Sunday Enterprises, Inc. v. United Rentals Incorporated
OPINION. Signed by Honorable Judge Myron H. Thompson on 10/14/2011. (cc, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, SOUTHERN DIVISION
SUNDAY ENTERPRISES, INC.,
UNITED RENTALS (NORTH
CIVIL ACTION NO.
In this lawsuit, plaintiff Sunday Enterprises, Inc.
(“SEI”), a swimming-pool construction company, asserts
various fraud, negligence, and product-liability claims
against defendant United Rentals (North America), Inc.
(“United Rentals”), arising out of SEI’s purchase of
surveying equipment from United Rentals.
In addition to
responding with an indemnity counterclaim, United Rentals
removed this case from state to federal court based upon
diversity-of-citizenship jurisdiction, 28 U.S.C. §§ 1332,
This cause is now before the court on United Rentals’
motion for summary judgment in its favor on SEI’s claims.
evidence in the light most favorable to the non-moving
party and drawing all reasonable inferences in their
favor, the court is convinced “that there is no genuine
dispute as to any material fact and the movant is entitled
to judgment as a matter of law.”
Fed. R. Civ. P. 56(a);
Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986).
For the reasons that follow,
In July 2005, the owner of SEI purchased two
brand-new “CST Berger 20X Transit Levels” from United
1. United Rentals also seeks summary judgment in its
favor on its counterclaim.
Whether United Rentals is
entitled to summary judgment on its counterclaim will be
addressed separately and later.
Rentals in Dothan, Alabama.
The sales agreement, which
the owner signed, provides that, “Unless United indicates
otherwise on the front page of this Sales Agreement, the
Equipment is used and was previously rented out by United
to numerous persons”; that, “Whether or not the Equipment
is used, it is being sold by United ‘AS IS’, WITH ALL
FAULTS”; that “United makes no representation or warranty
on any matter whatsoever”; and that “ALL WARRANTIES,
FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY EXCLUDED
Sales Agreement (Doc. No. 35-3, at 3).
The agreement also provides that, “Any oral or other
statements that United’s employees may have made regarding
the Equipment do not constitute warranties, are disclaimed
by United, and shall not be relied upon by the Customer.”
Id. Despite these disclaimers, United Rentals often sends
equipment to manufacturers or other companies for repair
or calibration as a service to customers.
Because the pools that SEI built with the CST Berger
units were out of level, SEI’s owner complained to United
Rentals that the units were either defective or needed to
be re-calibrated, and, in October 2005, he returned the
expensive, levels; one was purchased, and the second one
was bought on store credit from the return of the CST
SEI’s owner signed another sales agreement
identical to the one he had signed before.
During the July and October 2005 purchases, SEI’s
owner spoke with the same Inside Sales Coordinator, Norman
In the first sale, Scott told the owner that the
CST Berger unit was a “good product.”
Scott was also the
one who allowed the owner to return the CST Berger transit
levels and use that money towards the purchase of the
exchange, Scott told SEI’s owner that he was “good to go.”
But, because he was only a salesman, Scott did not have
special expertise in operating transits or levels and
instructions when using them.
Between October 2005 and March 2006, SEI
had no problems building level pools with the levels
purchased at United Rentals.
In March and April of 2006,
however, several swimming pools SEI built using levels
from the October 2005 purchase were out of level.
In total, SEI built 11 un-level pools using equipment
purchased at United Rentals.
Each time a pool was built
contemporaneously with finishing the pool when it was
filled with water.
Upon discovering the defect, he would
demolish and rebuild each pool.
When rebuilding the
pools, he would typically use equipment not purchased at
employment in November 2007.
On December 30, 2008, SEI’s
owner ran into Scott while shopping at a Wal-Mart.
owner asked Scott “questions about the levels or transits
and said that he had lost his pool business.”
(Doc. No. 35-2, at 4). Scott expressed his sympathies and
referring to a laser level that SEI had never purchased or
Id. at 5.
Scott also indicated that near the end
of his tenure at United Rentals he “became uncomfortable
selling certain levels.”
Scott does not recall the
exact date he became “uncomfortable,” but is certain that
this date “was after [his] sales to [SEI]” and swears that
he “never sold [SEI’s owner] a level or transit where [he]
believed there was a problem with the product.”
SEI filed this lawsuit in state court on
December 29, 2010, and United Rentals removed it to
federal court on February 3, 2011.
Invoking Alabama law and relying on the two sales in
July and October of 2005, SEI charges United Rentals with
(1) fraud; (2) deceit; (3) fraudulent misrepresentations;
(4) negligence; and (5) violation of the product-liability
nited Rentals seeks summary judgment
in its favor on all of SEI’s claims, with its primary
defense being that the claims are barred by Alabama’s
statute of limitations. United Rentals also seeks summary
The court agrees that, under Alabama
law, the time for bringing SEI’s claims had expired when
SEI filed its complaint in state court in December 2010.
All of the claims asserted in SEI’s complaint come
with a two-year statute of limitations.
See 1975 Ala.
Code § 6-2-38(l); Spain v. Brown & Williamson Tobacco
Corp., 872 So.2d 101, 112 (Ala. 2003).2
issue here is when that statute of limitations begins to
As a general matter, under Alabama law, where “the act
of which the injury is the natural sequence is itself a
legal injury to the plaintiff, a completed wrong, the
cause of action accrued and the statute begins to run from
the time the act is committed, be the actual damage [then
apparent] however slight.”
McWilliams v. Union Pac. Res.
Co., 569 So.2d 702, 703 (Ala. 1990) (internal quotes and
citations omitted) (bracketed part in original).
fraud-related claims, however,
Alabama law sometimes
permits tolling of the accrual date until a later moment
1975 Ala. Code § 6-2-3.3
provides that, “All actions for any injury to the person
or rights of another not arising from contract and not
specifically enumerated in this section must be brought
within two years.”
3. Section 6-2-3 fo the 1975 Alabama Code provides
that, “In actions seeking relief on the ground of fraud
where the statute has created a bar, the claim must not
be considered as having accrued until the discovery by
the aggrieved party of the fact constituting the fraud,
The parties agree that § 6-2-3's “discovery rule” does
See Russell Petroleum Corp. V. Environ Prods.,
(Thompson, J.); Singer Asset Finance Co., LLC v. Conn.
Gen. Life Ins. Co., 975 So.2d 375, 382 (Ala. Civ. App.
The court therefore addresses these counts first.
Taking the two 2005 purchases together, United Rentals
argues that any legal injury accrued in 2005 and 2006 when
SEI built out-of-level pools with equipment purchased from
United Rentals emphasizes that, in each
instance, both in October 2005 (when SEI, after building
purchased in July 2005) and then again in March and April
of 2006 (when several swimming pools SEI built using
levels from the October 2005 purchase were out of level),
SEI’s owner realized the pools were un-level.
after which he must have two years within which to
prosecute his action.”
United Rentals contends, any possible legal injury or harm
associated with transits and levels was known to SEI in
2005 and 2006 at the time it filled the pools with water,
which was essentially contemporaneous with building the
Because this lawsuit was not filed until December
2010 (from four to five years after the construction of
out-of-level pools), there is no possible way, United
Rentals argues, this lawsuit can come within the two-year
reasonable factfinder would have to agree with United
instances a legal injury might not be immediately apparent
when the “act complained of” occurs and further recognizes
that the plaintiff’s injury may only come “as a result of,
and in furtherance and subsequent development of, the act
defendant has done.”
Ex parte Floyd, 796 So.2d 303, 308
(Ala. 2001) (internal quotes and citations omitted).
such a case, an action accrues when “the first indication
of damage becomes apparent to the claimant.”
Corp. v. Russell, 883 So.2d 1266, 1269 (Ala. Civ. App.
2003); see, e.g., Russell, 333 F. Supp. 2d at 1232-33
developments, like defective pacemakers, radiation, and
This rule pushes the accrual date beyond the
moments United Rentals sold the levels to SEI in July and
October 2005, but, notably, United Rentals does not even
contend that SEI’s claims accrued at the time of sale;
instead, and implicit in United Rentals’ argument, is a
recognition of the fact that the “subsequent development”
that demonstrated a legal injury was the moment that SEI
realized that pools built with equipment from United
Rentals were out of level.
More concretely, a reasonable
factfinder would have to conclude that any legal damage
traceable to United Rentals’ sale of the levels was
readily apparent the moment SEI’s owner saw the un-level
pool water and subsequently demolished and rebuilt the
pool, especially given that he did so with different
Therefore, any injury or legal harm resulting from the
occurred, at the latest, in March or April of 2006 when
SEI used this equipment to build out-of-level pools.
Beyond the dissatisfaction of having a pool built out-oflevel (as SEI makes clear in its claim for damages),
quintessential “legal injury.”
To avoid this conclusion, SEI argues that a later
actions, Alabama recognizes that a “plaintiff’s ignorance
of the tort or injury” can delay the accruing of claims if
there has been “fraudulent concealment by defendant.”
McWilliams, 569 So.2d at 703–04 (internal quotes and
conversation between SEI’s owner and Scott revealed that
“fraudulent concealment” had happened in the 2005 sales.
The court cannot agree.
SEI misses the fact that the
“fraudulent concealment” exception refers to concealing
either that the cause of action exists or trying to hide
the injury itself.
See DGB, LLC v. Hinds, 55 So.3d 218,
224-26 (Ala. 2010). The Wal-Mart meeting does not reflect
that United Rentals concealed either a cause of action or
any injury; indeed, because SEI’s owner knew of any
possible injury from the first sale in 2005 when he
returned the CST Berger units in October of that year and
because he knew of any possible injury from the second,
October 2005 sale when, in March and April of 2006, he
built un-level pools using the levels from that sale, the
Wal-Mart meeting added nothing.
As to the fraud claims, SEI argues that the “discovery
rule” of § 6-2-3 of the Alabama Code should apply. Again,
the Wal-Mart conversation between Scott and SEI’s owner is
the basis for this argument. SEI contends that it did not
learn of United Rentals’ possible misrepresentations,
fraud, or deceit until December 30, 2008, when Scott told
SEI’s owner that he had become “uncomfortable” selling
However, even though Scott was actually
referring to levels he sold not to SEI but others, SEI
contends that this is the moment it “discovered” United
Rentals’ fraud. To be sure, if the statute of limitations
had begun to run on this date, the complaint would have
The court cannot agree that the accrual date should
be set this far removed from the July and October 2005
purchase dates or from the numerous times in 2005 and 2006
when SEI built out-of-level pools with equipment purchased
§ 6-2-3's discovery rule applies here.
In Alabama, the
Foremost Ins. Co. v. Parham, 693 So.2d 409, 421 (Ala.
reasonably to discover fraud.”
Id. at 438 (See, J.,
Thus, a fraud claim accrues “when the
plaintiff discovered the fraud or when the plaintiff
should have discovered the fraud in the exercise of
Id. at 417 (majority opinion).
this standard, “where the undisputed evidence indicates
that the party or parties claiming fraud in a particular
understanding their documents, but nonetheless made a
deliberate decision to ignore written contract terms,” a
court may enter judgment as a matter of law against them.
Id. at 421.
SEI does not maintain that any documents (including
instead, SEI argues that Scott’s July 2005 comments to the
effect that GST Berger levels are “good products” and his
October 2005 statement that SEI’s owner would be “good to
Cf. Ex Parte Seabol, 782 So.2d 212,
216-17 (Ala. 2000) (looking to oral representations in
addition to the words of the relevant documents).
Relying on the reasonable-reliance standard, the court
rejects for two reasons SEI’s invocation of § 6-2-3's
First, the evidence is insufficient to
actionable fraud to be discovered.
The sales agreements
that came with each of SEI’s 2005 purchases expressly
provided that any “oral or other statements that United’s
employees may have made,” Sales Agreement (Doc. Nos. 35-3,
guarantees about the products. Therefore, Scott’s general
statements were contrary to the agreements, could not
constitute fraud, for SEI expressly agreed not to rely on
Psychiatric Servs., P.C. v. 412 South Court Street, LLC,
___ So.3d ___, 2011 WL 4507364, at *6-7 (Ala. Sep. 30,
misrepresentation and the showing required for a claim to
be a “false representation”); Gant v. Azalea City Credit
Union, ___ So.3d ___, 2011 WL 835100, at *2-3 (Ala. Civ.
App. Mar. 11, 2011) (describing the reasonable reliance
standard and a plaintiff’s duty to read, inquire about,
and investigate the documents received in connection with
a particular transaction).
Second, even if one or both of Scott’s statements at
the time of the 2005 sales could support an actionable
agreements, the statements still could not provide a basis
for invoking the discovery rule.
It cannot be overlooked
that SEI’s owner was fully aware of the problems with the
levels when he built out-of-level pools in 2005 and 2006,
especially given that SEI employees fell-back on other,
older level equipment to rebuild the pools.
factfinder would have to conclude that SEI knew, or should
have known, that everything was not as “good” as Scott
boasted in 2005 when, in 2005 and 2006, the equipment SEI
purchased from United Rentals resulted in out-of-level
SEI’s reliance on these statements, assuming any
dissipated with the building of the out-of-level pools.
discovery rule applies here.
Because a reasonable factfinder would have to conclude
that all of SEI’s claims accrued in April 2006 if not
earlier and because this lawsuit was filed over four years
later, SEI’s claims are barred by the applicable the twoyear statute of limitations.
United Rentals is entitled
appropriate judgment will be entered.
DONE, this the 14th day of October, 2011.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?