Payton v. Monsanto Co.

• Decision Date: 04 May 2001
• Citation: 801 So.2d 829
• Parties: Ben L. PAYTON et al. v. MONSANTO COMPANY and Blake Hamilton.
• Court: Alabama Supreme Court

801 So.2d 829

Ben L. PAYTON et al. v. MONSANTO COMPANY and Blake Hamilton.

1990918.

Supreme Court of Alabama.

May 4, 2001.

J. Gusty Yearout and Deborah S. Braden of Yearout, Myers & Traylor, P.C., Birmingham; and M. Clay Ragsdale IV, Birmingham, for appellants.

Warren B. Lightfoot, John M. Johnson, Adam K. Peck, Jackson R. Sharman III, and W. Larkin Radney IV of Lightfoot, Franklin & White, L.L.C., Birmingham; and Hewitt L. Conwill of Conwill & Justice, Columbiana, for appellees.

LYONS, Justice.

This case involves the timeliness of claims alleging that the Monsanto Company and its agents had polluted Lay Lake. Ben L. Payton, Thomas R. Edwards, and Cliassa Edwards (all hereinafter referred to as "Payton"), on behalf of themselves and a putative class of persons similarly situated, sued Monsanto, Blake Hamilton,¹ and a number of fictitiously named parties (all hereinafter referred to as "Monsanto") on July 15, 1997, alleging. that Monsanto and the other defendants are liable for money damages, based on theories of negligence; wantonness; breach of a duty to warn of the inherent dangers of polychlorinated biphenyls ("PCBs"); fraud, misrepresentation and deceit; private and public nuisance; trespass; battery; assault; negligent infliction of emotional distress; intentional infliction of emotional distress (the tort of outrage); strict liability; and breach of riparian rights—all resulting from the pollution of Lay Lake with PCBs.

I. Background and the Proceedings Below

This action arises from Monsanto's manufacture of PCBs at its facility near Anniston. Payton alleges that Monsanto discharged PCBs into Snow Creek, which flows into Choccolocco Creek, which in turn flows into the Coosa River, which in turn, flows into Lay Lake. The putative class consists of landowners, lessees, and licensees of property located on Lay Lake; the plaintiffs allege on behalf of the putative class various theories of personal injury and property damage resulting from Monsanto's pollution of Lay Lake with PCBs. The plaintiffs allege that Monsanto had improperly discharged PCBs into Snow Creek at various times since the Anniston plant had opened and that even though Monsanto had ceased producing PCBs in the early 1970s, the PCBs from Monsanto's property are continuing to enter the water system that flows into Lay Lake.

After the action took a circuitous route from the circuit court to a federal district court and finally back to the circuit court, and after some preliminary discovery, Monsanto moved for a summary judgment on May 7, 1999. Monsanto asserted two independent grounds for holding that there was no genuine issue of material fact, a holding that would entitle it to a summary judgment. Monsanto claimed 1) that Payton's claims were barred by the statute of limitations and 2) that Payton was trying to recover twice for the same cause of action.

The trial court stated in its order entering a partial summary judgment in favor of Monsanto:

"[A]ll the plaintiffs' claims based upon actions and damage that allegedly occurred prior to the final disposition of the Comfort case are barred as a matter of law because plaintiffs were compensated in Comfort for the same PCB related claims they make here.... Therefore, defendants are entitled to summary judgment on all plaintiffs' claims based upon any actions and damage that allegedly occurred prior to July 26, 1993."

The trial court further stated that, "given the length of time this case has been pending, the Court believes that plaintiffs should be in a position by now to make at least a prima facie showing of causation," and it ordered Payton to produce "competent evidence of damage (whether personal injury or property damage) caused [the named plaintiffs] and the putative class by actions of the defendants after July 26, 1993." (Emphasis added.)

In response to this order, Payton, while objecting to the court's imposing on him the burden to show the timeliness of his claims, in view of the absence of evidence offered by Monsanto, submitted various affidavits and deposition testimony. After submission of these evidentiary materials and before the hearing on the remaining issues relating to Monsanto's motion for summary judgment, Monsanto moved to strike the submissions for the lack of evidence of anything Monsanto did after July 1993 to cause any damage, for failure to identify or quantify any post-1993 damages, and the failure to demonstrate any connection between any act of Monsanto and the alleged damage. The trial court held a hearing and thereafter entered a summary judgment for Monsanto. In an order entered after it had entered the summary judgment, the trial court determined that Monsanto's motion to strike was moot. Payton filed a subsequent motion to vacate the summary judgment. Payton offered no additional evidentiary materials but merely restated some of the averments in his affidavits and insisted upon their sufficiency. The trial court denied Payton's motion to vacate, and the present appeal ensued.

II. The Comfort Settlement and Double Recovery

Monsanto argues that the settlement in Comfort v. Kimberly-Clark Corp. (No. CV-90-616, Shelby Circuit Court) extinguished any claims based on PCB contamination of Lay Lake. Comfort involved the same plaintiffs, but consisted of allegations of environmental pollution directed at Kimberly Clark-Corporation. Although the plaintiff class in Comfort and the putative class in the present action are identical, the gravamen of the complaint, the injuries complained of, and the defendants are distinct. In Comfort, the plaintiffs alleged that a paper mill owned and operated by Kimberly-Clark released dioxins, specifically all cogeners of dibenzo-p-dioxin and dibenzzofuran, including, without limitation, 2,3,7,8-Tetrachlorodibenzo-p-diox-in, into Lay Lake. A settlement was submitted to the trial court on July 26, 1993, releasing Kimberly-Clark from all liability relating to its chemical discharges into Lay Lake. In the settlement agreement, Kimberly-Clark denied all of the material allegations of the complaint.

The basis of Monsanto's defense, that the present action is barred by the legal doctrine that prohibits a double recovery, arises from information submitted by the Comfort plaintiffs in response to a pretrial case-management order, where they listed the chemicals that were to be the basis of their action, one of which was PCBs.

The trial court in the present action entered a summary judgment in favor of Monsanto as to claims for any damages accruing before July 26, 1993, the date of the Comfort settlement. Payton contends that "there is no evidence of damages as a result of PCB contamination until the posting of the fish advisory in 1997, well after the settlement of the case against Kimberly-Clark, a case in which there was no competent evidence of damage to any of the plaintiffs therein by PCBs." Because this contention is inconsistent with any claim for damages based on events occurring before the date of the Comfort settlement, we pretermit further consideration of the summary judgment in favor of Monsanto on its defense to the claims for damages allegedly sustained before the settlement in Comfort, and we affirm the trial court's partial summary judgment in favor of Monsanto as to any damages occurring before the settlement of the Comfort litigation.

III. Standard of Review

The standard by which this Court will review a motion for summary judgment is well established:

"The principles of law applicable to a motion for summary judgment are well settled. To grant such a motion, the trial court must determine that the evidence does not create a genuine issue of material fact and that the movant is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. When the movant makes a prima facie showing that those two conditions are satisfied, the burden shifts to the nonmovant to present `substantial evidence' creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); § 12-21-12(d)[,] Ala.Code 1975. Evidence is `substantial' if it is of `such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.' West v. Founders Life Assur. Co. of Florida, 547 So.2d 870, 871 (Ala.1989).

"In our review of a summary judgment, we apply the same standard as the trial court. Ex parte Lumpkin, 702 So.2d 462, 465 (Ala.1997). Our review is subject to the caveat that we must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990)."

Ex parte Alfa Mut. Gen. Ins. Co., 742 So.2d 182, 184 (Ala.1999).

IV. Statute of Limitations

Payton contends that the trial court erred in entering the summary judgment in favor of Monsanto based upon its assertion of the defense of the statute of limitations. Payton argues that Monsanto did not satisfy its burden under Ex parte General Motors Corp., 769 So.2d 903 (Ala. 1999), and Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), and that, therefore, the burden was impermissibly placed upon him to oppose Monsanto's motion.

The effect of the rule in Celotex, embraced in Ex parte General Motors Corp., was considered in greater detail in Beatty v. Washington Metropolitan Area Transit Authority, 860 F.2d 1117, 1120-21 (D.C.Cir.1988), where the court stated:

"The Supreme Court explained that `a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion,' and that there is an `absence of a genuine issue of material fact.' [Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)]. A motion properly made and supported by the moving party requires that the non-moving party `set forth specific facts

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