developing lung cancer and mesothelioma because of his exposure to asbestos at the Tatum Bakers facility.³ Knipp and Branyon further stated that Dr. Cooper offered the opinion that Branyon's risk of developing lung cancer and mesothelioma could be higher or lower than Knipp's risk, depending upon Branyon's individual susceptibility.

On December 17, 2001, the trial court entered a summary judgment for SBI as to "any claims by [Knipp and Branyon] that they are more likely than not to develop lung cancer almost three decades later." However, the trial court denied SBI's summary-judgment motion "to the extent that [Knipp and Branyon's] causes of action arise from the present damage." The trial court's order further recognizes that "[Knipp and Branyon's] primary concerns are the claimed emotional damage as a result of the fraudulent and wanton behavior of [SBI] and the fear that at some time in the future they will develop lung cancer or other health problems." The trial court stated that its order "involves a controlling question of law as to which there is a substantial ground for difference of opinion, that an immediate appeal from this amended order would materially advance the ultimate termination of the litigation and the appeal would avoid protracted and expensive litigation." This Court granted SBI permission to appeal. See Rule 5, Ala. R.App. P. SBI states that the controlling question of law is "[w]hether the trial court incorrectly held that [Knipp and Branyon] can recover any damages for their fear of developing cancer when (1) they have no physical manifestation of the injury; (2) their own expert witness has testified that they will not develop an asbestos-related disease for twenty-nine years after exposure, if ever; and (3) their own expert witness has testified that there is a more likely chance that [Knipp and Branyon] will not develop an asbestos-related cancer."⁴

SBI argues on appeal that Knipp and Branyon's claims should be dismissed (1) because they have failed to show that they have suffered any present injury, and (2) because their claims have not yet accrued under the Alabama statute of limitations for asbestos-related claims in that neither Knipp nor Branyon has suffered a clinically diagnosable injury.⁵ SBI argues that if Knipp and Branyon are allowed "to pursue this case to trial based on their `present' fear of developing an asbestos-related disease in the future, it would vastly change the current state of law in Alabama and open the door to a flood of litigation regarding `fear of injury' claims based solely on speculation and conjecture."

On appeal, Knipp and Branyon argue that their claims have accrued. They argue that their present injury is the mental anguish and emotional distress they have suffered as a result of SBI's conduct. They further state: "Once [Knipp and Branyon] discovered they had been lied to and exposed to asbestos they were injured in that they immediately suffered mental anguish and emotional distress."

The trial court denied SBI's motion for a summary judgment insofar as that motion was premised on the allegation of "fraudulent and wanton behavior," and Knipp and Branyon's brief to this Court argues that their alleged injuries arose from SBI's misrepresentation. In Boswell v. Liberty National Life Insurance Co., 643 So.2d 580, 581 (Ala.1994), this Court stated:

"To support a claim alleging suppression of a material fact, a plaintiff must show: (1) that the defendant suppressed a material fact, (2) that the defendant had a duty to communicate that material fact, either because of a confidential relationship between the parties, or because of the particular circumstances of the case, and (3) that the plaintiff suffered actual injury as a result of the suppression. § 6-5-102, Ala.Code 1975; Crowder [v. Memory Hill Gardens, Inc., 516 So.2d 602 (Ala.1987)]; Chapman v. Rivers Construction Co., 284 Ala. 633, 227 So.2d 403 (1969)."

(Emphasis added.) This Court has also stated:

"`... "[F]raud, without damage, or damage, without fraud, gives no cause of action; but, where these two do occur, there an action lieth." Einstein, Hirsch & Co. v. Marshall & Conley, 58 Ala. 153, 160 [1877]; Wall v. Graham, 192 Ala. 396, 399, 68 So. 298, 299 [1915].

"`... "Deceit and injury must concur.... Damage is of the essence of the action of deceit; an essential element to the right of action, and not merely a consequence flowing from it." Wall v. Graham, supra.'"

Pihakis v. Cottrell, 286 Ala. 579, 583, 243 So.2d 685, 688 (1971), quoted in Boswell v. Liberty Nat'l Life Ins. Co., 643 So.2d at 581

; Ford Motor Co. v. Rice, 726 So.2d 626, 627 (Ala.1998).⁶

Alabama has long required a manifest, present injury before a plaintiff may recover in tort.⁷Hinton v. Monsanto Co., 813 So.2d 827, 829 (Ala.2001); see also DeArman v. Liberty Nat'l Ins. Co., 786 So.2d 1090 (Ala.2000); Stringfellow v. State Farm Life Ins. Co., 743 So.2d 439 (Ala.1999); Williamson v. Indianapolis Life Ins. Co., 741 So.2d 1057 (Ala.1999); Ford Motor Co. v. Rice, supra; Pfizer, Inc. v. Farsian, 682 So.2d 405 (Ala.1996). The plaintiff in Hinton did not allege that he sustained a physical injury or an illness as a result of his exposure to polychlorinated biphenyls ("PCBs"); instead, he sought to recover the cost of medical monitoring he alleged was made necessary by his exposure to PCBs. 813 So.2d at 828. In Hinton, a plurality of this Court held that Alabama law provides no redress for a plaintiff who has suffered no present injury or illness. 813 So.2d at 831-32.

In Pfizer, Farsian sued Pfizer, Inc., the manufacturer of a heart-valve implant, alleging that by not revealing to Farsian certain risks and defects, Pfizer had fraudulently induced him to receive a Bjork-Shiley heart-valve implant. 682 So.2d at 406. The Court determined:

"Regardless of how Farsian pleads his claim, his claim is in substance a product liability/personal-injury claim—Farsian seeks damages because of the risk that his heart valve may one day fail....

"Under Alabama law, Farsian's fear that his valve could fail in the future is not, without

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