Cases
Reported Decisions
Johnson v. American Mutual Liability Ins. Co., 368 So. 2d 506 (Ala. 1978)
Represented Clemco Industries against breach of warranty claim related to alleged inhalation of sand during sandblasting operations. Court held that sales occurring prior to enactment of Uniform Commercial Code retained requirement of privity, thus plaintiff’s estate had no claim against Clemco for breach of warranty.
Simmons v. Pulmosan Safety Equipment Corp., 471 F. Supp. 999 (S.D. Ala. 1979)
Represented manufacturer against wrongful death action. Successfully moved to dismiss wrongful death action on grounds that separate breach of warranty action previously filed by decedent before death was still pending, and plaintiff, representative of estate, could not prosecute two actions at the same time for the same cause.
Harville v. Johns-Manville Products Corp., et al., 731 F.2d 775 (11th Cir. 1984)
Represented Owens Corning Fiberglass Corporation against asbestos-related claims brought by local shipyard workers. Successfully opposed application of federal maritime law to plaintiffs’ claims, resulting in dismissal of some claims and application of state law affirmative defenses.
Langley v. Mutual Fire, Marine and Inland Ins. Co., 512 So. 2d 752 (Ala. 1987)
Represented medical malpractice insurance company against claim by physician that he should have coverage for alleged negligent delivery of child. Obtained summary judgment on the grounds that policy was unambiguous and was a “claims-made” policy limiting coverage to those claims made against insured while policy was in force. Defended claims-made policies against public policy arguments.
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Black v. Carey Canada, Inc., et al., 791 F. Supp. 1120 (S.D. Miss. 1990)
Represented Owens-Corning Fiberglass against asbestos claims brought by California residents. Successfully moved to dismiss claims based on lack of personal and subject matter jurisdiction and failure to state a claim under CERCLA.
Calhoun v. Complete Health Care, Inc., 860 F. Supp. 1494 (S.D. Ala. 1994)
Represented pro bono cancer victim seeking injunction against administrator of employee welfare benefits plan. Administrator had denied preadmission certification for coverage for treatment of breast cancer by high dose chemotherapy. Convinced the court to expedite proceedings and order coverage of treatments.
H.E. Monroe, Jr., as Commissioner of the Department of Revenue v. Harco, Inc., et al., 762 So. 2d 828 (Ala. 2000)
Represented Harco, Inc. (Rite Aid) and other large retailers, including CVS Pharmacy, Bruno’s, Delchamps, Sears, Wal-Mart, and K-Mart, in seeking injunction against enforcement of administrative regulation setting limit on sales-tax discount that could be claimed by retailers. Successfully argued at trial level that executive order leading to promulgation of regulation violated the separation-of-powers provisions of section 43 of the Alabama Constitution, although that decision was reversed on appeal.
Frank Crain Auctioneers, Inc. v. Delchamps, 797 So. 2d 470 (Ala. Civ. App. 2000)
Represented real estate auctioneer in an interpleader action. Randy Delchamps sought a broker’s commission on property he purchased at an auction sale, to be paid from the auctioneer’s fee. The Baldwin County Circuit Court ruled in favor of Delchamps, but was reversed on appeal, and the disputed funds were paid to the auctioneer.
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Colonial Bank of Alabama v. Lauren McCaffery, 825 So. 2d 746 (Ala. 2001)
Defended Colonial Bank against class action lawsuit brought by Cunningham, Bounds, Yance, Crowder & Brown, L.L.C. The plaintiff sought to represent a class of customers in six states who were charged NSF fees. The plaintiff argued that the bank should post checks received each day in a way that would minimize the number of returned checks. The trial court certified a breach of contract class, but we persuaded the Alabama Supreme Court to reverse that decision. The plaintiff voluntarily dismissed her individual claims.
James K. Lyons, as Director of the Alabama State Port Authority v. River Road Constr., Inc., 858 So. 2d 257 (Ala. 2003)
Represented Director of Alabama State Port Authority against claims brought by the Baxley, Dillard firm on behalf of dredging contractor that demanded additional compensation for unanticipated work encountered during project. We moved to dismiss the case on grounds of state immunity, but Mobile County Circuit Court Presiding Judge Robert Kendall denied the motion. We obtained permission to appeal, and the Alabama Supreme Court ordered that the case be dismissed.
Lee v. Minute Stop, Inc., 874 So. 2d 505 (Ala. 2003)
Successfully defended convenience store clerk against claim of malicious prosecution. Claim was brought by store customer who was arrested and remained in jail until his preliminary hearing, at which time he was released after a finding of lack of probable cause to arrest him. Obtained summary judgment, which was affirmed on appeal.
Zadnichek v. Fidler, 894 So. 2d 702 (Ala. Civ. App. 2004)
Represented plaintiff in adverse possession case during appeal stage. Successfully argued that easements across client’s property had been terminated by adverse possession. Appeals court ruled in our favor and reversed decision of Baldwin County Circuit Court Presiding Judge.
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Alfa Life Ins. Corp. v. Jackson, 906 So. 2d 143 (Ala. 2005)
Filed amicus curiae brief on behalf of Alabama Association of Life Insurance Companies, in support of Alfa’s application for rehearing. We argued that insurance companies in particular were susceptible to excessive awards for mental anguish, and, for that reason, the courts should apply a one-to-one ratio when determining whether a punitive damage award is constitutional. The issue of damages became moot when the decision was reversed on other grounds.
Perry v. Fleetwood Enterprises, Inc., No. 2:06-cv-502-MEF, 2007 WL 2893410 (M.D. Ala. Sept. 28, 2007)
Represented manufactured housing company against design defect claims. Plaintiff contended that home’s design allowed moisture intrusion and deterioration of walls. Court dismissed plaintiff’s claims based on our argument that the claims were barred by doctrine of implied preemption, given that HUD regulations specifically allowed choice of design for manufactured homes.
Kennedy v. Fleetwood Enterprises, Inc., No. 1:07-cv-728-MEF, 2007 WL 4287374 (M.D. Ala. Dec. 5, 2007)
Successfully opposed motion to remand in a matter of first impression for the Middle District of Alabama. Plaintiff sought declaratory judgment, asking court to appoint an arbitrator. Plaintiff argued remand was proper because there was no monetary value to a declaratory judgment. Court sided with defense argument that the amount in controversy is measured by the underlying claims the plaintiff seeks to arbitrate.
Other decisions
Nationwide v. Jeff W. Phillips, Inc., CV-2006-3785, Mobile County, Alabama.
Obtained complete summary judgment in subrogation action filed by plaintiff’s insurer in tractor-trailer accident alleging wrongful conduct on part of driver and trucking company.
Watson v. Eubanks, CV-2003-1308, Baldwin County, Alabama.
Obtained complete summary judgment in action filed by plaintiff for wrongful death and liability under dram shop statute against defendant that owned premises where driver of vehicle allegedly consumed alcohol and drugs.
Woolsey v. Pryor, CV- 2005-317, Mobile County, Alabama.
Obtained complete summary judgment for client in action where water pipe leaked and flooded the plaintiff’s apartment.
Jones v. Smith, CV-2005-1685, Mobile County, Alabama.
Obtained complete summary judgment for client in a trip and fall case where plaintiff fell and suffered severe injury by stepping in a hole on defendant’s premises.
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Ledbetter v. Farias, CV-2005-1092, Baldwin County, Alabama.
Obtained complete summary judgment in fraud action filed by plaintiff alleging that monetary funds were misappropriated by Defendant.
Marsenburg-Brown v. Diamond Express, CV-2004-1277, Escambia County, Florida.
Obtained partial summary judgment in case involving tractor trailer-accident on all issues relating to negligent maintenance. This prevented the plaintiff from presenting any issues to the jury beyond the alleged actions of the driver, instead of permitting testimony on Department of Transportation violations relating to repairs, record keeping, and other issues.
Marshall v. Tobacco Discount Stores, Inc., CV-2004-541, Mobile County, Alabama.
Obtained partial summary judgment on all claims for punitive damages in action against store for gross negligence. Plaintiff alleged that store consciously observed rainwater accumulate inside store entrance without taking any action to prevent a patron from slipping. Summary judgment effectively limited plaintiff to compensatory damages and greatly reduced likely jury verdict.
Ginn v. Fleetwood Motor Homes of Pennsylvania, Inc., CV-2005-4219, Mobile County, Alabama.
Obtained partial summary judgment in products liability and warranty action where plaintiff claimed damages under multiple theories of liability against manufacturer of recreational vehicle. Summary judgment disposed all theories of liability except breach of express warranty, which only allowed for minimal recovery by the plaintiff and saved the defendant substantial resources.
The Alabama Bar requires the following statement: Results obtained in prior cases do not indicate future results in other cases. Every case is different and must be evaluated on its own facts and circumstances as they apply to the law. Success in a case depends on the facts, the damages, the jurisdiction, the venue, the witnesses, the parties, and the testimony, among other factors. Furthermore, no representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.
