Simmons v. Clemco Industries

• Decision Date: 12 January 1979
• Citation: Simmons v. Clemco Industries, 368 So.2d 509 (Ala. 1979)
• Parties: 25 UCC Rep.Serv. 1088 Martha SIMMONS, etc. v. CLEMCO INDUSTRIES et al. Albert JOHNSON v. CLEMCO INDUSTRIES et al. Alfred A. LOVE v. CLEMCO INDUSTRIES et al. CER 13, 13A.
• Court: Alabama Supreme Court

Page 509

368 So.2d 509

25 UCC Rep.Serv. 1088

Martha SIMMONS, etc. v.CLEMCO INDUSTRIES et al.

Albert JOHNSON v.CLEMCO INDUSTRIES et al.

Alfred A. LOVE v.CLEMCO INDUSTRIES et al.

CER 13, 13A.

Supreme Court of Alabama.

Jan. 12, 1979.

James C. Wood and J. Randall Crane of Simon & Wood, Mobile, for plaintiffsAlbert Johnson and Martha Simmons.

W. Boyd Reeves of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for defendantAmerican Mut. Liability Ins. Co.

Alton R. Brown, Jr., and James H. Crosby of Brown, Hudgens & Richardson, Mobile, for defendant Clemco Industries.

Robert G. Kendall of Johnston, Johnston & Kendall, Sintz, Pike, Campbell & Duke, Mobile, for Pulmosan Safety Equipment Corp., defendant.

TORBERT, Chief Justice.

The United States District Court for the Southern District of Alabama, Southern Division, requests that this court re-examine certain questions previously certified to this court in an action for breach of warranty brought by Albert Johnson, Alfred Love, and Thomas Simmons for personal injuries they sustained due to defects in sandblasting hoods manufactured and distributed by Clemco Industries and/or Pulmosan Safety Equipment Company.

The plaintiffs were employed as sandblasters for Bender Welding and Machine Company and contracted silicosis (a lung condition), which they attribute to defects in the hoods which were designed to protect them from such hazards.Thomas Simmons died as a result of his condition, and his action was revived by his wife, Martha Simmons, as executrix of his estate.The federal district court pursuant to Rule 18 of the ARAP submitted six certified questions dealing with breach of warranties and the survival of actions.We only found it necessary to answer Certified QuestionNo. 5 since, in light of that question as framed, the UCC was not applicable and pre-Code law governed.SeeJohnson v. American Mutual Liability Insurance Co., Ala., 368 So.2d 506(1978).However, on October 17, 1978, the federal district court resubmitted the remaining questions along with the following additional facts:

Each plaintiff contends that he was supplied by his employer with canvas sandblasting hoods manufactured by Pulmosan and/or Clemco and that these goods were purchased and used after the effective date of the Uniform Commercial Code as well as before.Furthermore, the plaintiffs contend that these goods also caused or contributed to their injuries and/or the death of Thomas Simmons.

Since from the additional facts it appears the UCC is applicable, the question as to the effective date of the Code is no longer determinative of the action and we now answer the remaining questions.For convenience, we consider Certified QuestionsNos. 1 and 2 together.

I & II

Does Code of Alabama 1975, § 7-2-725 require that all actions based on breach of warranty under Code of Alabama § 7-2-313, § 7-2-314, § 7-2-315and§ 7-2-318 be brought within four years after tender of delivery is made unless the damages are injuries to the person in the case of consumer goods or unless a warranty explicitly extends to future performance of the goods?

Does Code of Alabama 1975, § 7-2-725 require that all actions for personal injury arising out of an alleged breach of warranty under Code of Alabama 1975, § 7-2-313, § 7-2-314, § 7-2-315, and§ 7-2-318 be brought within four years after the discovery of injury or the discovery of facts which would reasonably lead to such discovery?

The statute of limitations for breach of warranty is found in section 7-2-725, which states in pertinent part:

(1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. . . .

(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach.A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered; however, a cause of action for damages for injury to the person in the case of consumer goods shall accrue when the injury occurs.

Ala. Code § 7-2-725(1975).

The Code, then, provides that generally an action for breach of warranty must be brought within four years of tender of delivery.However, there are two exceptions to this general rule, one, where the warranty explicitly extends to future performance of the goods, and the other, where the damages are injury to the person in the case of consumer goods.The question is whether all personal injuries are included within this latter exception from the tender of delivery rule.

The addition of the provision for personal injury in the case of consumer goods to section 7-2-725 is a departure from the standard version of the UCC and is unique among the states adopting the Code.The legislature was specific in creating this exception from the tender of delivery rule, and it clearly applies only to personal injuries in the case of consumer goods.Had the legislature intended all actions for personal injury resulting from breach of warranty to come within the exception, then it would have been a simple matter to omit the phrase "in the case of consumer goods" particularly in light of the language employed in section 7-2-715(2)(b), ¹ which speaks in terms of personal injury only.To go beyond the plain meaning of section 7-2-725 and exclude all actions involving personal injury from the tender of delivery date would result in judicial legislation which we are not prepared to do.

Other jurisdictions, relying on the plain meaning of the statute, have held in actions involving personal injury sustained as a result of breach of warranty that the UCC statute of limitations starts to run at tender of delivery.In Moody v. Sears, Roebuck & Co., 324 F.Supp. 844(S.D.Ga.1971), the plaintiff was injured when an aluminum extension ladder failed in use.The court held that suit for breach of warranty must be commenced within four years of tender of delivery regardless of the aggrieved party's lack of knowledge of the breach.The plaintiff in Hoffman v. A. B. Chance Co., 339 F.Supp. 1385(M.D.Pa.1972), was injured when he fell from an allegedly defective hydraulic aerial platform purchased by his employer to facilitate his work.The court computed the limitation period as beginning from tender of delivery and not from the date of the injury.Accord, Waldron v. Armstrong Rubber Co., 64 Mich.App. 626, 236 N.W.2d 722(1975).

Accordingly, we answer Certified QuestionNo. 1 in the affirmative and No. 2 in the negative.

III

Under the provisions of Code of Alabama 1975, § 6-2-39, must an action for personal injury arising out of an alleged breach of warranty under Code of Alabama 1975, § 7-2-313, § 7-2-314, § 7-2-315, and§ 7-2-318 be brought within one year after the discovery of the injury or the discovery of facts which would reasonably lead to discovery of an injury?

In answering Certified QuestionNo. 3, we note that the parties agree that section 6-2-39 is not applicable.By its terms, this section does not apply to actions for breach of warranty since such actions are ex contractu.The statute provides: "(a) The following must be commenced within one year: . . .(5) Actions for any injury to the person or rights of another Not arising from contract and not specifically enumerated in this section . . . ."Ala. Code § 6-2-39(a)(5)(1975)(emphasis added).This court has held actions for breach of warranty ex contractu, Geohagan v. General Motors Corp., 291 Ala. 167, 279 So.2d 436(1973), and that the one year statute of limitations is not applicable to breach of warranty even when the breach results in personal injury, SeeVines v. Crescent Transit Co., 264 Ala. 114, 85 So.2d 436(1955).Accord, Roberts v. General Dynamics, Convair Corp., 425 F.Supp. 688(S.D.Tex.1977);Anderson v. Fairchild Hiller Corp., 358 F.Supp. 976(D.Alaska1973);Waldron v. Armstrong Rubber Co., supra;Salvador v. I. H. English of Phila., Inc., 224 Pa.Super. 377, 307 A.2d 398(1973), Aff'd sub nom. 457 Pa. 24, 319 A.2d 903(1974).

Furthermore, in Atkins v. American Motors Corp., 335 So.2d 134(Ala.1976), we maintained the distinction between remedy in tort and for breach of warranty.Id. at 139.To apply the one year statute of limitations to breach of warranty actions would help obliterate the distinction between the two theories of recovery.Accordingly, we answer Certified QuestionNo. 3 in the negative and hold that section 7-2-725 contains the appropriate statute of limitations.

IV

Does Code of Alabama 1975, § 7-2-607, require all persons seeking recovery under Code of Alabama 1975, § 7-2-313, § 7-2-314, § 7-2-315and§ 7-2-318 to give notice of an alleged breach of warranty prior to filing a civil action based on either Code of Alabama 1975, § 7-2-313, § 7-2-315, and/or § 7-2-318?

Section 7-2-715 provides for recovery for personal injury as part of the buyer's consequential damages for breach of warranty.The seller's warranty is extended in section 7-2-318 to any natural person who is reasonably expected to use, consume, or be affected by the goods and who is injured in person by the breach.Accordingly, the legislature has eliminated the requirement of privity when the breach causes personal injury and has extended the right to recover for such injuries to the third party beneficiaries of the warranty, I. e., the warranty beneficiaries.

As a precondition to recovery, however, the seller is entitled to notice of his breach at least by the buyer.Section 7-2-607(3)(a) provides: "Where a tender has been accepted: (a) The buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy . . . ."The question arises whether the warranty beneficiary must give notice...