Ex parte Alabama Dept. of Transp.

• Decision Date: 25 February 2000
• Citation: 764 So.2d 1263
• Parties: Ex parte ALABAMA DEPARTMENT OF TRANSPORTATION et al. (Re Blue Ridge Sand and Gravel, Inc., et al. v. Alabama Department of Transportation et al.)
• Court: Alabama Supreme Court

764 So.2d 1263

Ex parte ALABAMA DEPARTMENT OF TRANSPORTATION et al.

(Re Blue Ridge Sand and Gravel, Inc., et al. v. Alabama Department of Transportation et al.)

1981916.

Supreme Court of Alabama.

February 25, 2000.

Jim R. Ippolito, Jr., chief counsel; and Stacey S. Houston, asst. counsel, Alabama Department of Transportation.

J. Flint Liddon of Johnson, Liddon, Bear & Tuggle, Birmingham, for respondents.

MADDOX, Justice.

The question presented by this petition for the writ of mandamus is whether the defendants in a lawsuit pending in the Montgomery Circuit Court—the Alabama Department of Transportation ("ALDOT") and several of its officers and employees— are immune from liability under the provisions of Art. I, § 14, of the Constitution of Alabama 1901.

In the petition, ALDOT and its officers and employees ask us to direct the trial court to grant their collective motions for summary judgment based on their claims of sovereign immunity. After considering the briefs of the parties, we grant the writ of mandamus.

I.

This lawsuit, filed by Blue Ridge Sand and Gravel, Inc., and its owner, Bob Estes (hereinafter both are usually referred to as "Blue Ridge"), arose out of ALDOT's amendment of standards and specifications¹ pertaining to the use of gravel in hot-asphalt mixes for roads and bridge superstructures. These amended specifications require that mixes used for these purposes contain gravel having a bulk specific gravity greater than 2.550. The amendments made Blue Ridge's gravel, called "chert," unsuitable because it has a bulk specific gravity less than that set by the amended specifications. Documents filed in support of the mandamus petition show that ALDOT adopted the new specifications after testing of road surfaces revealed a series of problems with roads constructed with materials permitted by the old specifications. It is undisputed that ALDOT's adoption of new specifications adversely affected the market for chert gravel and thereby caused Blue Ridge to sustain large losses.

Blue Ridge sued ALDOT and the named officers and employees, alleging intentional interference with a business or contractual relationship; intentional misrepresentation; suppression; and civil conspiracy.

Because this petition arises out of the trial court's denial of the defendants' motions for summary judgment, our review is guided by Rule 56, Ala. R. Civ. P. Under that rule, a party moving for a summary judgment is entitled to such a judgment if that party meets the following two-tiered standard: 1) There must be no genuine issue of material fact and 2) the movant must be entitled to a judgment as a matter of law. Rule 56(c); Carpenter v. Davis, 688 So.2d 256, 258 (Ala.1997). Furthermore, this Court must view all the evidence in a light most favorable to the nonmovant and must resolve all reasonable questions from the evidence in favor of the nonmovant. Fincher v. Robinson Bros. Lincoln-Mercury, Inc., 583 So.2d 256 (Ala. 1991); see Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990)

.

The movant must make a prima facie showing that there are no genuine issues of material fact and that he is entitled to a judgment as a matter of law. Fincher, 583 So.2d at 257. If the movant makes this showing, the burden then shifts to the nonmovant to rebut the movant's prima facie showing by presenting "substantial evidence" creating a genuine issue of material fact. Id. "Substantial evidence" is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co., 547 So.2d 870, 871 (Ala. 1989).

II.

ALDOT's petition indicates that ALDOT and the Federal Highway Administration ("FHWA") generally oversee the construction and maintenance of Alabama's roads. ALDOT, which uses Federal highway funds, must comply with Federal regulations regarding the design and construction of roadways. The FHWA manages the disbursement of these funds and is responsible for ensuring that State agencies using them comply with Federal law and regulations. See generally, Title 23, U.S.C., and Title 23, C.F.R. Federal regulations dictate that states design and employ pavements that will accommodate predicted traffic flows in a safe and economical manner. In furtherance of this policy, the FHWA requires State highway authorities, including ALDOT, to conduct skid tests on various road surfaces and to submit the results for review. These skid tests measure the friction between a tire and the road surface and aid in identifying roadways that may be unsafe.

During the 1980s, skid tests performed on an assortment of Alabama's roads revealed that many of the surfaces were unsafe and had deteriorated more rapidly than expected. ALDOT investigated these roads and discovered that their surfaces had been repaved with asphalt containing chert gravel as the coarse aggregate. At the time these roads were repaved, ALDOT's specifications required only that coarse aggregates have a maximum moisture absorption level of 5%. ALDOT launched further investigations to determine why projects meeting specifications had failed.

In June 1993, Dr. Frazier Parker, Jr., of the Highway Research Center at Auburn University, conducted a study of asphalt surfaces and tested the endurance and performance of potential mixes. His report concluded that stripping, a phenomenon that occurs when the asphalt separates from the coarse aggregate, resulted from the presence of water in the asphalt mix; the water caused the aggregate and the asphalt to lose adhesion.

In 1994, ALDOT first started to consider imposing a minimum bulk specific gravity of 2.550 on coarse aggregate by implementing such a requirement on individual contracts not pertaining to city or county road-construction projects. Blue Ridge did not oppose the implementation of the individual restrictions, because of the volume of business it enjoyed with projects that were not covered by the restriction. Nevertheless, ALDOT continued to research the use of chert gravel in hot-mix asphalt. It formed the Chert Study Task Force in May 1994 to study the use of chert gravel and its possible moisture retention in road surfaces. In December of that year, the Task Force issued its report, concluding that Alabama road surfaces prematurely deteriorated because of internal moisture, which is an inherent characteristic of chert gravel. Consequently, ALDOT began to study the formulation and adoption of new specifications to eliminate the moisture problem. In April 1995, the Materials and Tests Bureau, a division within ALDOT, recommended the promulgation of a new specification for a more stringent gravel-absorption level of 2%. ALDOT adopted this new specification in May 1996, after obtaining the approval of the FHWA.

In March 1996, Bob Estes, the owner of Blue Ridge, learned that ALDOT had been considering expanding the implementation of the 2.550 bulk-specific-gravity minimum requirement to all Department road projects. Estes became concerned about the implications of this proposed rule, because Blue Ridge derived most of its revenue from its subcontracts with road-construction companies that had contracted with ALDOT to build roads.² Estes was concerned that the blanket implementation of the new bulk-specific-gravity requirement would destroy the market for chert gravel and would thereby drive Blue Ridge out of business. After hearing that ALDOT specifications might change, Estes immediately requested a meeting with ALDOT officials, including each of the individual defendants. He says he asked for the reasons behind the possible change in the specifications and was told that the new specification was "picked out of the air to keep [chert] gravel out of roadways." Estes told the officials that the requirement would be fatal to Blue Ridge's business. Estes says that at the conclusion of the meeting, Jimmy Butts, the director of ALDOT, told him that ALDOT would continue to use chert gravel for road projects scheduled for the upcoming 1997 bidding season if Blue Ridge crushed its chert gravel to a certain size.

After the meeting, ALDOT published its "Approved Source List," which contained an amendment allowing Blue Ridge to supply chert gravel for use in hot-mix asphalt if it was crushed to the specified size. This list went unchanged for 10 months after Estes had met with ALDOT officials. Estes says that he believed ALDOT would continue to allow the use of chert gravel and that, based on that belief, Blue Ridge borrowed and spent $1.2 million to prepare to meet its potential obligations to construction companies that normally contracted with Blue Ridge for aggregate material. Meanwhile, ALDOT continued with its research regarding pavement failures involving chert gravel, but also continued with its plans for that year for road construction using the 2% moisture-standard specification promulgated in 1996.

ALDOT began a resurfacing project on U.S. Highway 72 in August 1996, using in that project chert gravel meeting the 2% moisture standard. This material was supplied by Blue Ridge. Six months after the project was completed, James Brown, an ALDOT engineer, noticed failures in the road surface. ALDOT, at substantial cost, removed and replaced the materials that had caused the failure.

After ALDOT had discovered the failures in the Highway 72 project, several ALDOT employees, including Larry Lockett, Ray Bass, James Brown, Norris Killen (all of whom Blue Ridge named as defendants in its lawsuit), and two others not named in this action, toured North Alabama highway projects. After they hade made that tour, ALDOT, in March 1997, adopted new specifications that eliminated chert gravel from hot-asphalt mixes on State highway projects; it did so on the recommendations of Bass, Lockett, and Butts. These men based their recommendations on observations and extensive research conducted by other individual ...