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Ex parte Chemical Lime of Alabama4/29/2005
PETITION FOR WRIT OF MANDAMUS
Chemical Lime of Alabama, Inc., a defendant in 18 consolidated actions pending in the Tuscaloosa Circuit Court, petitions this Court for a writ of mandamus directing the judge of the Tuscaloosa Circuit Court to grant its motions for a summary judgment. Chemical Lime argues that the plaintiffs failed to exercise due diligence in not substituting Chemical Lime for a fictitiously named defendant in these cases until after the applicable two-year statutory periods of limitations, ยงยง 6-2-38 and 6-5-410, Ala. Code 1975, had expired as to the plaintiffs' claims asserting wrongful death and personal injury .
Facts
On September 23, 2001, two explosions occurred at mine #5, a coal mine owned and operated by Jim Walter Resources, Inc., in Brookwood. Thirteen miners were killed and several miners were injured in the explosions. The injured miners and the administrators of the estates of the 13 deceased miners (hereinafter referred to collectively as "the plaintiffs") sued Jim Walter Resources, Inc., and fictitiously named defendants, alleging breach of implied warranty of merchantability, failure to warn, negligence and wantonness, and claims based on the Alabama Extended Manufacturer's Liability Doctrine.
On April 2, 2004, the plaintiffs moved to amend the complaints to add Chemical Lime as an additional defendant. Chemical Lime manufactures limestone rock dust, which is applied to areas of a coal mine where coal dust can become suspended in the air, in order to neutralize the highly explosive characteristic of floating coal dust. Although Georgia Marble Company, another provider of limestone rock dust to mine #5, was named as a defendant within the two-year limitations period, Chemical Lime was not named as a defendant until almost seven months after the expiration of the two-year limitations period.
Chemical Lime moved to dismiss certain of the claims against it on the ground that the statute of limitations for all claims asserted in the wrongful-death cases, with the exception of the claims of the surviving plaintiffs alleging breach of implied warranty of merchantability, clearly expired on September 23, 2003. The trial court denied Chemical Lime's motion.
Chemical Lime petitions this Court for a writ of mandamus directing the trial court to enter a summary judgment for Chemical Lime on those claims as to which the statute of limitations is two years.
Standard of Review
"' andamus is a drastic and extraordinary writ that will be issued only when there is: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.' Ex parte Horton, 711 So. 2d 979, 983 (Ala. 1998). 'Subject to certain narrow exceptions ..., the denial of a motion to dismiss or a motion for a summary judgment is not reviewable by petition for writ of mandamus.' Ex parte Liberty Nat'l Life Ins. Co., 825 So. 2d 758, 761 (Ala. 2002)(citing Ex parte Jackson, 780 So. 2d 681, 684 (Ala. 2000))."
Ex parte Alloy Wheels Int'l, Ltd., 882 So. 2d 819, 821-22 (Ala. 2003). One of the "narrow exceptions" to the general rule that a ruling on a summary-judgment motion is not reviewable by a petition for a writ of mandamus is the denial of a summary-judgment motion when "the undisputed evidence shows that the plaintiff failed to act with due diligence in identifying the fictitiously named defendant as the party the plaintiff intended to sue." Ex parte Snow, 764 So. 2d 531, 537 (Ala. 1999). In reviewing the grant or denial of a summary-judgment
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