Mckee v. Bowers Window & Door Co. Inc.

• Decision Date: 21 July 2011
• Docket Number: 2009–CA–01315–SCT.,Nos. 2009–CA–01314–SCT,s. 2009–CA–01314–SCT
• Citation: 64 So.3d 926
• Court: Mississippi Supreme Court
• Parties: M. Curtiss McKEE and Ann Craft McKeev.BOWERS WINDOW & DOOR COMPANY, INC. and Weather Shield Manufacturing, Inc.M. Curtiss McKee and Ann Craft McKee.v.Weather Shield Manufacturing, Inc. and Bowers Window & Door Company, Inc.

64 So.3d 926

M. Curtiss McKEE and Ann Craft McKee

v.BOWERS WINDOW & DOOR COMPANY, INC. and Weather Shield Manufacturing, Inc.M. Curtiss McKee and Ann Craft McKee.

v.Weather Shield Manufacturing, Inc. and Bowers Window & Door Company, Inc.

Nos. 2009–CA–01314–SCT

2009–CA–01315–SCT.

Supreme Court of Mississippi.

April 21, 2011.Rehearing Denied July 21, 2011.

Dennis L. Horn, Shirley Payne, Madison, attorneys for appellants.J. Wade Sweat, Marisa Campbell Atkinson, Timothy Dale Crawley, Mitzi Leasha George, Ridgeland, attorneys for appellees.EN BANC.RANDOLPH, Justice, for the Court:

¶ 1. In 1998, the McKees entered into a home-construction contact with Ellington Homes, Inc. (“Ellington Homes”). Thereafter, the president of Ellington Homes instructed the McKees to look at windows at Bowers Window & Door Co., Inc. (“Bowers Window”). At Bowers Window, a salesman showed the McKees various types of windows. Ann McKee told him that she preferred wooden windows. The salesman cautioned the McKees that wooden windows would need to be maintained because “wood rots....” Ultimately, the McKees selected wooden windows designed and manufactured by Weather Shield Manufacturing, Inc. (“Weather Shield”).

¶ 2. The windows were installed by either Ellington Homes or its subcontractors, with no involvement by either Bowers Window or Weather Shield. In August 1999, the McKees moved into their new, lakefront home. Soon thereafter, the McKees experienced a multitude of problems related to construction, including leaking windows. By the spring of 2002, the wooden windows were rotting. Subsequently, the home underwent a significant reconstruction to remedy its various problems.

¶ 3. In September 2002, the McKees filed suit against Ellington Homes, ¹ Weather Shield, and Bowers Window. While acknowledging that the home had multiple problems which did not pertain to either Weather Shield or Bowers Window, the McKees alleged that the window manufacturer and the window seller were liable because the wooden windows were “a defective product in that they have leaked ever since they were placed in the house.” After the circuit court entered a pretrial order excluding expert testimony by the McKees' designated expert regarding the defectiveness of the windows, both Weather Shield and Bowers Window filed “Motions for Summary Judgment.” Following separate hearings, the circuit court granted summary judgment in favor of Weather Shield and Bowers Window.

FACTS

¶ 4. On August 28, 1998, the McKees entered into a home-construction contract with Ellington Homes. Thereafter, according to Ann McKee, the sole proprietor of a realty company, the McKees were instructed by James R. Ellington, the president of Ellington Homes, “to go and look at windows at Bowers [Window].” The deposition testimony of Ann McKee provided that the salesman at Bowers Window, Mark McKee (no relation), did not recommend particular windows, but instead “just discussed different windows and ... window surface....” Mark McKee showed the McKees various types of windows, including vinyl, metal, and wooden windows. According to Ann McKee, “I probably said that we had come from a house that had wood windows, and I liked wood windows.” (Emphasis added.) This was corroborated by the deposition testimony of Curtiss McKee, which provided that “I think Ann said that she liked wood, that the metal wasn't as pretty.” According to Ann McKee, the salesman responded “that if we wanted wood, we'd have to maintain them because wood rots, and ... I remember saying, ‘Yes, we've had wood windows, and we maintain them.’ ” While Ann McKee could not recall how the specific windows were selected, Curtiss McKee stated that the McKees were informed by Mark McKee that the Weather Shield windows which were selected were “top of the line.”

¶ 5. The wooden windows were designed and manufactured by Weather Shield and, in December 1998 and January 1999, were delivered to Bowers Window. ² Later, the windows were transported to the construction site where, according to Ann McKee, they were “safely stored out of the weather in the house garage.” The installation of the windows was performed by either Ellington Homes or one of its subcontractors, with no involvement by either Weather Shield or Bowers Window. The McKees were not present when the windows were installed.

¶ 6. On or about August 20, 1999, the McKees began residing in the lakefront home. According to Ann McKee, following “the first really heavy rain, we had water that went from the window near Curtiss's desk area.... We were standing in water.” Over the next several months, the McKees claimed that the windows had leaked whenever it rained, and that Ellington Homes repeatedly had sent employees to inspect the windows. According to Ann McKee, Ellington initially believed the problem was the caulking and the rubber seals, then finally informed the McKees that he had no further solutions.

¶ 7. In the spring of 2002, the McKees contacted Bill Birdsong, Jr., to view their home and determine if it needed to be painted or pressure-washed. Birdsong observed the trim and fascia, and noticed that the windows were rotting “along the bottom, along the stool, the window sill on the outside, and about four or five inches up on each side....” Birdsong did not “tear the windows open” to see if there was any moisture barrier around them or inspect whether the windows were properly installed and sealed and/or caulked. Birdsong did not even attempt to open any of the windows.

¶ 8. Birdsong did not proceed with painting the home and “[l]eft them to decide what to do.” Subsequently, the home underwent major reconstruction, which, according to Curtiss McKee, cost $528,000. Residential builder Jeb Stewart was involved in the reconstruction, and provided deposition testimony that it included “demo[ing] the house, and tak[ing] the EIFS[ ³] off the outside of the house, and go[ing] back with real stucco and replac[ing] the windows,[ ⁴] and redo[ing] the interior where the damage was.” According to Stewart, “almost every” wooden window “was rotten.” ⁵ Stewart further stated that there was no waterproofing around any of the windows, no moisture barrier placed above some windows, and that some windows were installed using “[p]oor framing technique.” ⁶

¶ 9. Additionally, the home of the McKees' next-door neighbors (one of whom was Ann McKee's cousin) was also constructed by Ellington Homes. According to the McKees, that home had “similar ... leaking, intruding water[,]” and “just ... multiple problems....” The McKees further stated that they did not believe the windows used in that home were manufactured by Weather Shield.

¶ 10. In their Complaint, the McKees acknowledged that their home had numerous problems which did not implicate either Weather Shield or Bowers Window.⁷ Count Two of the Complaint stated that the windows manufactured by Weather Shield and purchased from Bowers Window were “ a defective product in that they have leaked ever since they were placed in the house.” (Emphasis added.) Count Three of the Complaint provided that the defendants were “jointly and severally liable for the leaking into the house and the damage caused thereby to the house structure[,]” which included reference to defects “proximately caused” by “the defective windows manufactured by [Weather Shield] and sold by [Bowers Window].”

¶ 11. On April 3, 2007, the McKees filed their “Designation of Experts.” Regarding the defectiveness of the windows, the McKees designated Birdsong as their expert. Thereafter, Weather Shield filed a “Motion In Limine to Conduct Daubert [ ⁸] Hearing and Exclude Expert Opinion Testimony of Bill Birdsong,” which was joined by Bowers Window. Following hearing, the circuit judge concluded that, while Birdsong “would be qualified as a lay person to give an opinion[,]” it would be “very difficult to find that ... the decisions of [ Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) ], [ Miss. Transp. Comm'n v. McLemore, 863 So.2d 31 (Miss.2003) ], ... would qualify him under the facts of this case and with his testimony to give testimony as an expert.” The circuit court then entered an “Order Granting Motion to Exclude Expert Witness Testimony of William Birdsong.”

¶ 12. Subsequently, Bowers Window filed a “Motion for Summary Judgment” which maintained that the McKees could not establish “the necessary elements to prove the wooden windows purchased from Bowers [Window] were defective[,]” or “meet their burden of proof with regard to their negligence claims....” ⁹ Following hearing, the circuit court granted Bowers Window's “Motion for Summary Judgment.”

¶ 13. Next, Weather Shield filed a “Motion for Summary Judgment” which maintained that the McKees had failed to establish that the windows had been “designed in a defective manner” when they had left Weather Shield's control, or that “the ‘failure’ is anything more than an inherent characteristic of that product—the fact that wood rots.” Following hearing, the circuit court entered an “Order Granting Weather Shield Manufacturing, Inc.'s Motion for Summary Judgment.”

¶ 14. Subsequently, the McKees timely filed “Notice of Appeal” regarding the “Order Granting Motion to Exclude Expert Witness Testimony of William Birdsong,” the “Order Granting Bowers Window and Door Co., Inc.'s Motion for Summary Judgment,” and the “Order Granting Weather Shield Manufacturing, Inc.'s Motion for Summary Judgment.” This Court consolidated the appeal of those rulings.

ISSUES

¶ 15. This Court will consider:

(1) Whether the circuit court abused its discretion in excluding Bill Birdsong from providing expert testimony.

(2) Whether the circuit court erred in granting summary judgment in favor of Weather Shield and Bowers Window.

ANALYSIS

I. Whether the circuit court abused its discretion in excluding Bill Birdsong from providing expert testimony.

¶ 16. “[T]he admission of expert testimony is within the...