McKenzie v. Killian
Decision Date | 05 March 2004 |
Parties | Rebecca McKENZIE v. George KILLIAN III. |
Court | Alabama Supreme Court |
W. Eugene Rutledge, Birmingham, for appellant.
Ralph D. Gaines III, Staci G. Cornelius, and Brian H. Tobin of Gaines, Wolter & Kinney, P.C., Birmingham, for appellee.
Rebecca McKenzie appeals from the trial court's summary judgment against her in her action against George Killian III. We affirm.
On November 18, 2000, McKenzie stopped her vehicle on an interstate highway in Hoover while officials were clearing a previous accident. Killian, according to the accident report, entered the interstate from an entry ramp, was blinded by sunlight, and collided with the left rear of McKenzie's vehicle. Also according to the accident report, a third motorist, Samuel Barber II, followed Killian on to the interstate. After Killian's vehicle struck McKenzie's vehicle, Barber collided with the right rear of McKenzie's vehicle.
On November 18, 2002, McKenzie sued Barber and fictitiously named defendants, alleging that their negligent, willful, and/or wanton acts caused the accident. On January 6, 2003, McKenzie amended her complaint to substitute Killian for a fictitiously named defendant. Killian filed a motion for a summary judgment, arguing that McKenzie's negligence and wantonness claims were barred by the two-year statute of limitations set forth in § 6-2-38, Ala.Code 1975. Specifically, Killian argued that McKenzie was aware of his identity through correspondence from the insurance company and the accident report; therefore, he argued, McKenzie could not substitute him for a fictitiously named defendant after the lapse of the two-year statutory limitations period. McKenzie responded by arguing that her wantonness claims were grounded in an action for trespass and were therefore governed by the six-year statutory period of limitations set forth in § 6-2-34(1), Ala.Code 1975.
The trial court entered a summary judgment for Killian as to McKenzie's negligence and wantonness claims. In its summary-judgment order, the trial court concluded that McKenzie's failure to exercise due diligence in ascertaining the identity of the responsible party precluded her from relying upon Rule 9(h), Ala. R. Civ. P., for substituting him for the fictitiously named defendant; thus, the trial court concluded, the filing of the complaint with allegations against fictitiously named parties did not save McKenzie from Killian's statute-of-limitations defense. The trial court, in disposing of McKenzie's contention that a six-year, rather than a two-year, statute of limitations applied relied upon Lowery v. Densmore, 739 So.2d 1115 (Ala.Civ.App.1998), and stated, "[T]respass is an intentional or wanton direct application of force by defendant or under his or her authority." Then, the trial court concluded that "there is no evidence to establish a willful or wanton application of force." The trial court made the summary judgment final pursuant to Rule 54(b) and noted as follows in its certification order:
McKenzie appealed.
Before this Court McKenzie does not challenge the trial court's adverse ruling on her negligence claim rejecting her effort to substitute Killian for a fictitiously named party, based on the statute of limitations. McKenzie maintains on appeal, just as she did in the trial court, that her wantonness claim against Killian constitutes an action in trespass. McKenzie argues that intent should be irrelevant in determining whether an act constitutes trespass. Instead, she says, Alabama courts should label an action trespass if an injury is caused by a direct force and the injury is immediate rather than consequential. McKenzie contends that personal injuries sustained in a vehicular collision are injuries immediately inflicted by a direct force. McKenzie refers us to a law review article by Linda Suzanne Webb, Limitation of Tort Actions under Alabama Law: Distinguishing between the Two-Year and the Six-Year Statutes of Limitations, 49 Ala. L.Rev. 1049 (Spring 1998) (hereinafter "the Webb article"), for a discussion of the issue.
'" quoting Green v. Taylor, 437 So.2d 1259, 1260 (Ala.1983) (emphasis added)).
In its statement in its Rule 54(b) certification order, the trial court cited Myers v. Baker, 24 Ala.App. 387, 135 So. 643 (1931), for the proposition that an automobile accident occurring "wrongfully and with great force," 24 Ala.App. at 388, 135 So. at 643, would constitute trespass if the facts prove an intentional or grossly negligent act. In Myers, the Court of Appeals stated:
24 Ala.App. at 388, 135 So. at 644 (emphasis added).
We interpret the trial court's reference to Myers as indicative of...
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...Corp., 96 So.3d 71 (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 all......
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