Ex parte Miller

Decision Date14 March 1997
Citation693 So.2d 1372
Parties32 UCC Rep.Serv.2d 839 Ex parte Thomas Miller. (Re Thomas MILLER v. PETTIBONE CORPORATION, et al.) 1950927.
CourtAlabama Supreme Court

Daniel G. McDowell and Eddie Beason of Fine & McDowell, Russellville, for petitioner.

LaBella S. Alvis, Deborah Alley Smith, and Glenn E. Ireland of Rives & Peterson, P.C., Birmingham, for respondents.

ALMON, Justice.

The plaintiff, Thomas Miller, petitioned this Court for a writ of certiorari to the Alabama Court of Civil Appeals, which was granted. He appealed from the circuit court's judgment based on a directed verdict 1 in favor of the defendant, Pettibone Corporation, at the close of the plaintiff's case. The circuit court held that Miller had failed to present substantial evidence in support of his claims alleging breach of express warranty, breach of the implied warranty of merchantability, breach of the implied warranty of fitness for a particular purpose, revocation of acceptance, and negligence. The Court of Civil Appeals affirmed. Miller v. Pettibone Corp., 693 So.2d 1365 (Ala.Civ.App.1996). Miller argues that the opinion of the Court of Civil Appeals conflicts with previous cases and that he did present substantial evidence on each count in the complaint.

The facts of this case are controverted, but, viewing the evidence most favorably to Miller, they may be summarized as follows. On July 21, 1989, Miller purchased a Barko 775 feller buncher, which is a large machine used in the forestry industry to cut and stack trees. The machine is a tractor-type vehicle, with a large shear head attached to the front to cut down trees. It is designed to cut down trees, pick them up, and stack them; using it allows loggers to save considerable time over the more traditional logging approach of using chain saws and skidders. However, a feller buncher is an expensive piece of equipment, costing over $100,000.

Miller purchased his feller buncher from Kennemer Manufacturing, Inc., a local Colbert County company with which Miller had done business for over 20 years. The Barko 775 feller buncher was manufactured by Pettibone Corporation, through its Barko Hydraulics Division. 2 Many of the component parts of the machine were manufactured by other companies, including SauerSundstrand, Inc., which made the hydrostat 3 for the feller buncher. Miller called Owen Kennemer, the president of Kennemer Manufacturing, and ordered the feller buncher over the telephone. Kennemer delivered the machine to one of Miller's job sites the following week.

The Barko feller buncher was covered by two express warranties, one directly from Pettibone and another that purported to be from Barko Hydraulics and Sauer-Sundstrand. The Pettibone warranty (hereinafter "machine warranty") was a standard limited warranty that covered the entire feller buncher for defects in material and workmanship. In contrast, the Barko Service Bulletin, dated June 16, 1987, contained a warranty ("component warranty") covering the hydrostat manufactured by Sauer-Sundstrand. This warranty was given to purchasers of Pettibone machines containing Sauer-Sundstrand components. We note that there appears to have been some confusion in the circuit court as to which company--Pettibone or Sauer-Sundstrand--was bound by this warranty, but Sauer-Sundstrand left the case by a summary judgment, and the parties do not argue here that Pettibone is not bound by the warranty. The record reflects that Barko, not Sauer-Sundstrand, wrote this warranty and that it did so for all of its customers buying its products containing Sauer-Sundstrand components.

On its very first day of operation, the feller buncher burst a hose, which Miller replaced himself. From then on, during the next 21 months, the feller buncher experienced a variety of problems that would put it out of service for days at a time. The Court of Civil Appeals described the problems with the feller buncher as follows:

"Miller alleges numerous instances in which the feller buncher experienced mechanical and operational failures: a large hose 'blew off' the machine, and he repaired it; the sheer head blades had a problem, and Kennemer sent new blades; the hydrostat experienced several problems, which Kennemer repaired on a few occasions; the radiator leaked, and Kennemer replaced it; the injectors 'went out,' and Kennemer replaced them; the main diesel engine 'went out,' and the engine was rebuilt; and the hydraulic system experienced problems. Following numerous hydrostatic failures, Miller alleged, he took the feller buncher to a garage; it remained there for approximately four years. The machine was later transported to a Barko dealership, where a Barko representative disassembled it and inspected parts of the machine."

693 So.2d at 1367-68. The final failure of the hydrostat occurred on April 18, 1991. Miller claims to have telephoned Joe Woods, a Barko sales representative, about the final breakdown of the hydrostatic transmission. Although he was not allowed to testify as to the contents of the conversation, Miller made an offer of proof that Mr. Woods told him that Barko was not going to repair the machine again. Miller then took the hydrostat to Tupelo, Mississippi, where he had another company take the hydrostat apart and rebuild it. Miller then reattached the hydrostat to the feller buncher, and it again did not work. At that point, Miller retained an attorney, who sent Pettibone a notice of breach of warranty and, subsequently, a notice of revocation of acceptance. The feller buncher sat at Fowler's garage and welding shop in Red Bay, Alabama, for approximately four years during this litigation, and it was moved to Montgomery to a Barko dealership for inspection a week before the trial.

Miller filed an action against Pettibone, among others, alleging breach of express warranty, breach of implied warranties of merchantability and fitness for a particular purpose, revocation of acceptance of the feller buncher, negligent repair, and negligent failure to train the Kennemer personnel in repairing and maintaining the feller buncher. At the conclusion of Miller's case, Pettibone moved for a directed verdict on all of Miller's claims, which the trial court granted.

In reviewing a directed verdict, this Court must determine whether the nonmoving party presented substantial evidence in support of his position. Bailey v. Avera, 560 So.2d 1038 (Ala.1990). Also, "this Court must view all evidence in a light most favorable to the nonmovant and must entertain such reasonable evidentiary inferences as the jury would be free to draw." Dial v. Dial, 603 So.2d 1020 (Ala.1992) (citation omitted).

With that standard of review in mind, we initially note that we find no error in the Court of Civil Appeals' treatment of the issues concerning the implied warranty of merchantability, the implied warranty of fitness for a particular purpose, and negligence. On the revocation of acceptance issue, we agree with Judge Yates's opinion concurring in the result. Considering the facts of this case and the lack of proof that Kennemer Corporation was the agent of Pettibone, we agree that the plaintiff failed to present substantial evidence that Pettibone could be considered the "seller" of the equipment, so as to allow Miller to revoke his acceptance. Ala.Code 1975, § 7-2-608. Accordingly, we turn to the express warranty count.

I. Express Warranty

It is uncontested that the machine warranty in this case had expired by the time of the April 18, 1991, breakdown; accordingly, as the Court of Civil Appeals correctly held, the feller buncher itself was not under warranty. 4 However, Barko Hydraulics, a division of Pettibone, made an express warranty to Miller, and to all of its customers, covering the hydrostat. 5 This component warranty provided coverage for the hydrostat for 24 months from the date of delivery. In this case, the final breakdown with the hydrostat occurred 21 months after delivery, which was within the period of the warranty. Therefore, we must address whether the scope of the component warranty includes the final breakdown of the hydrostat, and, if so, whether Miller is entitled to sue for breach of warranty or is limited to the repair and/or replacement of the hydrostat.

A. Interpretation of the Warranty

Pettibone argued, and the Court of Civil Appeals agreed, that Miller had failed to present substantial evidence of any "warrantable defect" in the hydrostat. Pettibone makes the same argument here. The component warranty says that the hydrostatic motor and pump "shall be warranted to the original owner" (emphasis added). It further states that "it shall be the option of Barko and/or Sundstrand to replace any failed units with genuine Sundstrand rebuilt units," and that "[a]ny charges for repairs to failed pumps and/or motors which are not warrantable as determined by Sundstrand will be borne by the customer" (emphasis added).

In Alabama, express warranties are governed by Ala.Code, 1975, § 7-2-313, which states:

"(1) Express warranties by the seller are created as follows:

"(a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise."

Express warranties should be treated like any other type of contract and interpreted according to general contract principles. Williston on Sales, § 15-9 (4th ed.1974). In Alabama, the crux of all express warranty claims is that the goods did not conform to the warranty. Ala.Code 1975, § 7-2-313.

The component warranty here does not specifically state that it warrants against "defects" in the product: rather, it warrants the hydrostatic pumps and motors against "failure." The Court of Civil Appeals based its affirmance on the express warranty partly because it found that Miller did not provide substantial evidence of a "warrantable...

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