Miller v. Pettibone Corp.

Decision Date05 January 1996
Citation693 So.2d 1365
PartiesThomas MILLER v. PETTIBONE CORPORATION, et al. 2940796.
CourtAlabama Court of Civil Appeals

Rehearing Denied Feb. 23, 1996.

Eddie Beason of Fine & McDowell, Russellville, for Appellant.

LaBella S. Alvis, Deborah Alley Smith, and Glenn E. Ireland of Rives & Peterson, Birmingham, for Pettibone Corporation.


On July 17, 1991, Thomas Miller sued Pettibone Corporation (the "corporation") and other defendants, alleging various claims arising out of difficulties Miller had experienced with a Barko 775 feller buncher, manufactured by the corporation. Miller amended his complaint several times and dismissed various defendants from the action. When the case proceeded to trial, the only claims at issue involved breach of express warranty, breach of implied warranty, revocation of acceptance, negligent repair, and negligent training of repair personnel.

At the close of Miller's case in chief, the corporation moved for a directed verdict as to each claim of the complaint. After considering the motion and arguments of counsel, the trial court granted the motion for directed verdict as to each count of the complaint. The court entered a judgment on the directed verdict. Miller filed a post-judgment motion, which was denied. Miller appealed to our Supreme Court, which transferred the case to this court pursuant to Ala.Code 1975, § 12-2-7(6).

We note at the outset that a feller buncher is a piece of equipment used in the logging industry to cut and bunch trees. The feller buncher at issue in this case was manufactured by Barko Hydraulics, a division of the corporation. Miller purchased the feller buncher from Kennemer Manufacturing, Inc., an authorized Barko dealer. The hydrostatic transmission unit contained on the feller buncher was manufactured by Sauer-Sundstrand Company. The feller buncher Miller purchased was equipped with a sheer head rather than a saw head. Miller had requested the sheer head because it was less expensive to operate than a saw head was.

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 shear 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.

Before the last hydrostatic failure, Miller alleged that a Barko service manager, Ed Cass, telephoned Miller to inform him that he owed $6,000 or $7,000 for some of the hydrostats that had been replaced. Miller alleged that Cass told him that these repairs had been denied under the warranty. Miller claims that he requested that Cass or someone else from Barko come and repair the machine, but that no one ever did.

Miller testified at trial that if the machine had been in the condition as warranted, the machine would have been worth the price he paid for it--$107,590; however, he claimed, the value of the machine in its defective condition was substantially less--$10,000.

Miller argues that the trial court erred in granting the corporation's motion for directed verdict.

In reviewing a directed verdict, we must determine whether the nonmoving party presented substantial evidence in support of his or her claim. Lemond Construction Co. v. Wheeler, 669 So.2d 855 (Ala.1995); Smith v. Vice, 641 So.2d 785 (Ala.1994); Dial v. Dial, 603 So.2d 1020 (Ala.1992). "A verdict is properly directed only where there is a complete absence of proof on a material issue or where there are no disputed questions of fact for the jury to determine." K.S. v. Carr, 618 So.2d 707, 713 (Ala.1993). Furthermore, on review of a directed verdict, no presumption of correctness attaches to the trial court's ruling. Id.

Motion for Directed Verdict
A. Breach of Express Warranty

Miller's complaint asserted two claims alleging breach of warranty: one alleging breach of the Pettibone warranty and one alleging breach of the Sauer-Sundstrand warranty ("SS warranty"). These claims are grounded upon Miller's alleged complaints regarding the hydrostatic transmission. The claim alleging breach of the Pettibone warranty asserts that the feller buncher had certain defects in materials and workmanship that were discovered within the warranty period, specifically repeated hydrostatic transmission failures, and more specifically, failures of the hydrostat motors and pumps. In his claim alleging breach of the SS warranty, Miller asserts that the corporation had failed and refused to repair the feller buncher as provided in the hydrostatic transmission warranty policy and that the hydrostatic transmission is still in a defective condition. Miller did not claim in the complaint or at trial that other problems he had experienced with the feller buncher gave rise to any claim of breach of warranty.

Miller failed to produce substantial evidence that Pettibone breached its express warranty. The Pettibone warranty states:

"Pettibone will cause any part of a Pettibone product covered by this warranty which proves to be defective in material or workmanship within six (6) months or 1,000 hours, whichever occurs first from [the] first day in service ... to be replaced without charge with a new or repaired part, at Pettibone's election. Pettibone also will cause the labor to remove any such defective part and to install the new or repaired part to be provided without charge to the owner of said Pettibone product. The parts and labor to meet this warranty will be furnished by Pettibone distributor designated by Pettibone.


"Pettibone's warranty does not cover:


"9. Engines, transmissions and components, ... not manufactured by Pettibone. The warranty of the respective manufacturers of these components shall apply to said items unless said manufacturers make no warranty with respect to said items, in which event Pettibone's warranty shall apply.



As stated, the Pettibone warranty warrants the feller buncher manufactured by Pettibone to be free from defects in material and workmanship; however, the warranty excludes from its coverage transmissions not manufactured by Pettibone. The Pettibone warranty further provides that the warranties of the respective manufacturers of the components apply to these items. Therefore, we conclude that the corporation did not breach its warranty, because the warranty specifically excludes transmissions.

Assuming, arguendo, that the Pettibone warranty could apply to the hydrostatic transmission problem, the warranty is limited to repair or replacement of parts determined to be defective in material or workmanship. Miller testified that most of the hydrostatic problems were corrected by the corporation either by repair or replacement. Miller did not produce substantial evidence to show that the other problems with the hydraulic system resulted from a defect in the material or workmanship of the hydraulic system. Moreover, Miller denied the corporation's request to inspect the feller buncher until 10 days before trial, when the trial court ordered Miller to allow the corporation to inspect the machine. Therefore, the corporation was unable to inspect the machine to determine if a warranty claim had occurred and, by removing the hydrostat and having it disassembled, Miller prevented the corporation from ever being able to determine if the unit was defective in material or workmanship. Miller failed to offer substantial evidence that the corporation breached its warranty; therefore, the trial court correctly granted the corporation's motion for directed verdict on the breach of warranty claim with respect to the Pettibone warranty.

The SS warranty covered the hydrostatic transmission system of the feller buncher; that warranty states in pertinent part:

"Sundstrand 36 series pumps and VII-160 motors shall be warranted to the original owner for a period of 24 months from in-service date of the machine. During the first 6 months or 1,000 hours, Barko/Sundstrand, will determine if units are warrantable.... After the first 6 months or 1,000 hours, component warranty will be determined by Sundstrand.... It shall be the option of Barko and/or Sundstrand to replace any failed units with genuine Sundstrand rebuilt units. Such units may be replaced more than once during the warranty."

Miller also failed to introduce substantial evidence that the corporation breached the express SS warranty. It is undisputed that with one exception, every problem with the hydrostatic transmission was promptly addressed by the corporation or its representative. The hydrostatic motor shuttle valve was repaired under warranty, and the hydrostatic motor and pump were replaced under warranty. These were the only two hydrostatic transmission problems submitted to the corporation within the six-month warranty period.

On July 10, 1990, a hydrostatic pump was repaired and a warranty claim was submitted to the corporation by Kennemer. Pursuant to the SS warranty, the corporation forwarded the claim to Sundstrand, which denied the entire claim based upon Miller's failure to keep the hydraulic system clean. Miller did not pay for any repair work; the corporation and Kennemer absorbed the costs. On July 18, 1990, a hydrostatic motor was damaged and a new motor...

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1 cases
  • Ex parte Miller
    • United States
    • Alabama Supreme Court
    • March 14, 1997 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 s......

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