Carr v. International Refining & Mfg. Co., 1070770.

CourtSupreme Court of Alabama
Writing for the CourtLyons
Citation13 So.3d 947
Docket Number1070770.
Decision Date16 January 2009
13 So.3d 947
Bell CARR, Jr., et al.
Supreme Court of Alabama.
January 16, 2009.

Clatus Junkin, H. Gregory Pearson, Charles E. Harrison, and Samuel W. Junkin of Junkin, Pearson, Harrison & Junkin, LLC, Tuscaloosa, for appellants.

Richard Eldon Davis of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, for appellant Castrol Industrial North America, Inc.

H.C. Ireland III of Porterfield, Harper, Mills & Motlow, P.A., Birmingham, for appellee Spartan Chemical.

Harlan I. Prater IV, William H. Morrow, and Craig N. Rosier of Lightfoot, Franklin & White, LLC, Birmingham, for appellees Certified Labs (a division of NCH Corporation), Chemsearch (a division of NCH Corporation), GE Betz, Inc., Henkel Corporation, Locite Corporation (now known as Henkel Corporation), Parker Amchem (a former operating group of Henkel Corporation), and Tremco, Inc.

[13 So.3d 948]

C. Paul Cavender of Burr & Forman, LLP, Birmingham, for appellee Precision Industrial Automation, Inc.

John W. Clark, Jr., and Cynthia N. Williams of Clark, Hair & Smith, P.C., Birmingham, for appellee A.M. Castle & Company, Inc.

John C.S. Pierce of Butler Pappas Weihmuller Katz Craig, LLP, Mobile, for appellee JohnsonDiversy, Inc., being sued as S.C. Johnson & Son, Inc.

Douglas L. McCoy and Lisa Darnley Cooper of Hand Arendall, L.L.C., Mobile, for appellee Bliss Clearing Niagra, Inc.

Joe E. Basenberg and James S. Witcher III of Hand Arendall, L.L.C., Mobile for appellees Tennant Company, Reiff & Nestor Company, and Premier Cutting Tools f/k/a Pine Bluff Cutting Tools.

Connie Ray Stockham and James M. Smith of Stockham, Carroll & Smith, P.C., Birmingham, for appellee IRMCO.

James E. Fleenor, Jr., of Battle Fleenor Green Winn & Clemmer, LLP, Birmingham, for appellee Buckman Laboratories, Inc.

John F. Whitaker of Whitaker, Mudd, Simms, Luke & Wells, LLC, Birmingham, for appellee Joamco Chemical Products, Inc.

James H. McLemore and Robert F. Northcutt of Capell & Howard, P.C., Montgomery, for appellee Contacts Metals & Welding, Inc.

Sidney J. Hardy of McCranie, Sistrunk, Anzelmo, Hardy, Maxwell & McDaniel, Covington, Louisiana, for appellee NSU Corp.

David B. Hall, Lawrence B. Clark, and Sara M. Turner of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Birmingham, for appellees The Minster Machine Company and AK Steel Corporation.

Leslie A. Caldwell of Lusk, Caldwell & Dean, P.C., Birmingham, for appellee Amcol Corp.

G. Thomas Yearout of Yearout, Spina & Lavelle, P.C., Birmingham, for appellee Research Solvents and Chemicals, Inc.

Richard E. Smith and Deborah Alley Smith of Christian & Small, LLP, Birmingham, for appellee Invitrogen Corporation.

H. Thomas Wells, Jr., Katie E. Loggins, and E. Bryan Nichols of Maynard, Cooper & Gale, P.C., Birmingham, for appellee Allegheny Ludlum Corporation.

Sydney F. Frazier, Jr., and Michael E. Turner of Cabaniss, Johnston Gardner, Dumas & O'Neal, LLP, Birmingham, for appellee Nalco Company.

Grey Redditt, Jr., and Timothy A. Clark of Vickers, Riis, Murray & Curran, Mobile, for appellee Delta Foremost Chemicals, Inc.

William T. Mills II of Porterfield, Harper, Mills & Motlow, P.A., Birmingham, for appellee Regal-Beloit Corporation.

Apsilah Owens Millsaps of Owens & Millsaps, LLP, Tuscaloosa, for appellees Barksdale Warrior Paper Co., Inc., and Nonferrous Products, Inc.

Lewis W. Page, Jr., of Page Law Firm, LLC, Birmingham, for appellee National Standard Company.

J. Alex Wyatt and David A. Lee of Parsons, Lee & Juliano, P.C., Birmingham, for appellee Sunnen Products, Inc.

Matthew W. Robinett of Norman, Wood, Kendrick & Turner, Birmingham, for appellee Inco Alloys International, Inc.

Clifotn Wayne Jefferis of Forman, Perry, Watkins, Krutz & Tardy, LLP, Jackson, Mississippi, for appellee Chemco Manufacturing Company, Inc.

[13 So.3d 949]

Timothy W. Knight of Kee & Selby, L.L.P., for appellees Lincoln Electric Company and L-Tec.

Charles Fleming, Jr., of Huie, Fernambucq & Stewart, LLP, Birmingham, for appellee D.A. Stuart Company.

Stanley A. Cash of Huie, Fernambucq & Stewart, LLP, Birmingham, for appellee Rochester-Midland.

Frank E. Lankford of Huie, Fernambucq & Stewart, LLP, Birmingham for appellees Hollingsworth & Vose Company and Houghton International, Inc.

Michael C. Quillen of Walston, Wells & Birchall, LLP, Birmingham, for appellees American Metal Fibers, Inc., Lancaster Fibers, Inc., and Alro Steel Corporation.

Chilton Davis Varner, Stephen B. Devereaux, and Bradley W. Pratt of King & Spalding, LLP, Atlanta, Georgia, for amicus curiae Product Liability Advisory Council, Inc., in support of the appellees.

On Application for Rehearing

LYONS, Justice.

This Court's opinion of November 14, 2008, is withdrawn, and the following is substituted therefor.

The appellants in this action ("the former employees") are several hundred former employees of Arvin Industries d/b/a Arvin-Meritor, Inc. ("Arvin"). The former employees sued Arvin and several of their co-employees, alleging that they had suffered injuries as a result of exposure to toxic chemicals while employed by Arvin. Through an amended complaint, the former employees added 64 other named defendants ("the new defendants"), who they alleged manufactured or sold Arvin the chemicals and equipment that injured the former employees. The former employees appeal from the Fayette Circuit Court's dismissal of their claims against the new defendants. We reverse and remand.

This is the second time this case has come before this Court. See Ex parte International Refining & Mfg. Co., 972 So.2d 784 (Ala.2007) ("International Refining"). In International Refining, we described the facts and procedural background as follows:

"On November 13, 2003, Bell Carr, Jr., and approximately 320 other former employees at a manufacturing plant operated by Arvin Industries d/b/a Arvin-Meritor, Inc. (hereinafter `the [former employees]'), sued Arvin-Meritor and six individual defendants, also former employees at the plant, where automotive mufflers were manufactured. The complaint alleged that up until the closing of the plant in May 2002, the [former employees] suffered harm from `exposure to toxic and dangerous chemicals' that were flushed from the manufacturing machines and eventually circulated into a large pit, which the [former employees] were responsible for draining and cleaning. In addition to these seven defendants, the original complaint fictitiously named 40 other defendants in the caption and in the body of the complaint.

"On May 6, 2005, approximately three years after their last exposure to the chemicals, the [former employees] filed their first amended complaint, seeking to add 64 new named defendants, including the petitioners, in place of the fictitiously named defendants (hereinafter `the new defendants'), 113 new plaintiffs, as well as additional fictitiously named defendants. The [first] amended complaint reasserted the five claims asserted in the original complaint, but only against the seven original defendants. The first amended complaint also alleged claims of negligence, wantonness, liability under the Alabama Extended Manufacturer's Liability Doctrine, civil

13 So.3d 950

conspiracy, and the tort of outrage, but only against the new defendants."

972 So.2d at 787.

Regarding wantonness, the former employees alleged in count 6 of the first amended complaint that the new defendants had "wantonly engineered, designed, developed, configured, manufactured, assembled, distributed, and/or sold the chemicals" and other products that the former employees were exposed to through their work at Arvin. The former employees also alleged in count 13 that 5 of the new defendants had "wantonly engineered, designed, ... manufactured, ... sold, inspected or consulted regarding the design, engineering, manufacturing, production, distribution and/or warnings associated with" the equipment used in Arvin's manufacturing process.

"On June 14, 2005, the new defendants removed the case to the United States District Court for the Northern District of Alabama pursuant to the Class Action Fairness Act (`CAFA'), 28 U.S.C. § 1453. The district court remanded the five original claims against the seven original defendants to the Fayette Circuit Court because they did not fall within the CAFA. The district court also determined that the claims in the amended complaint against the new defendants did not relate back under Alabama law and did not constitute what it referred to as an `interstate case of national importance.' Accordingly, the new claims asserted and the parties added in the amended complaint fell within the exception to federal jurisdiction under CAFA in 28 U.S.C. § 1332(d)(11)(B)(ii)(I), and the district court also remanded the remaining claims to the Fayette Circuit Court.

"Upon remand, the new defendants filed motions to dismiss, or, in the alternative, for a summary judgment, on the ground that the claims asserted against them in the amended complaint did not relate back to the date of the filing of the original complaint and are thus barred by the two-year statute of limitations. See § 6-2-38(l), Ala.Code 1975. The trial court conducted a hearing and denied the motions. The new defendants sought a certification to file a permissive appeal under Rule 5, Ala. R.App. P., but the trial court denied the request for the certification. The [new defendants] then filed [a] petition for a writ of mandamus."

International Refining, 972 So.2d at 787-88 (footnote omitted).

This Court granted the new defendants' petition and issued the writ of mandamus. We concluded in International Refining that the claims the former employees stated against the new defendants in the first amended complaint did not relate back to the claims they stated against the fictitiously named defendants identified in their original complaint. 972 So.2d at 791. Because the first amended...

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