Crabtree v. BASF Bldg. Sys., LLC (Ex parte BASF Constr. Chems., LLC)

• Decision Date: 30 December 2013
• Docket Number: 1101204.
• Citation: 153 So.3d 793
• Parties: Ex parte BASF CONSTRUCTION CHEMICALS, LLC (In re Jeannie West Crabtree and Edward Wayne Crabtree v. BASF Building Systems, LLC).
• Court: Alabama Supreme Court

153 So.3d 793

Ex parte BASF CONSTRUCTION CHEMICALS, LLC

(In re Jeannie West Crabtree and Edward Wayne Crabtree

v.BASF Building Systems, LLC).

1101204.

Supreme Court of Alabama.

Dec. 30, 2013.

James B. Newman of Helmsing, Leach, Herlong, Newman & Rouse, P.C., Mobile; and D. Andy Stivender, Auburn, for petitioner.

John R. Spencer, Mobile; and C.S. Chiepalich, Mobile, for respondents.

Opinion

MURDOCK, Justice.

We granted the petition for a writ of certiorari of BASF Construction Chemicals, LLC (“BASF”),¹ in this action filed by Edward Wayne Crabtree and Jeannie West Crabtree to consider several issues raised by BASF regarding the decision of the Court of Civil Appeals to reverse the trial court's summary judgment in favor of BASF as to the Crabtrees' claims against BASF. We reverse the judgment of the Court of Civil Appeals.

I. Facts and Procedural History

Edward Crabtree slipped and fell on the top floor of the physician's parking deck of a medical center owned by Mobile Infirmary Associates d/b/a Mobile Infirmary Medical Center (“Mobile Infirmary”), and he suffered injuries as a result. The Crabtrees commenced this action, naming as defendants in the lawsuit Mobile Infirmary and fictitiously named parties “B,” “C,” “D,” “E,” and “F.” Eventually, BASF was one of the parties the Crabtrees substituted for a fictitiously named defendant in an amended complaint. The Crabtrees contend that BASF is liable for Edward Crabtree's fall because a polyurethane product called Sonoguard, which was manufactured by BASF's predecessor ChemRex, Inc. (“ChemRex”), which BASF acquired after the events underlying the Crabtrees' action, was improperly installed on the floor of the parking deck where Edward Crabtree fell and sustained his injuries.²

According to the manufacturer's instructions, Sonoguard requires proper installation in order to perform as intended. Installation of the product first requires preparation of the surface area to which it will be applied. Following preparation, a “base coat” layer is applied to provide the waterproofing effect. After the base-coat layer has cured, a second “topcoat” layer is applied in varying amounts based on the amount of vehicular traffic to which the surface will be subjected. While the topcoat layer is wet, aggregate (i.e., silica sand) is broadcast over the material to provide slip resistance. To facilitate a proper application of these three layers, the manufacturer's instructions recommend that the installer first perform a “mock-up,” i.e., an installation of the product over a smaller area to “allow for evaluation of slip resistance and appearance of the deck coating system.”

BASF employees confirmed in their deposition testimony that the proper application of Sonoguard requires a sufficient amount of aggregate. BASF Senior Technical Product Specialist Allan Mosloski testified that Sonoguard can be slippery “if you don't get the right amount of aggregate in [it]” and that that is a “relatively common thing” to occur in its installation. BASF Mississippi/Louisiana Territory Manager Roger Sosa testified that Sonoguard is “absolutely” slippery if it lacks aggregate. BASF Alabama Territory Manager David Cook also testified that if the topcoat is too thick it will cover the aggregate and render the surface slippery.

The Mobile Infirmary campus has two public parking decks. The first is a two-story parking deck located immediately in front of the hospital (“Deck I”). The second is a four-story parking deck adjacent to the Physician's Office Building (“Deck II”). Edward Crabtree slipped and fell on the top floor of Deck II. The Crabtrees contend, however, that events relating to the renovation of Deck I explain in part the reason that BASF should be held responsible for the installation of its product on the top floor of Deck II.

In 2002, Mobile Infirmary engaged the services of J.F. Pate and Associates Contractors, Inc. (“J.F. Pate”), as a general contractor to renovate Deck I. J.F. Pate, in turn, engaged the services of CHP Industrial and Marine, Inc. (“CHP”), as a subcontractor to waterproof the top floor of Deck I and a portion of the ramp leading up to the top floor. CHP purchased the Sonoguard applied on Deck I from a Mississippi supplier. Within a few weeks of CHP's installation of the product, Mobile Infirmary began receiving complaints that the Sonoguard was wearing out. Roger Sosa, at that time ChemRex's Mississippi/Louisiana Territory Manager, was notified of the problems. In an April 28, 2002, letter to his superior, Sosa related what he believed to be the causes of the problems based upon what he had been told, including that “[t]he contractor must have shot blasted ^{[ 3 ]} the deck poorly in spots because he just ordered more base coat to cover the exposed aggregate that he blasted” and “[t]he contractor may not be applying enough sand in spots.”

Between September and November 2002, Sosa visited Deck I to evaluate the problems in person, and he provided CHP with written instructions for how to remediate those problems. CHP performed a remediation, but several months later the product was wearing out again. On July 31, 2003, ChemRex Senior Technical Services Representative Thomas Karlson visited Deck I to evaluate the problems. CHP owner Clarence Poole, J.F. Pate executive Mit Kopf, and Sosa also were present during Karlson's visit. Based on his observations, Karlson wrote Poole a detailed letter explaining the flaws he observed in the installation of Sonoguard and providing his recommendations for remediating those problems. Karlson faulted “improper concrete surface preparation” as the primary reason the Sonoguard did not perform as intended. Karlson recommended “shot-blasting” the areas of Deck I that were flawed in order to remove Sonoguard and to apply a different ChemRex product, Conipur II, to those areas.

CHP performed a second remediation of Deck I in October 2003. According to Sosa, Karlson and Sosa were present for the application of Conipur II so that they could “help [CHP] in any way we could.” Sosa testified to the difficulties that occurred with the second remediation.

“Unfortunately, Mr. Poole's labor force [was] comprised of all temporary employees, which is fine [under certain conditions]. But when they started putting the material down we—me and Tom just started—red flags started going up, just through experience.

“They were not mixing it long enough. They weren't getting it down on the floor long enough. They were keeping the material in the bucket too long. The material, when it starts heating on to itself, it just starts curing out. So probably shouldn't have done it, but we did. We did not want to keep continuing with the problems on deck number one so Tom Karlson and myself took off our shoes, threw on some shorts and we jumped out there with his guys, and I would say that me and Tom probably did about 80% of that deck by ourselves.”

In early 2003, Mobile Infirmary engaged the services of J.F. Pate to renovate Deck II. To waterproof the top floor of Deck II and the ramp leading up to the top floor, J.F. Pate once again engaged CHP. J.F. Pate's Kopf testified that a Mobile Infirmary vice president told him that a condition of allowing CHP to do the job was that he wanted a representative of the manufacturer of the waterproofing product present “to inspect the project, inspect the preparation before the coating went down, and inspect it after the coating was put on.” Kopf stated that he related this request to Poole and that he recalled Poole's communicating with the manufacturer about it.

On April 15, 2003, Sosa wrote a letter to Poole that provided, in pertinent part:

“You recently informed me that you have been given the okay to proceed with the Physicians Parking Garage [Deck II]. The scope of the work is to remediate areas of ponding water and to apply a traffic grade urethane system over the existing deck. Due to complications that occurred on the previous job[, i.e., Deck I], we have both agreed that representatives from Chemrex, Inc. would be present during various times of the project to inspect the preparatory work, application of the products and to provide any technical assistance that may be required. In the beginning I recommend an inspection at least once a week to insure that all parties involved are in agreement with the manufacturer's instructions. If it [is] necessary to be on the project more often until all parties are comfortable, then we will be happy to perform that function. I am looking forward to a successful project. Please contact me when you are ready to commence with you[r] preparatory work. If you have any questions or comments, please feel free to contact me at your earliest convenience.”

Sosa testified that he intended to have David Cook, at that time ChemRex's Alabama Territory Manager, make site visits to Deck II in order to help CHP with any questions their employees might have concerning the application of Sonoguard. Sosa did not tell Cook specifically about the April 15, 2003, letter, but Cook testified that he and Sosa did have a conversation about Cook's going to the project site during the course of the project. Cook stated that he visited the site four or five times throughout the project.

Both Cook and Sosa denied that the purpose of the job-site visits was to ensure that the Sonoguard was installed correctly. Cook stated that “[m]y capacity on this job was to provide any technical service, answer any questions that Clarence [Poole] had during my visits. I was not a quality control or a quality assurance type person.” Sosa testified that he considered an “inspection” and a “job-site visit” to be synonymous, and he stated:

“At a job site visit we make ourselves available. The contractor has any questions, if he needs me to take a look at something in particular, if I can answer it I will. If I need to get a technical representative involved I will.

“So it's basically going to the job and making sure everything is, you know, on the up

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