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Malsch v. Bell Helicopter Textron6/17/2005
onsider to be surmise and trust concerning what the California appellate system might do after Malsch and Leyda have expended the resources to brief and argue the case. Of course, if Bell Helicopter prevails, the alternative forum simply will not exist, the Alabama action will have been long since dismissed, and this Court will be powerless to rectify the injustice of that result. I would replace surmise and trust with absolute certainty.
I frankly find it offensive for a party to urge to an Alabama court the existence of an alternative forum, namely California, and yet to refuse to relinquish the defense of the statute of limitations in the California forum. Such acrobatic posturing violates the following equitable principle: "Thou shalt not have it both ways." As the English Court of Exchequer in Cave v. Mills, 7 H. & W. 927, 31 L.J. Ex. 265 (1862), put it: "A man shall not be allowed to blow hot and cold, to claim at one time and deny at another." Whether the California court will be equally offended is a matter over which we have absolutely no authority; the dicta in the main opinion, at best a moral victory for Malsch and Leyda that will be cold comfort if our guess, albeit educated, is wrong, notwithstanding. However, the Legislature in § 6-5- 430 has conferred on an Alabama court authority for precisely the occasion as is here presented. Nevertheless, the main opinion has construed the statute as consistent with a legislative intent that a defendant could show a more appropriate forum exists outside this state even though there is the possibility that an action in the other state might ultimately be barred by that state's statute of limitations.
I consider it consistent with legislative intent to require Bell Helicopter, if it invokes § 6-5-430 and thereby seeks the dismissal of the Alabama action, to eliminate altogether, no matter how slight, Malsch and Leyda's risk of being barred by the statute of limitations in California. I therefore would hold that the trial court exceeded its discretion by failing to require such a waiver before dismissing the action against Bell Helicopter. I must therefore respectfully dissent.
Smith, J., concurs.
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