Ex Parte Capstone Bldg. Corp.

• Decision Date: 03 June 2011
• Docket Number: 1090966
• Parties: Ex parte Capstone Building Corporation In re: William Walker v. Capstone Building Corporation
• Court: Alabama Supreme Court

Ex parte Capstone Building Corporation

In re: William Walker v. Capstone Building Corporation

1090966

SUPREME COURT OF ALABAMA

Dated: June 3, 2011

OCTOBER TERM, 2010-2011

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF CIVIL APPEALS

(Tuscaloosa Circuit Court, CV-07-900226; Court of Civil Appeals, 2081153)

MURDOCK, Justice.

We granted Capstone Building Corporation's petition for a writ of certiorari to review the decision of the Court ofCivil Appeals in Walker v. Capstone Building Corp., [Ms. 2081153, March 26, 2010] ___ So. 3d ___ (Ala. Civ. App. 2010), in which the Court of Civil Appeals, relying upon this Court's decision in McKenzie v. Killian, 887 So. 2d 861 (Ala. 2004), applied a six-year statute of limitations to a claim of wantonness. In McKenzie, this Court held that a tort claim based on allegations of wanton misconduct was subject to the six-year statute of limitations found in Ala. Code 1975, § 6-2-34(1), rather than the two-year statute of limitations found in Ala. Code 1975, § 6-2-38(1). We hereby overrule McKenzie and confirm that claims of wantonness are subject to the two-year statute of limitations found in Ala. Code 1975, § 6-2-38(1). Nevertheless, because we conclude that we cannot apply today's decision retroactively in the present case, we affirm the judgment of the Court of Civil Appeals.

I. Facts and Procedural History

The pertinent facts as stated in Walker are as follows:

"[William 'Toby'] Walker filed an action against Capstone and several fictitiously named parties on July 10, 2007. He alleged that Capstone had been the general contractor on a construction job on which he had worked. Walker alleged that, on July 12, 2005, while working at the construction site, he stepped on a manhole cover, which flipped over, causing him to fall partially into the manhole andcausing him serious injury. He asserted that Capstone had been responsible for providing a safe work environment at the site but that it had failed in that responsibility. Walker alleged that Capstone previously had been made aware that the manhole cover that had flipped over was not properly secured and was unsafe because of a previous accident involving the same manhole cover. He alleged that Capstone's failure to properly secure the manhole cover constituted negligence or wantonness.

"On April 20, 2009, Capstone filed a motion to dismiss or, in the alternative, for a summary judgment. It contended that the evidence developed during discovery demonstrated that the incident giving rise to Walker's action occurred on June 6, 2005, not on July 12, 2005, as alleged in the complaint. As a result, Capstone argued, Walker's claims alleging negligence and wantonness were barred by the two-year statute of limitations set forth in § 6-2-38, Ala. Code 1975. In support of its motion, Capstone submitted, among other things, the incident report generated as a result of the accident forming the basis of Walker's action, deposition excerpts, and affidavits. Walker filed a response to Capstone's motion in which he argued that there was a question of fact as to when the incident occurred and that, even if his negligence claim was barred by the applicable statute of limitations, his claim of wantonness was, he maintained, subject to a six-year statute of limitations that had not run at the time he filed his action.

"....

"On August 10, 2009, the trial court granted Capstone's motion and entered a summary judgment in its favor."

___ So. 3d at ___.

Walker appealed to the Court of Civil Appeals, arguing that the six-year statute of limitations found in § 6-2-34(1) applied to his claim alleging wantonness:¹

"Walker contends that the statute of limitations applicable to wantonness claims is set forth in § 6-2-34(1), Ala. Code 1975, which provides that '[a]ctions for any trespass to person or liberty, such as false imprisonment or assault and battery,' are subject to a six-year statute of limitations. He argues that, because it is undisputed that his action was filed within six years of the date on which he was allegedly injured, the trial court erred when it entered a summary judgment in favor of Capstone as to his wantonness claim. In asserting that argument, Walker relies on our supreme court's decisions in McKenzie v. Killian, 887 So. 2d 861 (Ala. 2004), and Carr v. International Refining & Manufacturing Co., 13 So. 3d 947 (Ala. 2009) (plurality opinion)."

___ So. 3d at ___ (footnote omitted).

After discussing the decisions in McKenzie and Carr v. International Refining & Manufacturing Co., 13 So. 3d 947 (Ala. 2009), the Court of Civil Appeals continued:

"In the present case, Walker alleged that Capstone acted with wantonness and, in so doing, caused his personal injuries. Based on the holding in McKenzie and the plurality opinion in Carr, we must conclude that Walker's wantonness claim is governed by the six-year statute of limitations applicable to trespass claims, rather than the two-year statute of limitations the trial court applied. As such, the trial court's summary judgment with regard to Walker's wantonness claim is due to be reversed.

"We note Capstone's argument that, if McKenzie and Carr require this court to apply a six-year statute of limitations to Walker's wantonness claim, those decisions represent unconstitutional attempts by our supreme court to create a separate cause of action for wantonness, even though the Alabama Code does not enumerate such a claim, as well as a judicial attempt to amend the statute of limitations provided by the Alabama Code. As such, Capstone argues, McKenzie and Carr should be overruled.

"We will not address the merits of this contention. This court is bound by the decisions of our supreme court, and we are not at liberty to overrule those decisions or to choose not to follow them. See State Farm Mut. Auto. Ins. Co. v. Carlton, 867 So. 2d 320, 325 (Ala. Civ. App. 2001) ('This court is bound by the decisions of the Alabama Supreme Court, see § 12-3-16, Ala. Code 1975, and we have no authority to overrule that court's decisions.'). We recognize that a majority of the members of the supreme court did not join the main opinion in Carr; however, as previously noted, Justice See's opinion concurring in the result reached in Carr demonstrates that a majority of the members of the supreme court deciding that case were of the view that McKenzie provides that claims of wantonness are subject to a six-year statute of limitations. So long as McKenzie is binding on this court, we must and we will apply its holding."

___ So. 3d at ___.

Capstone petitioned this Court for a writ of certiorari, arguing that we should overrule McKenzie and reverse thejudgment of the Court of Civil Appeals. The question presented is a pure question of law subject to de novo review by this Court. Simcala, Inc. v. American Coal Trade, Inc., 821 So.2d 197, 200 (Ala. 2001).

II. Analysis

A. Statute of Limitations

Specifically, the question presented is whether the six-year limitations period provided in § 6-2-34(1) is applicable to Walker's claim that he was injured as a result of wanton conduct by Capstone. Section 6-2-34(1) provides:

"The following must be commenced within six years:

"(1) Actions for any trespass to person or liberty, such as false imprisonment or assault and battery."

If Walker's claim does not fall within the six-year limitations period provided in § 6-2-34(1), then, by default, it falls within the two-year period provided by the catchall provision of § 6-2-38(1), which states:

"All actions for any injury to the person or rights of another not arising from contract and not specifically enumerated in this section must be brought within two years."

In applying the six-year statute of limitations of § 6-2-34(1) to Walker's claim alleging that Capstone actedwantonly, there are only two decisions of this Court upon which the Court of Civil Appeals might have, and did, rely: McKenzie v. Killian, 887 So. 2d 861 (Ala. 2004), and Carr v. International Refining & Manufacturing Co., 13 So. 3d 947 (Ala. 2009) (plurality opinion). The main opinion in only one of those decisions, McKenzie, was joined by a majority of the Court so as to constitute a precedential decision of the Court. See, e.g., State ex rel. James v. ACLU of Alabama, 711 So. 2d 952, 964 (Ala. 1998) ("[N]o appellate pronouncement becomes binding on inferior courts unless it has the concurrence of a majority of the Judges or Justices qualified to decide the cause."). As indicated, the main opinion in the other case, Carr, was a plurality opinion.

In McKenzie, this Court concluded that "wanton conduct is the equivalent in law to intentional conduct. Such an allegation of intent renders the six-year statutory period of limitations [i.e., § 6-2-34] applicable." 887 So. 2d at 870. Although the main opinion in Carr relied upon McKenzie, only four Justices joined the main opinion. Carr, 13 So. 3d at 956. Four other Justices concurred in the result; the author of this opinion dissented. Id.

In a special writing concurring in the result in Carr, Justice See offered the view that "application [of McKenzie] in this case is troubling." 13 So. 3d at 956 (See, J., concurring in the result). Justice See ultimately concluded, however, that "because we have not been asked to overrule McKenzie, [he would] concur in the result of the main opinion." 13 So. 3d at 956-58. In the present case, we have been asked to overrule McKenzie, and we do so for the reasons hereinafter discussed.

We first observe that McKenzie stands alone as an exception to the long line of cases that addressed the question of what statute of...