Fowlkes v. Liberty Mut. Ins. Co.
| Decision Date | 03 October 1980 |
| Citation | 392 So.2d 803 |
| Parties | Richard FOWLKES v. LIBERTY MUTUAL INSURANCE COMPANY. 78-652. |
| Court | Alabama Supreme Court |
Ross Diamond, III and Stephen J. Flynn of Diamond, Lattof, Gardner, Pate & Peters, Mobile, for appellant.
Richard T. Dorman of Johnstone, Adams, May, Howard & Hill, Mobile, for appellee.
Richard Fowlkes appeals from the granting of a motion to dismiss Liberty Mutual Insurance Company in an action brought by Fowlkes against Liberty Mutual and others for personal injuries sustained when a furnace exploded. We affirm.
Fowlkes had been an employee of Airco Alloys & Carbide Corporation since 1970. At the time of the accident he was employed in the position of furnace operator. His duties consisted of monitoring the pressure of the furnace and shutting it down if it exploded or erupted. The potential of explosion stemmed from the fact that the furnace was used in a manganese process although it had been designed for a pig-iron process.
On October 28, 1972, as Fowlkes was working in the control room, the furnace erupted and spewed forth fire, smoke, carbon monoxide and molten metal. Fowlkes shut the furnace down and sought an escape route from the furnace area. To perfect his escape, Fowlkes had to jump from the lower end of a suspended staircase to the railroad tracks thirty feet below. He alleges that as a result of this jump, he has sustained severe, painful and permanent injuries which have reduced his earning capacity, caused him pain and anguish and have caused him to incur medical expenses.
On October 5, 1973, Fowlkes filed his original complaint against the Frank C. Huber Company, a construction company which had performed extensive work in Airco's plant, including maintenance and alterations on the furnace; and against four unknown defendants designated as John Doe I through John Doe IV. These defendants were described as "persons, partnerships or corporations whose names, identities, and places of business are unknown to the plaintiff, but will be added by amendment when this information is ascertained." Fowlkes alleged that these defendants were responsible for the manufacture, sale or maintenance of the equipment, fixtures and premises where Fowlkes was employed.
In February of 1976, Fowlkes filed an amended complaint substituting DeMag Electro Metelurgy (a/k/a and d/b/a DeMag Baumaschinen, a German corporation, and DeMag American Corporation, a corporation) for John Doe I.
On September 12, 1977, Fowlkes again moved to amend his complaint. This motion was granted and Liberty Mutual Insurance Company was substituted for John Doe II. Counts three, four and five, alleging negligence, breach of contract and willful and wanton conduct, were added in this amended complaint.
On January 17, 1978, Liberty moved for an order dismissing Fowlkes' complaint with prejudice on the ground that the complaint failed to state a claim upon which relief could be granted. Liberty moved in the alternative for summary judgment on the ground that no genuine issue of material fact had been presented. Both the motion to dismiss and that for summary judgment were based upon the contention that counts three, four and five were barred by a one-year statute of limitations.
On February 24, 1978, Liberty's motion to dismiss was granted as to count five. Three days later a motion to dismiss was granted as to counts three and four, without prejudice. Fowlkes was given twenty days within which to amend.
Fowlkes amended his complaint by adding count six, a negligence claim, and count seven, a contract claim.
Liberty again filed a motion to dismiss, or, in the alternative, for summary judgment, on the basis that counts six and seven of the amended complaint were barred by a one-year statute of limitations. On January 9, 1979, counts six and seven were dismissed with prejudice.
The trial court denied Fowlkes' motion for reconsideration of counts six and seven and he now appeals to this Court, seeking relief from the trial court's dismissal of counts three through seven.
The issue presented for our consideration is whether these counts properly relate back through Fowlkes' compliance with Rule 9(h), ARCP.
Counts three and six of Fowlkes' amended complaint allege Liberty was negligent in undertaking to provide safety inspections and safety programs. Liberty contends that these counts are barred by the one-year statute of limitations applicable to personal injury actions. Code 1975, § 6-2-39 (a) (5). Counts four and seven are contract counts...
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