IN THE UNITED STATES DISTRICT COURT FOR THE 

MIDDLE DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

 

NICHOLAS STRICKLAND, et al., * 

 * 

 Plaintiffs, * 

 * 

v. * Case Number: 1:06-CV-00682-TFM 

 * 

CHAMPION HOME BUILDERS CO., 

INC., et al., 

*

* 

 

 * 

 Defendants. * 

MEMORANDUM OF LAW 

IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

COMES NOW the Defendant, Champion Home Builders Co. (“CHB”), the remaining 

defendant in the above-styled action, by and through counsel of record, and pursuant to Rule 56 

of the Federal Rules of Civil Procedure, submits the following Memorandum of Law in Support 

of its Motion for Summary Judgment, and states as follows: 

1. In support of its motion CHB is submitting herewith excerpts from both volume 

one and two of the deposition of Robert Parks, (hereinafter referred to as “Parks”) which is 

attached hereto as “Exhibit A” and made a part hereof by reference. 

2. CHB is also submitting excerpts from the deposition of the Stricklands, which is 

attached hereto as “Exhibit B” and made a part hereof by reference. [Because the Stricklands are 

both hearing impaired their depositions were taken simultaneously with the aid of an interpreter, 

Ms. Becky Hunt, and are recorded together in this one transcript.] 

3. CHB is also submitting a copy of the Manufacturers Limited Warranty (herein 

after refered to as “Limited Warranty”) for the Stricklands’ home which is found on pages 4 

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2

through 6 of their Homeowner’s Manual, which is attached hereto as “Exhibit C” and made a 

part hereof by reference. 

I. INTRODUCTION 

This is a manufactured housing case where the plaintiffs, Nicholas and Jennifer 

Strickland (collectively referred to herein as “the Stricklands”), claim that their home is defective 

because CHB constructed the home with an internal vapor barrier consisting of vinyl coated 

wallpaper. The Stricklands contend that CHB should not have utilized an internal vapor barrier 

in his home even though the federal building code has expressly permitted this design since 

1975. 24 C.F.R. § 3280.504(b)(1). For the reasons discussed below, this Court should grant 

CHB final summary judgment. 

II. NARRATIVE STATEMENT OF UNDISPUTED FACTS 

In March of 2003 the Stricklands purchased the relevant home from an independent 

dealer, not CHB. (Exhibit B, pp. 40:20 – 41:23; 97:14 – 21). The Stricklands understood that 

CHB built the home. Id. They also understood that the representatives of the dealer were not 

employees of CHB. Id. The Stricklands had no dealings with CHB before their purchase of the 

home. Id. Though their claims in this case are based entirely on alleged condensation in the 

walls, the Stricklands have never seen any mold or soft walls in their home. (Exhibit B, pp. 161:9 

– 15; 162:13 – 19). 

The Stricklands filed this action on June 26, 2006. (Complaint).1

 The Stricklands allege 

the following ten claims : (1) violation of the Magnuson Moss Act, 15 U.S.C. 2301 et seq.; (2) 

breach of express warranty; (3) breach of the implied warranty of merchantability; (4) breach of 

 

1

 The Stricklands filed his Complaint in the Circuit Court for Mobile County, Alabama. CHB 

removed this action to the United States District Court for the Southern District of Alabama on 

July 21, 2006. The Stricklands’ Complaint was attached to CHB’s Notice of Removal at Exhibit 

A. 

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the implied warranty of fitness for a particular purpose; (5) breach of the implied warranty of 

habitability; (6) negligence; (7) wantonness; (8) unjust enrichment; (9) fraudulent concealment; 

and (10) violation of Alabama’s Extended Manufacturer’s Liability Doctrine. (Complaint, pp. 7-

14, ¶¶ 23 – 68) 

The Stricklands contend that their home is defective because CHB constructed the walls 

of their home with an internal vapor barrier (vinyl-coated wallpaper).2 However, one of the 

Stricklands’ expert witnesses, Bobby Parks, testified that it is permissible for a manufacturer to 

build walls pursuant to 24 C.F.R. § 3280.504(b)(1). (Exhibit A, vol. 1, p. 71:8 – 72:12). It is 

undisputed that the walls complained of in the Stricklands’ home are built to this standard. Parks 

is also actively lobbying the Consensus Committee for HUD3

 to abrogate the use of internal 

vapor barriers through a change in the regulations. Id.

4

 

The Stricklands received an express Limited Warranty from CHB in connection with 

their home. (Complaint, p.7, ¶ 18; Exhibit B, pp. 16:21 – 18:2). The Warranty is limited, and it 

does not warrant “deterioration or damage from high relative humidity, condensation...” 

(Exhibit C, p. 4). The Stricklands contend that the walls of their home are damaged from 

condensation, due to the location of the vapor barrier. (Exhibit B, p. 162:3 – 12; Complaint, p. 3, 

¶¶ 8, 13, 15). The Limited Warranty also waived all implied warranties to the extent permitted 

by law. (Exhibit C, p.5). 

The Stricklands do not claim any personal injury in this case. When questioned on the 

subject, the Stricklands’ attorney interjected a stipulation that his clients would not be making 

 

2

 Walls with internal vapor barriers are governed by 24 C.F.R. § 3280.504(b)(1). 

3

 Federal statutory law creates a standing Consensus Committee, which must approve of 

proposed changes to the HUD Code before the Secretary of HUD publishes a proposed rule in 

the Federal Register. 42 U.S.C. § 5403(a)(4)-(6). 

4

 The weakness of the Stricklands’ position is obvious: if CHB is liable for following the law, 

then why is Parks trying to change the law? The question answers itself. 

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any personal injury claims related to mold, nor would there be any medical expert testimony on 

this issue. (Exhibit B, pp. 165:13 – 166:15). 

 The Stricklands urge a claim for breach of the implied warranty of habitability. 

However, when questioned, they testified that their family continues to live in the home without 

injury. (Exhibit B, pp. 26:12 – 19; 165:13 – 166:15). 

 The Stricklands claim that CHB breached the implied warranty of fitness for a particular 

purpose. The evidence establishes that the Stricklands never spoke to anyone at CHB before 

they purchased the home. (Exhibit B, pp. 40:20 – 41:23; 97:14 – 21). The home was not 

specially ordered, it was purchased from an existing floor plan with only minor alterations. 

(Exhibit B, pp. 38:5 – 41:23). The Stricklands saw the home at an independent manufactured 

home lot and decided to buy it after they were given the opportunity to inspect a lot model. 

(Exhibit B, pp. 36:8 – 37:16). Thus, there is no evidence that the Stricklands’ purchasing 

decision was influenced by anyone working for CHB. The Stricklands filed one count of 

fraudulent concealment. (Complaint, p. 13, ¶¶ 57-62). As the Stricklands have had no pre-sale 

contact with CHB it will be impossible for them to present evidence that CHB defrauded them or 

suppressed material facts. (Exhibit B, pp. 40:20 – 41:23; 97:14 – 21). 

ARGUMENT 

A. SUMMARY JUDGMENT STANDARD 

“Summary judgment procedure is properly regarded not as a disfavored procedural 

shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed ‘to 

secure the just, speedy, and inexpensive determination of every action.’” Celotex Corp. v. 

Catrett, 477 U.S. 317, 327 (1986) (quoting Federal Rule of Civil Procedure 1). Summary 

judgment is proper under Federal Rule of Civil Procedure 56(c) where the movant shows that 

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there is no genuine issue of material fact and that, based upon the undisputed facts, it is entitled 

to judgment as a matter of law. Early v. Champion International Corp., 907 F.2d 1077, 1080 

(11th Cir. 1990). For a question of fact to be genuine, the party opposing summary judgment 

“must do more than simply show that there is some metaphysical doubt as to the material facts.” 

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). Instead, the 

evidence must be of such quality that “a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “If the evidence is 

merely colorable, or is not significantly probative, summary judgment may be granted. Id. at 

249-50; see also Early, 907 F.2d at 1080. 

In considering a motion for summary judgment, the trial court must consider the evidence 

in the light most favorable to the non-movant. Early, 907 F.2d 1080. However, the court is 

required to resolve only reasonable doubts in the non-movant’s favor; it is not required to 

resolve all doubts in his favor. Irby v. Bittick, 44 F.3d 949, 953 (11th Cir. 1995); Barnes v. 

Southwest Forest Industries, Inc., 814 F.2d 607, 609 (11th Cir. 1987). “A court is not obligated 

to find that there is no conflict in the evidence; the court must merely find that there is not 

substantial evidence opposed to the moving party’s position.” Jones v. Miles Laboratories, Inc., 

887 F.2d 1576, 1578 (11th Cir. 1989) (emphasis in original). 

A movant is entitled to summary judgment where “the nonmoving party has failed to 

make a sufficient showing on an essential element of her case with respect to which she has the 

burden of proof.” Celotex, 477 U.S. at 232. Where a movant has properly supported a motion 

for summary judgment, the burden shifts to the non-movant to demonstrate a genuine issue of 

material fact necessitating a trial. Id. The substantive law governing the plaintiff’s claim 

determines which facts are material and which are irrelevant. Anderson, 477 U.S. at 248. 

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CHB IS ENTITLED TO SUMMARY JUDGMENT BECAUSE THE 

STRICKLANDS’ CLAIMS ARE BARRED BY THE PREEMPTION DOCTRINE 

The Stricklands’ claims are preempted by the federal building code (referred to hereafter 

as the “HUD Code”).5

 The manufactured housing industry is a highly regulated industry. Those 

regulations found within the HUD Code create tight confines within which manufacturers must 

function. The regulations dictate with specificity how, among other things, wall structures must 

be built. The HUD Code is continually under review. The wall design options under the HUD 

Code have been thoroughly tested and proven to be effective. Because of this stringent approval 

process HUD in effect guarantees the design options under the HUD Code and creates a 

presumption that any design not approved under the code is inferior. 

Importantly, since the filing of this case, this court decided an identical on-point case 

holding that the plaintiff’s claims are impliedly preempted.6 In Murphy v. Southern Energy 

Homes, Inc., Case No. 2:06-cv-618-MEF the court issued a Memorandum Opinion and Order 

dismissing the plaintiff’s claims with prejudice. (The court’s order is attached hereto as “Exhibit 

D” and made a part hereof by reference). CHB urges this court to apply the holding of Murphy 

to the instant case and grant a summary judgment in CHB’s favor. 

In Murphy the court noted, “Plaintiff’s claims are based on Defendant’s construction of 

the exterior walls of Plaintiff’s home with interior vapor barriers, which is expressly permitted 

 

5

 Manufacturers are required to comply with the Federal Manufactured Home Construction and Safety Standards 

promulgated by the U.S. Department of Housing and Urban Development (“HUD”). The National Manufactured 

Housing Construction and Safety Standards Act, 42 U.S.C. § 5401, et seq. (MHCSS), which was passed and signed 

into law in August 1974, required the Secretary of HUD to establish Federal manufactured home construction and 

safety standards and to issue regulations to carry out the purpose of the MHCSS Act. The standards for the 

construction of and safety issues concerning manufactured homes are contained in the Code of Federal Regulations, 

Title 24, Federal Manufactured Home Construction and Safety Standards. 24 CFR § 3280, et seq. In addition, there 

are many regulations concerning the construction and safety of manufactured homes, which appear in the Code of 

Federal Regulations Title 24, Manufactured Home Procedural and Enforcement Regulations. 24 CFR § 3282, et 

seq. These two sections of Title 24 are commonly referred to in the manufactured housing industry as the “HUD 

Code.” The standards promulgated pursuant to the MHCSS Act apply to all manufactured homes manufactured for 

sale to purchasers in the United States on or after the effective date of the standards, which was June 15, 1976. 6

 The same attorneys that represented Murphy also represent the Stricklands. The original complaint in Murphy is 

nearly identical to the complaint pled in this case. 

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under the HUD Code.” (Exhibit D, p. 4). The court unequivocally stated: “Plaintiff’s claims are 

due to be dismissed because of conflict preemption.” (Exhibit D, p. 3). Further, the court went 

on to adopt the findings in both Perry v. Fleetwood Enterprises, Inc., 2007 WL 2893410 (M.D. 

Ala. Sept. 28, 2008) and Guidroz v. Champion Enters. Inc., No. 05-1148 (W.D. La. January 26, 

2007), stating: “The Court agrees and concludes that Plaintiff may not penalize Defendant for 

choosing an option permitted by § 3280.504(b).” (Exhibit D, p. 4). 

The Court stated in Perry: 

“Plaintiff argues, looking both to case law and the structure of the regulations 

themselves, that the regulations at issue set forth are performance-based. In other 

words, the manufacturer is given several options to meet a performance-based 

requirement. Therefore, Plaintiff argues, the regulations set forth minimum 

standards. The Court disagrees.” “Plaintiff’s state law claims are DISMISSED 

with prejudice to the extent that those claims seek to penalize Defendants for their 

choice of an option available under 24 C.F.R. § 3280.504(b).” 

Perry v. Fleetwood Enterprises, Inc., No. 2:06-cv-502-MEF (WO), 2007 U.S. Dist. LEXIS 

73355 (M.D. Ala. Sept. 28, 2007) attached hereto as “Exhibit E” and made a part hereof by 

reference. 

It bears mentioning again that HUD itself has already rejected the Stricklands’ position 

that manufactured home walls constructed with internal vapor barriers are somehow improper or 

defective. The Stricklands have argued through their expert that Section 3280.303(b) of the 

HUD Code, which is a general provision of the Code, somehow overcomes and invalidates 

Section 3280.504(b)(1), which is a specific code section applicable to wall design. (Exhibit A, 

vol. 1, pp. 71:8- 72:12).7

 HUD, through William W. Matchneer III, HUD’s Associate Deputy 

 

7

 Even if this argument is a viable one, it is not within the province of the jury to determine whether the 

requirements of a code have been met based on a witnesses’ opinion, as such determinations must be made by the 

trial court. See Williams v. State of Florida Dept. of Trans., 579 So.2d 226, 230 (Fla. 1991) overruled on other 

grounds (trial court was required to determine the legal requirements of the code and give appropriate instructions to 

the jury); Seibert v. Bayport Beach and Tennis Club Association, Inc., 573 So.2d 889, 891-2 (Fla. 2d DCA 1990) 

(An expert should not be allowed to testify concerning questions of law, and the interpretation of the building code 

presented a question of law); Perry v. Medeioros, 369 Mass. 836, 343 N.E.2d 859 (Mass. 1976) (finding trial court 

properly ruled that the building inspector was properly precluded from giving the jury his opinion interpreting the 

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Assistant Secretary for Regulatory Affairs and Manufactured Housing (the HUD official 

responsible for the enforcement of the Manufactured Home Construction and Safety Standards) 

expressly rejected such a theory in his letter of January 19, 2007, which states as follows: 

As the HUD official responsible for the enforcement of the 

Manufactured Home Construction and Safety Standards, I can say 

that these pleadings consistently misrepresent HUD enforcement 

policy by arguing that HUD’s general standard at 3280.303(b) 

should be applied to manufacturers’ practices regarding the 

placement of vapor barriers even though these manufacturers have 

complied with HUD’s more specific vapor barrier standard at 

3280.504(b). 

 Consistent with basic principles of administrative law, it is 

HUD’s practice to hold manufacturers accountable for compliance 

with the standard that most specifically applies to a particular 

aspect of construction. Accordingly, there is no case in which 

HUD has applied 3280.303(b) to a manufacturer that has complied 

with 3280.504(b). 

 Thank you again for bringing this situation to our attention. 

HUD has a distinct interest in maintaining an accurate 

understanding by arbitrators and the courts of HUD’s enforcement 

policies and practices regarding the Manufactured Home 

Construction and Safety Standards. We would be especially 

concerned by a reported judicial decision that misstated HUD 

policy and practice, so please keep us advised of developments in 

these cases. 

(opinion letter from William W. Matchneer III, HUD’s Associate Deputy Assistant Secretary for 

Regulatory Affairs and Manufactured Housing (the HUD official responsible for the 

enforcement of the Manufactured Home Construction and Safety Standards) dated January 19, 

2007 attached hereto as “Exhibit F” and made a part hereof by reference).8

 code and the effect thereof on facts to be found by the jury); citing S. D. Shaw & Sons, Inc. v. Joseph Rugo, Inc., 

343 Mass. 635, 639, 180 N.E.2d 446 (1962); Killam v. Standard Oil Co. of N.Y., 248 Mass. 575, 582, 143 N.E. 698 

(1924); Campbell v. Leach, 352 Mass. 367, 373, 225 N.E. 594 (1967); Edward J. Siebert, AIA, v. Bayport Beach and 

Tennis Club, 573 So.2d 889 (Fla. 1990) (permitting experts to testify regarding their opinions on how building code 

fire exit requirements should be interpreted was erroneous, as interpretation of building code presented question of 

law; it was duty of trial court to interpret meaning of building code fire exit requirements). 

8

 CHB wishes to bring to the attention of the Court that in a separate Memorandum Opinion and Order (Doc. No. 

75) in Murphy, the letter was stricken as it was determined that it did not satisfy one of the hearsay exceptions in 

Rule 803(8). 

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Thus, because HUD has already answered the question currently before the Court, the 

Court should accord broad deference to HUD’s interpretation of its own regulation and refuse to 

revisit this question. See Barnharrt v. Walton, 535 U.S. 212, 221-22 (2002) (holding that 

deference should be afforded to agency’s interpretation of its own rules even when the 

interpretation did not emerge from formal rulemaking); United States v. Mead Corp., 533 U.S. 

218, 229-234 (2001) (same); Heimmermann v. First Union Mortg. Corp., 305 F.3d 1257, 1261-

62 (11th Cir. 2002) (noting that deference should be afforded to HUD interpretations although 

such interpretations did not emerge out of an official rule-making process); Price v. Countrywide 

Home Loans, Inc., CV205-15, 2005 WL 2354348 at *7-*8 (S.D. Ga. 2005) (explaining that 

informal HUD interpretation of rule was to be accorded deference pursuant to binding Eleventh 

Circuit and Supreme Court precedent, as well as HUD’s expertise in regulating the subject of the 

case at issue). Feliciano v. Romney, 363 F. Supp. 656, 674 (S.D.N.Y. 1974) (noting that “[c]ourts 

are limited to reviewing the efforts of HUD in carrying out its statutory responsibilities.”)9

Essentially, by arguing that liability can be imposed upon CHB under 24 C.F.R. 

§3280.303(b) notwithstanding CHB’s strict compliance with the specific provisions of 24 C.F.R. 

§ 3280.504(b)(1), the Stricklands are really arguing that 24 C.F.R. § 3280.504(b)(1) is irrational 

to the extent it allows for internal vapor barriers contained in the exterior walls of manufactured 

homes in “humid and fringe zone climates.” In so doing, the Stricklands would have this Court 

modify the HUD Code retroactively based simply upon the Stricklands’ opinion of what the 

 

9

 The fact that the Stricklands’ expert, Parks, admitted that the design used by CHB is compliant 

with Section 3280.504(b)(1), really ends the inquiry in the case. Parks testified that it is 

permissible for a manufacturer to build walls pursuant to 24 C.F.R. § 3280.504(b)(1). (Exhibit A 

vol. 1, pp. 71:8 – 72:12). Recognizing that his design theory is fatally flawed, Parks is actively 

lobbying the Consensus Committee for HUD to abrogate the use of internal vapor barriers 

through a change in the regulations. (Deposition of Bobby Parks in Ford v. CHB, vol. 1, pp. 

8:20-9:2) Respectfully, CHB should not be held liable for a design choice that might be changed 

at some unknown time in the future. 

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HUD Code should say, and hold that millions of previously-conforming manufactured homes are 

now subject to wide recall or further liability, which respectfully speaking, is a ridiculous 

position. 

 Indeed, HUD has actively regulated the issues at hand since 1975. 58 F.R. 54975 (Oct. 

25, 1993); 67 F.R. 20400 (Apr. 24, 2002); 69 F.R. 70016 (Dec. 1, 2004); 70 F.R. 72024 (Nov. 

30, 2005). Since the inception of the HUD Code, HUD has expressly permitted the use of 

interior vapor barriers in homes throughout the country. It is within the sole discretion of HUD 

to decide whether to limit a regulation in terms of geographical application. Most recently, in 

2006 HUD amended 24 C.F.R. § 3280.504(b) to permit the use of external vapor barriers in 

some homes.10 This amendment limited the use of such external vapor barriers to certain areas 

within the Gulf region, but did not eliminate or geographically limit any other wallboard design 

set forth in 24 C.F.R. § 3280.504(b). If HUD thought it best to limit the use of internal vapor 

barriers pursuant to 24 C.F.R. § 3280.504(b)(1) to certain geographical regions, HUD would 

have done so. However, HUD made a conscious choice to refrain from limiting 24 C.F.R. § 

3280.504(b)(1) in the manner that the Stricklands seek. Thus, the Stricklands’ argument here 

amounts to nothing more than a complaint as to HUD’s wisdom in making determinations 

regarding the substance of the applicable HUD Code provisions. Because HUD is the entity 

charged with the duty to promulgate and review its regulations, this Court should refuse to 

entertain such a complaint and defer to HUD’s discretion in fulfilling its Congressional mandate. 

See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) 

(noting that “[w]hen a challenge to an agency construction of a statutory provision . . . really 

centers on the wisdom of the agency’s policy . . . the challenge must fail. In such a case, federal 

 

10 It should be noted that this amendment does not apply here because the Plaintiff’s home was 

manufactured in January 2006, before the amendment went into effect. 

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judges – who have no constituency – have a duty to respect legitimate policy choices made by 

those who do. The responsibilities for assessing the wisdom of such policy choices . . . are not 

judicial ones.”).11

 Based on the forgoing CHB is entitled to a final summary judgment in its favor on all 

claims. The court need not read any further as the plaintiff’s claims are preempted. However, 

CHB has provided further appropriate arguments warranting final summary judgment in its 

behalf on each of the plaintiffs’ claims. 

B. CHB IS ENTITLED TO SUMMARY JUDGMENT ON THE 

STRICKLANDS’ FRAUD CLAIMS 

In Count Nine of the complaint, the Stricklands allege a claim for fraudulent 

concealment. (Complaint, pp.13-14, ¶¶ 57 – 62). 

It is respectfully submitted that the two (2) year statute of limitations for fraud claims 

expired prior to the filing of the lawsuit. See § 6-2-38(l), Code of Alabama, (1975); Foremost 

 

11 In the event this Court has any doubts about the strength of CHB’s position with respect to the 

issue of whether Section 3280.504(b)(1) should not be overcome by the tortured application of 

Section 3280.303(b) (as the Stricklands contend), it should nevertheless dismiss the Stricklands’ 

claims based on the doctrine of primary jurisdiction. The common-law doctrine of primary 

jurisdiction “comes into play when a claim . . . calls for resolution of issues which, ‘under a 

regulatory scheme, have been placed within the special competence of an administrative body.’” 

Sprint Corp. v. Evans, 846 F. Supp. 1497, 1505 (M.D. Ala. 1994) (Thompson, J.) (quoting 

United States v. Western Pacific R.R. Co., 352 U.S. 59, 64 (1956)). The doctrine applies, 

especially as here, when “protection of the integrity of a regulatory scheme dictates preliminary 

resort to the agency which administers the scheme.” United States v. Philadelphia Nat’l Bank, 

374 U.S. 321 (1963). Ricci v. Chicago Mercantile Exch., 409 U.S. 289, 299-300 (1973) (noting 

that primary jurisdiction applies when conduct that is subject to court litigation “is . . . at least 

arguably protected or prohibited by . . . [a] regulatory statute . . .”); Alabama Assoc. of Home 

Health Agencies v. ABC Home Health & Hospice of Ala., Inc., 601 So. 2d 1027, 1030-31 (Ala. 

1992) (“while the trial court may have technically had jurisdiction . . . it should have deferred, at 

the outset to . . . the agency which, by law, administers the . . . program [at issue]”); Fraternal 

Order of Police, Strawberry Lodge #40 v. Entrekin, 314 So. 2d 663, 670 (Ala. 1975) (“the 

doctrine of primary jurisdiction implies that matters entrusted by the legislature to an 

administrative agency, ought to first be considered by that agency”). The doctrine counsels a 

court to dismiss or stay a matter “pending referral of such issues to the administrative body for 

its views.” United States v. Western Pacific Railroad Co., 352 U.S. 59, 63-64 (1956). 

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Insurance Co. v. Parham, 693 So.2d 409, 417 (Ala.1997). Even if the statute of limitations had 

not expired, Alabama fraud law is codified at Alabama Code Sections 6-5-100 through 104. A 

claim for concealment or suppression is governed by Section 6-5-102. It provides that 

“[s]uppression of a material fact which the party is under an obligation to communicate 

constitutes fraud. The obligation to communicate may arise from the confidential relations of the 

parties or from the particular circumstances of the case.” Ala. Code § 6-5-102 (Repl. Vol. 2005). 

To prove a prima facie case of fraudulent suppression under Alabama law, a plaintiff must show 

that (1) the defendant had a duty to disclose an existing, material fact; (2) that the defendant had 

actual knowledge of the fact and its materiality; (3) that the defendant suppressed that fact; (4) 

that plaintiff’s lack of knowledge concerning that fact induced him to act; and (5) that the 

plaintiff suffered actual damage as a proximate result of acting. Perry v. Household Retail 

Services, Inc., 953 F. Supp 1365, 1368 (M.D. Ala. 1996). 

The duty to disclose rarely arises in arm’s length transactions because “when both parties 

to a transaction are intelligent and fully capable of taking care of themselves and are dealing at 

arm’s length and when there are no confidential relations between them, one of them owes no 

duty to disclose a material fact to the other without a request, and mere silence concerning such a 

fact is not fraud; there must be active concealment or misrepresentation. DeWitt v. Long, 519 So. 

2d 1363, 1366 (Ala. Civ. App. 1987). Mere silence does not constitute fraud; there is no duty to 

disclose facts when information is not requested. Hardy v. Blue Cross & Blue Shield, 585 So. 2d 

29, 32 (Ala. 1991). In a purchase and sale transaction, a duty to disclose typically exists only 

where there is a fiduciary relationship among the parties, or if a purchaser specifically inquires 

about a material condition concerning the property purchased. Cato v. Lowder Realty Co., 630 

So. 2d 378, 382 (Ala. 1993). The existence of a duty to disclose is a question of law to be 

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determined by the trial judge, not a question of fact for the jury. State Farm Fire and Cas. Co. v. 

Owen, 729 So. 2d 834, 837-841 (Ala. 1998). 

The Stricklands’ suppression claims fail because CHB does not owe the Stricklands any 

legal duty to disclose any facts. There is no evidence of any direct transaction between the 

Stricklands and CHB, as the Stricklands purchased his home from an independent manufactured 

home lot after inspecting a lot model. (Exhibit B, pp. 36:8 – 37:16). Furthermore, there is no 

evidence of any confidential relationship between the Stricklands and CHB. Therefore, CHB 

could not have participated in any fraud. There was no contact by and between the Stricklands 

and CHB by which a duty to disclose could have arose. Since there was no direct contact 

between the Stricklands and CHB before the sale of the Manufactured Home, no duty can be 

established to support any fraud claim. 

 The only representations regarding the Manufactured Home, for which the Stricklands 

could claim fraud, would be contained in the Limited Warranty delivered in connection with the 

sale of the Manufactured Home. (Exhibit C, pp. 4 – 6). However, the language contained in the 

Limited Warranty does not amount to an actionable representation that the Manufactured Home 

was “free from defects”. See Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala. 1997); 

Rhodes v. General Motors Corp., 621 So.2d 945 (Ala.1993); Tittle v. Steel City Oldsmobile 

GMC Truck, Inc., 544 So.2d 883 (Ala.1989). In the Crawford case, it was alleged that the 

manufacturer expressly warranted that the home was “free from defects in material and 

workmanship” and that the manufactured home was “constructed in compliance with the federal 

guidelines”. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d at 9-10. The Supreme Court of 

Alabama, relying on previous holdings, found that the language of an express warranty to repair 

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14

cannot be construed as a representation that a product is entirely free of defects. Palm Harbor 

Homes, Inc. v. Crawford, 689 So.2d at 10-11. 

In Rhodes v. General Motors Corp., 621 So.2d 945, 948 (Ala.1993), the Supreme Court 

held that language in a warranty stating that the “warranty covers repairs to correct any defect in 

material or workmanship of the vehicle” cannot be construed as a representation that the car was 

and would remain free of defects. In Tittle v. Steel City Oldsmobile GMC Truck, Inc., 544 So.2d 

883 (Ala.1989), the Supreme Court reviewed language in a warranty that stated: “This warranty 

covers any repairs and needed adjustments to correct defects in material or workmanship.” 

Tittle, 544 So.2d at 891. The Supreme Court determined that rather than guaranteeing the car to 

be free of defects, the warranty actually anticipated that defects would arise and provided for 

remedying such defects. Id. 

It is anticipated the Stricklands will claim that the alleged problems set forth in their 

Background Facts support their fraudulent concealment theory. However, the Background Facts 

failed to provide any admissible evidence in support of the generalized statements. Even if it can 

be proven that there was some sort of recurring defect, such a fraud claim is not actionable. The 

Supreme Court of Alabama has reviewed similar claims in several cases and held there is no duty 

to disclose recurring defects in a line of products to a buyer. When the parties to a transaction 

deal with each other at arm’s length, with no confidential relationship, no obligation to disclose 

information arises when the information is not requested. Mason v. Chrysler Corporation, 653 

So.2d 951, 954-955 (Ala. 1995), citing Bama Budweiser of Montgomery, Inc. v. Anheuser-Busch 

Inc., 611 So.2d 238 (Ala.1992); Norman v. Amoco Oil Co., 558 So.2d 903 (Ala.1990); see

Ala.Code 1975, § 6-5-102. 

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In Mason, the Masons’ contacts with Chrysler Corporation consisted primarily of their 

viewing national advertisements before they purchased the vehicle and their presenting the 

vehicle for repair. Neither the Masons’ depositions nor their affidavits in opposition to the 

summary judgment motion contained any evidence indicating that they inquired of Chrysler 

Corporation or Royal Motor Company regarding whether problems similar to theirs had occurred 

in other automobiles. Mason v. Chrysler Corporation, 653 So.2d at 955. 

The Supreme Court of Alabama in Mason held as follows: 

Although the Masons took their car in for repairs on several occasions, that fact 

standing alone--bringing a car in for repairs--does not establish any special 

relationship between the dealer and the purchaser that would require the dealer to 

disclose to the purchaser that the car may require additional repairs. The Masons 

complain that they were assured by the salesman and by Chrysler Corporation’ 

promotional material that the car they bought would give a smooth ride, like that 

of a Cadillac, and that the warranty Chrysler Corporation offered was one of the 

best. They contend that these statements were false and that the dealer knew they 

were false. The statements may have been false, but they were not statements of 

material fact that a buyer could be expected to rely on. 

Under the express provisions of its warranty, Chrysler Corporation would be 

responsible for repairing the car, but the plaintiffs produced no evidence that will 

support a fraud action based either on statements made at the time of the sale or 

on the defendants’ failure, when the car was brought in for repairs under the 

warranty, to disclose that the problems with the car might recur. Because the 

plaintiffs failed to establish the necessary facts to support their fraud claim, the 

trial court correctly entered the summary judgment as to this claim. The extent 

and the nature of the harm the Masons claim in this case are substantially similar 

to those of the harm claimed in McGowan, supra. As we noted in McGowan: 

“Even if there was substantial evidence that [the dealer] 

knew of the problems with the Fifth Avenue line, the 

record does not contain substantial evidence to support the 

inference that [it] actively or knowingly concealed these 

problems with an intent to deceive McGowan. Likewise, 

even if there was substantial evidence that Chrysler knew 

of the problems with its Fifth Avenue cars, McGowan 

produced no evidence of a confidential relationship or of 

any special circumstances between him and Chrysler, nor 

did he present substantial evidence that Chrysler knowingly 

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16

or actively concealed from him its knowledge of the 

problems with the Fifth Avenue line.” 

 

 631 So.2d at 847-48. The summary judgment is also affirmed as to the 

fraudulent suppression claim. 

Mason v. Chrysler Corporation, 653 So.2d at 955. 

This position has steadfastly been followed by the Supreme Court of Alabama. See e.g, 

Freighliner, LLC v. Whatley Contract Carriers, LLC, 932 So. 2d 883, 892 (Ala. 2005) (with 

arm’s length transaction and no specific inquiry, no duty to disclose any information regarding 

the internal audit results for the Mexico plant, which found discrepancies above-sometimes four 

to five times above-the goal set by Freightliner; law generally allows a business to keep 

confidential its internal operating procedures and data unless that information is specifically 

requested); DaimlerChrysler Corp. v. Morrow, 895 So.2d 861, 867 (Ala.2004) (no generalized 

duty to disclose similar problems occurring in other vehicles). 

The above is true even where work was performed at the factory. In Century 21-Reeves 

Realty, Inc. v. McConnell Cadillac, Inc., GM, the manufacturer of the subject vehicle, serviced 

the automobile at its factory prior to its sale to a finance company to correct a problem with the 

engine and had no contacts with buyer; the Supreme Court of Alabama concluded that a 

summary judgment for GM was proper as to Century 21’s fraud claim based on the following 

analysis: 

The undisputed evidence shows that Century 21 purchased the automobile from 

GMAC, not from GM. GM was not involved with the negotiations leading up to 

Century 21’s purchase of the automobile from GMAC. GM, which had no 

confidential relationship with Century 21 (in fact, GM had no contacts with 

Century 21 at all), had serviced Century 21's automobile at the factory to correct 

the problem with the engine. Although GM may have misjudged the 

effectiveness of its efforts to rectify the problem with the engine's gasket, we can 

find no basis under the circumstances of this case upon which to impose a duty on 

GM's part to disclose information concerning the automobile directly to Century 

21. See Cobb v. Southeast Toyota Distributors, Inc., 569 So.2d 395 (Ala.1990). 

[FN1] 

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FN1. The record shows that GM adopted a plan to notify owners of 

record of automobiles equipped with the HT-4100 engine of the 

problem that it had had with the gaskets. The record is unclear; 

however, as to whether GMAC or Century 21 actually received 

specific notice of the engine's problematic history. 

Century 21-Reeves Realty, Inc. v. McConnell Cadillac, Inc., 626 So.2d 1273, 

1275-1276 (Ala. 1993). 

CHB is a remote home manufacturer; the Stricklands are consumers, who purchased the 

home from an independent dealer. Absent direct communications between the parties, there can 

be no duty to disclose. Cato, 630 So. 2d at 382. Even if a duty did exist, there is no evidence that 

CHB suppressed any material facts. 

 Thus, the Stricklands cannot prove the existence of a legal duty or that CHB has 

suppressed any material facts. For the reasons discussed herein, CHB respectfully urges this 

Court to grant a summary judgment in CHB’s favor on the Stricklands’ claims for fraudulent 

concealment including any negligent/wanton fraudulent concealment. 

C. CHB IS ENTITLED TO SUMMARY JUDGMENT ON THE 

STRICKLANDS’ TORT CLAIMS 

 The Stricklands advance three tort claims (in addition to fraud) wherein they allege that 

their home was constructed and designed in an improper manner. In Count Six of the 

Complaint, the Stricklands allege negligent manufacture and design of their home. (Complaint, 

pp. 11, ¶ 46) In Count Seven of the Complaint, the Stricklands allege wanton construction of 

their home. (Complaint, p. 12, ¶ 51) Finally, in Count Ten of the Complaint, the Stricklands 

allege a product liability action under Alabama’s Extended Manufacturer Liability Doctrine 

(“AEMLD”), claiming that the home was sold to them in a defective condition and that it was 

unreasonably dangerous. (Complaint, pp. 14, ¶ 67). The Stricklands’ tort claims fail for several 

reasons. 

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Claims alleging negligence, wantonness or liability under the AEMLD are barred under 

Alabama law by its two year statute of limitations. See § 6-2-38(l), Code of Alabama, (1975).

See, generally, Smith v. Medtronic, Inc., 607 So. 2d 156, 159 (Ala. 1992) (an action alleging 

negligence, wantonness, or liability under the AEMLD must be brought within two years after 

the cause of action accrued). The cause of action arose as soon as Strickland was entitled to 

maintain it. The Stricklands purchased their home in March of 2003. “A cause of action 

‘accrues’ as soon as the party in whose favor it arises is entitled to maintain an action thereon.” 

Id., (citing Garrett v. Raythorn Co., 368 So.2d 516 (Ala. 1979)). Any cause of action for the 

alleged defective manufactured home accrued on or shortly after the Stricklands accepted 

delivery of the house in March or April, 2003. The cause of action was not brought until the 

26th of June, 2006, which is after the two year statute of limitations period. 

Assuming, arguendo, that the statute of limitations did not expire prior to the filing of the 

civil action, any negligent or wanton manufacture or repair claims are due to be summarily 

dismissed as said claims are merely breach of warranty claims and not cognizable under 

Alabama law. One cannot recover in tort for injury to the product itself, compensation for such 

injury may be obtained through available contractual remedies, i.e. claims for breach of express 

warranty. See Dairyland Ins. Co. v. General Motors Corp., 549 So.2d 44, 46 (Ala. 1989); see 

also Lloyd Wood Coal Co. v. Clark Equip. Co., 543 So.2d 671, 673-674 (Ala. 1989) (relying on 

East River S.S. Corp. v. Transamerica Delavel, Inc., 476 U.S. 858 (1986), which held that “a 

manufacturer in a commercial relationship has no duty under either a negligence or strict 

products-liability theory to prevent a product from injuring itself” and that “[d]amage to a 

product itself is most naturally understood as a warranty claim.”) (emphasis in original); see also 

Grand Manor, Inc. v. Dykes, 778 So.2d 167, 171, n.3 (Ala.Civ.App. 1998) (“warranty actions 

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19

under the Uniform Commercial Code are the only appropriate means for seeking recovery for 

damage to the product itself caused by negligent manufacture”) (overruled on other grounds by 

Ex parte Grand Manor, Inc., 778 So.2d 173 (Ala. 2000)). 

 The Stricklands cannot support any negligent or wanton manufacture or repair claims as 

there is no substantial evidence that CHB harbored an intent not to repair the home or otherwise 

injure or deceive the Stricklands. See, e.g., Jewell v. Seaboard Industrial, Inc., 667 So.2d 653, 

659 (Ala. 1995) (Jewell presented no substantial evidence that manufacturer harbored an intent 

not to repair the manufactured home or otherwise to injure or deceive Jewell; the evidence 

indicated that on one occasion, a representative from Southern Energy spent two or three days 

making repairs to Jewell’s manufactured home, apparently repairing all but 5 of 128 defects in 

Jewell’s original list-on other occasions, Southern Energy tried to make appointments with 

Jewell, but the parties could not agree on a time or else Jewell could not be reached). 

It is further respectfully submitted there is no public or common law duty owed by 

manufactured home builders in Alabama or anywhere else in the country to build a perfect home 

or to perform repairs. See Burnell v. Morning Star Homes, Inc., 494 NYS 2d 488 (NY App. Div. 

1985). In Burnell, the Supreme Court of New York correctly recognized that a manufactured 

home manufacturer that provides a limited warranty to a purchaser owes duties under the limited 

warranty to the purchaser. If a home is manufactured incorrectly, or improperly repaired 

thereafter, a manufacturer is guilty of breach of express warranty. The manufacturer cannot 

simultaneously be guilty of negligence since there is no common law or public law duty for a 

manufactured housing company to do anything. 

The economic loss doctrine bars any recovery in this instance. At their deposition, the 

Stricklands and their attorney stipulated that they had not suffered any personal injuries in 

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connection with his home. (Exhibit B, pp. 165:13 – 166:15). This case is thus reduced to a 

claim for damage to the product itself. In Lloyd v. Wood Coal Co. v. Clark Equipment Co., 543 

So. 2d 671 (1989), the Alabama Supreme Court discussed the economic loss rule as it applies in 

tort claims involving manufactured products. There, the Court held that a manufacturer in a 

commercial relationship owes no duty under tort theories (including negligence and AEMLD) to 

prevent a product from injuring itself. Id. Where, as here, there is no personal injury and there is 

no damage to property other than to the product itself, the economic loss doctrine bars any 

recovery in tort. Id. The Stricklands’ claims for negligence, wantonness and AEMLD are thus 

barred by the economic loss doctrine because property damage claims are not actionable. 

 Even though the Stricklands testified that the home has not injured him in any way, they 

will likely tumble to a position that they suffered mental anguish and distress arising out of 

alleged defects in his home. However, allegations of mental anguish under tort theories do not 

state a claim under Alabama law unless the plaintiff sustains an actual physical injury or the 

plaintiff is placed in immediate risk of physical harm (i.e. suffers a “near miss” under Alabama’s 

zone of danger test). Ex parte Grande Manor, Inc., 778 So. 2d 173, 179 (Ala. 2000). The 

Stricklands stipulated that they have not been injured by the home; furthermore, they did not 

complain to a doctor nor receive any diagnosis in connection with any alleged defects in their 

home. (Exhibit B, pp. 165:13 – 168:4). The Stricklands’ mental anguish claims, therefore, are 

due to be dismissed. 

The Stricklands’ product liability claim under AEMLD also fails because they cannot 

establish the prima facie elements of that claim. To make a case for product liability under 

Alabama’s AEMLD statute, the Stricklands must show: 

[A]n injury was caused by one who sold a product in a defective condition that 

made the product unreasonably dangerous to the ultimate user or consumer; that 

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21

the seller was engaged in the business of selling such a product; and that the 

product was expected to, and did, reach the user without substantial change in the 

condition in which it was sold. Sapp v. Beech Aircraft Corp., 564 So. 2d 418 

(Ala. 1990). Furthermore, the burden of proof rests with the plaintiff to prove that 

the product left the defendant's control in an unreasonably dangerous condition 

and not fit for its expected use, and that that which caused the product to be in 

such an unfit condition in fact caused the injury. Sears, Roebuck & Co. v. Haven 

Hills Farm, Inc., 395 So. 2d 991, 995 (Ala. 1981). 

Bell v. T.R. Miller Mill Co., 768 So. 2d 953, 957 (Ala. 2000). 

The Stricklands’ AEMLD claim fails because they have no evidence that their home left 

CHB’s factory in an “unreasonably dangerous” condition, or that the home “caused” them any 

injury. (Exhibit B, pp. 165:13 – 168:4). Because the Stricklands suffered no physical injury, 

CHB is due judgment as a matter of law on the Stricklands’ claim under AEMLD. 

Further, the Supreme Court of Alabama has held that exterior walls of homes are not 

products under the AEMLD. Keck v. Dryvit Systems. Inc., 830 So.2d 1 (Ala. 2002) (holding that 

a house's exterior insulation finishing system is not a product); see also, Wells v. Clowers 

Construction Co., 476 So. 2d 105, 106 (Ala. 1985) (holding that a fireplace is not a product as 

attachments or improvements to a home that become as much a part of a house as the four walls 

cannot be considered a product under the AEMLD). Given that the walls themselves are not a 

product, there is no cause of action under AEMLD.12

Finally, the Stricklands’ tort claims fail because the Stricklands did not “special-order” 

the home. (Exhibit B, pp. 36:19 – 37:21). They purchased the home based on their inspection of 

a display model on the dealer’s lot. The Stricklands requested only a few minor differences 

between the home they viewed and the home they ordered. Id. Both Mr. and Mrs. Strickland 

testified that they received “exactly” what they ordered. (Exhibit B, pp. 42:23 – 44:5). None of 

 

12 The issue of whether the home, as a whole, is a product under AEMLD appears to be an open 

question under Alabama law. Ex parte Grand Manor, 778 So. 2d 173, 179, n.4 (Ala. 2000). 

Case 1:06-cv-00682-TFM Document 64 Filed 03/28/2008 Page 21 of 39
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the allegations which form the basis of the Stricklands’ Complaint relate in any way to the minor 

variations requested. Also, the Stricklands had no pre-sale contact with CHB, and further, they 

realized that the sales person with whom they did have contact, did not work for CHB. (Exhibit 

B, pp. 39:20 – 42:1). Alabama law provides that a manufactured home purchaser who specialorders a home directly from a manufacturer is owed a duty of reasonable care under tort theories, 

such as negligence. Where, as here, a customer purchases a home from a retailer and does not 

special order it, a manufacturer owes no duties of care because the harm is deemed to be 

unforeseeable. Keck, 830 So.2d at 21-24. Accordingly, the Stricklands’ negligence and 

wantonness claims fail because CHB does not owe the Stricklands any duties under tort law. 

 Based on the foregoing, it is clear that the Stricklands cannot advance claims for 

negligent or wanton construction or strict liability under AEMLD. CHB, therefore, is due 

judgment as a matter of law. 

D. CHB IS ENTITLED TO SUMMARY JUDGMENT ON THE 

STRICKLANDS’ UNJUST ENRICHMENT CLAIM 

The Stricklands allege a claim for unjust enrichment. (Complaint, pp.12 – 13, ¶ 54 – 56). 

The Stricklands’ claim for unjust enrichment fails because the parties are subject to a written 

agreement – an express warranty – and an unjust enrichment action cannot be maintained in the 

presence of an express agreement between the parties. 

Under Alabama law, a party cannot recover on a claim of unjust enrichment where there 

is an enforceable agreement among the parties which addresses the same subject matter. 

Kennedy v. Polar-Bek & Baker Wildwood Partnership, 682 So. 2d 443, 447 (Ala. 1996); 

Sullivan v. Mazak Corp., 805 So. 2d 674 (Ala. 2000) (Justice See, concurring in part and 

dissenting in part). This is the case because a suit for unjust enrichment is a claim for quasi 

contract, and a party cannot simultaneously advance claims based on the existence of an express 

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agreement on one hand, and the absence of any agreement on the other. Architecture, Inc. v. 

Miller, 769 So. 2d 330, 335 (Ala. Civ. App. 2000). Thus, an unjust enrichment / quasi contract 

action lies only where there is no express agreement. Id. 

Judge Thompson recently discussed this principle in ASD Specialty Healthcare, Inc. v. 

Robert G. Hickes, M.D., P.C., No. 1:05cv592-MHT, 2006 U.S. Dist. LEXIS 55129 (M.D. Ala. 

August 7, 2006), where he held that: 

it is black letter law that the predicate for a claim of unjust enrichment is the 

absence of a contract: “the existence of a contract precludes the existence of a 

contract implied by law, or quasi contract,” 66 Am. Jur. 2d Restitution and 

Implied Contracts § 24, and “when an adequate remedy at law exists, a claim of 

unjust enrichment will not be entertained.” Id., § 30. 

ASD Specialty Healthcare, 2006 U.S. Dist. LEXIS at *5. 

 The undisputed evidence in this case is that CHB gave the Stricklands an express, 

written Limited Warranty, and that the Stricklands are suing under said Limited 

Warranty. (Complaint, p.7, ¶ 18; Exhibit B, pp. 92:2 – 22). Because there is an express 

agreement between the parties, the Stricklands’ unjust enrichment claim is due to be 

denied. Accordingly, CHB requests that the Court enter summary judgment in CHB’s 

favor on the claim of unjust enrichment. 

E. CHB IS ENTITLED TO SUMMARY JUDGMENT ON THE 

STRICKLANDS’ CLAIM FOR BREACH OF IMPLIED WARRANTY OF 

HABITABILITY

 The Stricklands allege a claim for breach of the implied warranty of habitability in Count 

Five of the Complaint. (Complaint, p. 11, ¶ 41 – 44). This claim fails for factual and legal 

reasons. 

 This claim fails factually speaking because the Stricklands testified that they continue to 

live in the home without any problems. (Exhibit B, pp. 26:14 – 27:4). 

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 The Stricklands claim fails legally speaking for at least two reasons. First, in the Limited 

Warranty provided by CHB, CHB waived all implied warranties. In Turner v. West Hampton 

Court, L.L.C., 903 So. 2d 82 (Ala. 2004), the Alabama Supreme Court held that the implied 

warranty of habitability claim may be waived through a contract or warranty. In that case, the 

court affirmed the trial court’s grant of summary judgment in favor of a homebuilder based on a 

contractual provision that waived all implied warranties. 

Secondly, with regard to the specific claim of an implied warranty of habitability, such 

warranties only apply to real property or “buildings”, and do not apply to goods. See Waites v. 

Toran, 411 So.2d 127, 129 (Ala. 1982). Therefore, if a manufactured home is considered to be a 

consumer product, a belief which is disputed by CHB,13 the warranty of habitability does not 

apply to the Manufactured Home made the basis of this civil action.14 Even if the implied 

 13 The Manufactured Housing Improvement Act of 2000 struck subsection (a) of 42 

U.S.C. 5403 which required the Secretary to consult with the Consumer Product Safety 

Commission prior to establishing appropriate Federal manufactured home construction and 

safety standards. Pub. L.106-569, 114 Stat. 2997. The new law governing manufactured housing 

establishes a consensus committee to, among other things, provide periodic recommendations to 

the Secretary to adopt, revise and interpret the Federal manufactured housing and construction 

safety standards and the procedural and enforcement regulations. 42 U.S.C. 5403(a)(3). Based 

on the forgoing and the Manufactured Housing Improvement Act of 2000’s purpose to, among 

other things, “facilitate the availability of affordable manufactured homes and to increase 

homeownership for all Americans” 42 U.S.C. 5401 (a)(2), it appears Congress no longer 

considers manufactured housing as a “consumer product”. See also Clark v. Jim Walters Homes, 

Inc., 719 F.Supp. 1037, 1043 (M.D.Ala. 1989) (finding that the “plain reading of the statute 

suggests that sales of dwellings are not covered by the Magnuson-Moss Warranty Act”); 

Zimprich v. Stratford Homes, Inc., 453 N.W.2d 557, 561 (Minn. App. Ct. 1990) (finding that the 

sale of a manufactured home involved the sale of separate building materials and component 

parts, thus the Magnuson-Moss Act did not apply); but see Yoemans v. Homes of Legend, Inc., 

2001 WL 237313 (M.D.Ala. 2001), not reported in F. Supp.2d (Relying in part on 40 Fed.Reg. 

25721, 27722 (1975), 16 C.F.R. §§ 700.1(a)--(f) and In re VanBlarcum, 19 S.W.3d 484, 491-92 

(Tex.Ct.App.2000), which was subsequently overruled by In re American Homestar of 

Lancaster, Inc. 50 S.W.3d 480 (Tex. 2001). 

14 In the alternative, if the manufactured home is considered real property, as opposed to 

a “good” or “consumer product”, it is not subject to claims for breach of implied warranties for 

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warranty of habitability does apply, privity is also a requirement for the implied warranty of 

habitability. See Howe v. Bishop, 446 So.2d 11, 14 (Ala. 1984) (noting that one of the elements 

of the implied warranty of habitability is that the plaintiff purchased a residence “from” the 

defendant); Cochran v. Keeton, 47 Ala. App. 194, 198-199; 252 So.2d 307 (Ala.Civ.App. 1970) 

(adopting the implied warranty of habitability as an exception to the rule of caveat emptor solely 

“for the sale of a brand-new house by a vendor-builder to a first buyer”). 

Based on the foregoing, CHB is entitled to a judgment in its favor as to the implied 

warranty claims. 

F. CHB IS ENTITLED TO SUMMARY JUDGMENT ON THE 

STRICKLANDS’ IMPLIED WARRANTY CLAIMS FOR 

MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE 

The Stricklands allege two implied warranty claims that arise under Alabama’s Uniform 

Commercial Code. In Count Three of the complaint, the Stricklands allege a claim for breach of 

the implied warranty of merchantability; in Count Four, the Stricklands allege a claim for breach 

of the implied warranty of fitness for a particular purpose. (Complaint, pp. 9-10, ¶ 33 – 40). The 

Stricklands’ implied warranty claims fail because they lack privity of contract with CHB. 

Furthermore, the Stricklands’ fitness for a particular purpose claim fails because the undisputed 

evidence shows that CHB had no involvement in the Stricklands’ decision to buy the home in 

question. 

 Both of the Stricklands’ implied warranty claims fail because CHB did not sell the home 

to the Stricklands; instead, the Stricklands purchased the home from an independent retail 

dealership. (Exhibit B, pp. 40:20 – 41:23). Because the Stricklands purchased their home from 

 

merchantability, fitness for a particular purpose, or Magnuson-Moss Warranty Act claims. See 

Code of Alabama, §§ 7-2-105; 7-2-314; 7-2-315; 15 U.S.C. § 2301(1); Cf. Clark v. Jim Walter 

Homes, Inc.,719 F. Supp. 1037, 1043 (M.D. Ala. 1989). 

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an independent dealer, and the only agreement they had with CHB was a Limited Warranty, 

there is no privity of contract between CHB and the Stricklands and, therefore, their claims for 

breach of implied warranty are barred by the doctrine of privity. 

 In Jenkins Brick Co. v. Waldrip, 384 So. 2d 117 (Ala. Civ. App. 1980), the Alabama 

Court of Civil Appeals held that there is no right of action on implied warranty claims against a 

manufacturer for property damage without privity of contract. Id. at 318; Bryant v. Southern 

Energy Homes, Inc., 682 So. 2d 3 (1986) (under Alabama law, the implied warranty of fitness 

for a particular purpose does not apply to Southern who is the manufacturer, not the seller); 

Hobbs v. General Motors Corp., 134 F. Supp.2d 1277, 1281 (M.D.Ala. 2001) (a “remote 

manufacturer” has been identified as being a manufacturer who is not involved in any transaction 

with and, therefore, is not in privity with the buyer); Ex parte Miller, 693 So. 2d 1372, 1375 

(Ala. 1997) (finding no error in directed verdict for remote manufacturer on implied warranty 

theories and revocation of acceptance issue); Johnson v. Anderson Ford, Inc., 686 So. 2d 224, 

228 (Ala. 1996) (absence of privity of contract that arises out of seller/buyer relationship is fatal 

to implied warranty claim under Alabama version of UCC in cases of strictly economic loss);

Rhodes v. General Motors Corp., 621 So. 2d 945, 947-48 (Ala. 1993) (without privity of 

contract, there is no right of action against a manufacturer for direct economic loss); Kidd v. 

Kilpatrick Chevrolet, Inc., 613 So. 2d 336, 338 (Ala. 1993) (because Kilpatrick was not the 

“seller,” the implied warranty sections are not applicable). 

Moreover, the Alabama Supreme Court has expressly confronted and rejected the 

argument that an express warranty from a remote manufacturer creates “privity” sufficient to 

deem the remote manufacturer a “seller” with respect to the buyer. Rhodes v. General Motors 

Corp., 621 So. 2d 945, 947-48 (Ala. 1993) (regardless of any express warranties that a 

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manufacturer may wish to give with a product, by their very language the commercial code’s 

implied warranty sections apply to the seller of the product). 

The fitness claim also fails because the Stricklands cannot prove the prima facie elements 

of his claim. To succeed on an implied warranty of fitness claim, a plaintiff must prove three 

elements: (1) that the seller had reason to know the buyer’s particular purpose; (2) that the seller 

had reason to know that the buyer is relying on the seller’s skill or judgment to furnish 

appropriate goods; and (3) that the buyer, in fact, relied upon the seller’s skill or judgment. 

Donald v. City Nation Bank of Dothan, 295 Ala. 320, 324-25, 329 So. 2d 92, 95-96 (1976). All 

three elements are lacking here. 

 The record reflects that the Stricklands had no presale contact with CHB at all. (Exhibit 

B, pp. 40:20 – 41:23). Therefore, there was no opportunity, conversation or exchange where the 

Stricklands ever informed CHB of particular needs, or had an opportunity to rely on advice 

provided by CHB. In short, because the Stricklands had no contact with CHB before purchasing 

his homes, they cannot claim the benefit of the implied warranty of fitness for a particular 

purpose. 

 Accordingly, CHB is due summary judgment as to the Stricklands’ claims for breach of 

the implied warranties of merchantability and fitness for a particular purpose. 

G. CHB IS ENTITLED TO SUMMARY JUDGMENT ON THE 

STRICKLANDS’ CLAIMS FOR BREACH OF EXPRESS WARRANTY 

AND VIOLATION OF THE MAGNUSON MOSS ACT 

The Stricklands urge claims for breach of express warranty (Count Two) and violation of 

the Magnuson Moss Act (Count One). (Complaint, pp. 7 – 9, ¶ 23 – 32). Both claims fail 

because CHB has not breached any warranty nor did the Stricklands provide notice of the alleged 

defect. 

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The Stricklands contend that the walls of their home are damaged from condensation and 

mold, due to the location of the vapor barrier. (Exhibit B, p. 162:3 – 12). However, the Limited 

Warranty that CHB provided to the Stricklands excludes warranty coverage for “deterioration or 

damage from high relative humidity, condensation...” (Exhibit C, p. 4). The law provides that 

consumers cannot recover under manufacturer’s limited warranties for matters that are excluded 

from such warranties. Froning v. Toyota Motor Sales, U.S.A., Inc., No. 1:05cv273, 2006 U.S. 

Dist. LEXIS 75514, *11-*12 (W.D.N.C., Sept. 12, 2006) (granting summary judgment to 

manufacturer on defective tire claim where tires are excluded from coverage under limited 

express warranty); Owens Transp. Serv., Inc. v. Int’l Truck and Engine Corp., No. 1:05cv2897, 

2006 U.S. Dist. LEXIS 89083, *10 (N.D. Ohio, Dec. 7, 2006) (granting summary judgment to 

International where warranty expressly disclaims components warranted by their respective 

manufacturers, such as the engine); Eugene Truck Builders, Inc. v. Ford Motor Co., 622 S.E. 2d 

698, 700-02 (N.C. Ct. App. 2005) (upholding summary judgment in favor of manufacturer where 

plaintiff had non-Ford parts installed and express written warranty stated that it did not cover 

“Damages Caused By: ... non-Ford parts installed after the vehicle leaves Ford’s control”); 

Kociubuk v. Huntington Nat’l Bank, No. 64551, 1994 Ohio App. LEXIS 11, *12-*13 (Ohio Ct. 

App., Jan. 6, 1994) (holding that trial court properly granted summary judgment on express 

warranty claims where Hyundai’s warranty stated that “damage or failure resulting from misuse, 

abuse, accident, theft or fire, is not covered”). Here, because condensation claims are excluded 

under the Limited Warranty, CHB is due judgment as a matter of law. 

The Stricklands’ Magnuson Moss Act claim fails for the same reason. The Magnuson 

Moss Act provides that “a consumer who is damaged by the failure of a supplier, warrantor, or 

service contractor to comply with any obligation under this title [15 USCS §§ 2301 et seq.], or 

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under a written warranty, implied warranty, or service contract, may bring suit for damages and 

other legal and equitable relief . . .” 15 U.S.C. § 2310(d). In the case at bar, the Stricklands are 

claiming that CHB violated the Magnuson Moss Act because CHB breached state law express 

and implied warranties. (Complaint, p. 7, ¶ 18 - 21) Under the law, Magnuson Moss claims are 

derivative from state law warranty claims. Thus, Magnuson Moss Act liability is predicated on a 

finding of breach of warranty.15 Rhode v. E & T Investments, Inc., 29 F. Supp.2d 1298, 1304 

(M.D. Ala. 1998) (summary judgment denied on Magnuson Moss Act claim because question of 

fact existed as to express warranty claim); Diaz v. Paragon Motors of Woodside, Inc., 424 F. 

Supp. 2d 519 (E.D.N.Y. 2006) (granting summary judgment on plaintiff’s Magnuson-Moss Act 

claim where defendant did not violate its express warranty); Farley v. Country Coach, Inc., No. 

05-CV-71623, 2006 U.S. Dist. LEXIS 95728, *19 (E.D. Mich. Nov. 14, 2006) (court held that 

Magnuson Moss Act liability was predicated on state law breach of warranty claim); Schultz v. 

General R.V. Center, No. 04-72562, 2006 U.S. Dist. LEXIS 63414, *33-*34 (E.D. Mich. Sept. 6, 

2006) (summary judgment granted on Magnuson Moss Act claim because court granted 

summary judgment on plaintiff’s express and implied warranty claims). 

 To the extent the Stricklands’ Magnuson Moss Act claim is predicated on their express

warranty theory, their claim fails because CHB’s Limited Warranty excludes coverage for 

condensation claims (as discussed above), and CHB is due judgment as a matter of law on the 

express warranty claim. 

 

15 Section 2310(d) of the Magnuson Moss Act also contemplates a cause of action for the 

violation of the statute itself, independent of any breach of warranty. Such a claim might arise if 

a warrantor included in a limited warranty language prohibited by the Act itself. The Stricklands 

makes no such claim in this action; their Magnuson Moss Act claim derives from their state law 

warranty claims. 

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 Similarly, to the extent the Stricklands’ Magnuson Moss Act claim is predicated on their 

implied warranty theories, their claim fails because the absence of privity bars any recovery. As 

discussed above in section G, the Stricklands’ claims for breach of implied warranty under the 

U.C.C. should be denied because CHB is a remote manufacturer and the absence of privity bars 

implied warranty claims under Alabama law. In Gill v. Blue Bird Body Co., No. 05-10466, 2005 

U.S. App. LEXIS 11626, *10 (11th Cir. 2005),16 the court held that a manufacturer was entitled 

to judgment as a matter of law on a Magnuson Moss Act claim because of the absence of privity. 

[W]hile the appellees' Magnuson-Moss claims constitute a separate federal cause 

of action for breach of an implied warranty, 15 U.S.C. § 2310(d)(1), courts must 

look to the relevant state law to determine the meaning and creation of any 

implied warranty. See 15 U.S.C. § 2301(7)("The term 'implied warranty' means 

an implied warranty arising under State law . . . in connection with the sale by a 

supplier of a consumer product."). Importantly, courts have uniformly held that 

Magnuson-Moss does nothing to alter or modify state law privity requirements. 

The question of whether privity is required thus hinges entirely on applicable state 

law. See Voelker v. Porsche Cars N. Am., Inc., 353 F.3d 516, 525 (7th Cir. 2003); 

Walsh v. Ford Motor Co., 257 U.S. App. D.C. 85, 807 F.2d 1000, 1011 (D.C. Cir. 

1986)("Under the terms of Magnuson-Moss, state law governs the existence and 

basic meaning of implied warranties."); Abraham v. Volkswagen of Am., Inc., 795 

F.2d 238, 249 (2d. Cir. 1986)("Both the statutory language and the legislative 

history, therefore, indicate that Congress [in enacting Magnuson-Moss] did not 

intend to supplant state law with regard to privity in the case of implied 

warranties."); Carlson v. Gen. Motors Corp., 883 F.2d .287, 291-92 (4th Cir. 

1989). In relevant part, state law thus controls appellees' implied warranty 

Magnuson-Moss claims. 

* * * 

Finally, because appellees' Magnuson-Moss claims turn on Georgia implied 

warranty law, appellees' lack of privity similarly defeats their federal claims. See

15 U.S.C. § 2301(7). This is notwithstanding the jury's determination that the 

appellees were "consumers" within the meaning of 15 U.S.C. § 2301(3). Nothing 

in Magnuson-Moss displaces substantive state law privity requirements governing 

implied warranty claims. Voelker, 353 F.3d at 525; Walsh, 807 F.2d at 1011; 

Abraham, 795 F.2d at 249. 

 

16 This case is an unpublished decision. However, points of law quoted herein are on-point and 

consistent with other authorities. 

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Gill, 2005 U.S. App. LEXIS at *9-*13. 

 Here, because the Stricklands and CHB do not stand in privity with one another, 

the Stricklands’ Magnuson Moss Act claim is due to fail to the extent it arises out of their 

implied warranty claims. 

In any event, the Stricklands failed to offer evidence that CHB violated the 

Magnuson Moss Act or breached the express Limited Warranty. More importantly, the 

Stricklands’ Magnuson Moss Act claims should be denied because they failed to give 

CHB the opportunity to repair the home. The Magnuson Moss Act requires a consumer to 

provide a warrantor with a reasonable opportunity to cure before filing suit. 15 U.S.C. 

2310(e); Cunningham v. Fleetwood Homes of Georgia, 263 F.3d 611, 618 (11th Cir. 

2001); Forest River Inc. v. Posten, 847 So. 2d 957 (Ala. Civ. App. 2002). The 

Stricklands’ deposition testimony established that they never gave CHB notice of their 

alleged condensation claims. (Exhibit B, pp. 164:3 – 165:1). Perhaps the reason that the 

Stricklands have failed to complain about condensation, mold or mildew is that they have 

failed to find something to complain about. 

Mr. Ritchey: All right. Are there any soft walls? 

Ms. Hunt: Are there any soft walls, like, you know, soft, 

that you feel anywhere that you know about? 

Mrs. Strickland: Not Really. 

Ms. Hunt: Not Really. 

Mr. Ritchey: She’s never seen the mold, any mold, or 

nobody has ever seen mold? 

Ms. Hunt: You never saw the mold? 

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Mr. Strickland: Never. 

Mrs. Strickland: Never 

Exhibit B, pp. 161:9 – 15; 162:13 - 19. 

Accordingly, the Stricklands’ Magnuson Moss Act claims should be denied. 

CHB’s Limited Warranty applies to “defects” that become evident within the one-year 

warranty period, where written notice is provided to CHB. (Exhibit C, p. 4). In order to prove 

breach of warranty, the Stricklands must show that CHB either refused to repair or replace a 

defect, or failed to repair or replace a defect within a reasonable time. Ala. Code § 7-2-

729(1)(a); Ag-Chem Equip. Company, Inc. v. Limestone Farmers Co-op., Inc., 567 So. 2d 250 

(Ala. 1990). In the case at bar the warranty specifically states that “written notice” must be 

given. (Exhibit C, p. 4). When a warranty states the only way to obtain warranty service, a 

homeowner must follow the specific requirements in the warranty. See Southern Energy Homes, 

Inc. v. Washington, 774 So.2d 505 (Ala. 2000).17 In addressing whether sufficient notice had 

been provided, the Supreme Court of Alabama noted: 

“ ‘Express warranties [are] treated like any other type of contract and interpreted 

according to general contract principles.’ See Ex parte Miller, 693 So.2d 1372, 

1376 (Ala.1997)(citing 2 Alphonse M. Squillante & John R. Fonseca, Williston 

 17 A warranty is also similar to an insurance policy wherein the insured is required to 

submit a claim for benefits. Thus, cases in the insurance context may also provide guidance with 

regard to situations where a condition precedent, such as notice, is not met. See, e.g., Nationwide 

Ins. Co. v. Nilson, 745 So.2d 264 (Ala. 1998) (in order to recover on his claim alleging breach of 

contract, plaintiff was required to first comply with the condition precedent that he submit to an 

examination under oath as required by the insurer); United Ins. Co. v. Cope, 630 So.2d 407 (Ala. 

1993) (an insurer’s obligation to pay an insured’s claim does not arise until the insured has 

complied with the terms of the contract with respect to submitting claims); Mordecai v. Blue 

Cross Blue Shield, 474 So. 2d 95 (Ala. 1985) (until the insured furnishes proof of loss in the 

form required in the policy, the insurer is under no obligation to pay or to investigate the claim). 

In addition to the above, the Alabama Supreme Court has noted that “no case from this Court 

places on an insurance company an obligation to either investigate or pay a claim until the 

insured has complied with all of the terms of the contract with respect to submitting claims for 

payment.” Cope, 630 So.2d at 407. 

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on Sales, § 15-9 (4th ed.1974)). If a company wishes to require a specific mode 

of notice as a prerequisite to warranty coverage, it may do so. See generally 

Miller, 693 So.2d at 1376 (stating that a company can limit its warranty 

coverage); see also Rhode v. E & T Invs., Inc., 29 F.Supp.2d 1298, 1303 

(M.D.Ala.1998)(construing a warranty under which a manufacturer agreed to 

replace defective parts ‘PROVIDED THAT the Owner gives written notice of any 

such defect to the Manufacturer or its Dealer at their business address within one 

(1) year and ten (10) days’).” 

Southern Energy Homes, Inc. v. Washington, 774 So.2d at 511. 

Alabama case law clearly holds that when the first notice of an alleged defect or claim for 

breach of warranty is given after the warranty expired, it is too late and a claim for breach of 

warranty can not be maintained See, e.g. Turner v. Westhampton Court, LLC, 903 So.2d 82, 91 

(Ala.2004) (where Limited New-Home Warranty required written notice of a latent defect be 

given within the one (1) year warranty period, such a provision “operates as a waiver of the 

[claimants] rights to sue under the warranty if they fail to give notice of the defect within the 

one-year warranty period”); Puckett, Taul & Underwood, Inc. v. Schreiber Corp., Inc. v. 

Schreiber Corporation, Inc., 551 So.2d 979, 983; (Ala. 1989) (one year warranty given at latest 

in March, 1985 and first notice of claimed breach of warranty given in July, 1986; notice was too 

late and defendant entitled to a judgment on all warranty claims); Ag-Chem Equipment 

Company, Inc. vs. Limestone Farmers Co-op., Inc., 567 So.2d 250 (Ala. 1990) (warranty did not 

fail of its essential purpose where dealer stood ready to rebuild engine in accordance with 

warranty but buyer never tendered engine to enable dealer to complete repairs); Feil vs. The 

Wittern Group, Inc., 784 So.2d 302 (Ala. 2000) (buyer failed to establish breach of express 

warranty where during the warranty period of a repair or replacement warranty, manufacturer 

supplied replacement parts and according to warranty, buyer was responsible for shipping and 

reinstallation); Central Mining, Inc. vs. Simmons Machinery Co., Inc. 547 So.2d 529, 531 (Ala. 

1989) (summary judgment on warranty issue was proper where evidence showed only that

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“various and sundry” repairs were made on the loader and that manufacturer was not called on to 

make repairs to the hydraulic system that allegedly caused the fire); Jewell v. Seaboard 

Industrial, Inc., 667 So.2d 653, 660-661 (Ala. 1985) (list of 128 items given, but never 

complained about set-up of home until after suit filed; Supreme Court concluded Jewell did not 

give sufficient notice); Century 21-Reeves Realty, Inc. v. McConnell Cadillac, Inc., 626 So.2d 

1273, 1275 (Ala. 1993) overruled on other grounds by Hines v. Riverside Chevrolet Olds, Inc., 

655 So.2d 909 (Ala. 1994) (summary judgment proper were engine failed after warranty 

expired); Haynes vs. Ford Motor Company, Inc., 435 So.2d 1227, 1230 (Ala. 1983) (affirming 

summary judgment on breach of warranty claim where express warranty had expired prior to 

request for service and where vehicle was out of warranty, due to excessive mileage, at time 

claim arose); Redman Industries v. Binkey, 49 Ala. App. 595, 599-600, 274 So. 2d 621, 625 

(Ala.Civ.App. 1973) (failure to give manufacturer’s requested jury charge that manufacturer was 

entitled to notice within reasonable time after discovery of any breaches of warranty was 

reversible error); Copenhagen Reinsurance Company v. Champion Home Builders Company, 

Inc., 872 So.2d 848, 855 (Ala.Civ.App. 2003) (manufacturer’s warranty required “written 

notice” of any claim for warranty related defects; proper notice was not given to the 

manufacturer as the only notice given was over the telephone). 

It should also be noted that under Alabama law, the mere filing of a lawsuit does not 

constitute notice of breach. Hobbs v. General Motors Corp., 134 F.Supp.2d 1277, 1281 

(M.D.Ala. 2001). Since it is undisputed that no written notice was sent regarding any of the 

allegations contained in the Stricklands’ Complaint, CHB is entitled to a judgment in its favor on 

Counts One and Two. 

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H. THERE IS NO LEGALLY COGNIZABLE CLAIM FOR RISK OF 

FUTURE DAMAGES 

This case is essentially a “fear of vinyl wallboard” case. There has been no showing that 

the walls of the Strickland home have failed. Rather, it is undisputed by the Stricklands that 

neither they nor their expert have ever seen any soft walls in the home. (Exhibit B, p. 161:11-15; 

Exhibit A, vol. 2, pp. 204:20 – 205:7). Because there are no damages currently, the Stricklands 

premise their claims on the notion that there may be a problem some day. Such potential damage 

is expressly excluded in CHB’s Limited Warranty which in pertinent part, states as follows: 

THE WARRANTY DOES NOT COVER: 

. . . 

deterioration from high relative humidity, condensation, ground moisture, or 

extended moisture exposure caused by plants, building attachments or 

accessories; 

(Exhibit C, p. 4). 

In any event, this case is analogous to Phizer, Inc. v. Farsian, 628 So.2d 405 (Ala. 1996). 

In Phizer, the recipient of an artificial heart valve, which had not failed, filed an action in an 

Alabama state court alleging he was fraudulently induced to purchase the valve and misled about 

the rate of failure of the same model valve in other recipients and claimed, among other things, 

that the valve was manufactured “despite knowing of serious manufacturing problems that 

directly related” to valve failures in other recipients. Phizer, Inc. v. Farsian, 682 So. 2d at 406. 

Although the valve functioned properly, the plaintiff claimed the following injury: “with its 

higher rate of fracture and risk of death, [it was] worth less than the valve would have been 

worth if it had been what [the manufacturer] represented it to be” and also sought recovery for 

emotional distress and expenses related to the removal and replacement of the valve. Id. at 407. 

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The case was removed to federal court and the United States Court of Appeals for the Eleventh 

Circuit certified the following question to the Supreme Court of Alabama: 

Does a heart valve implantee have a valid cause of action for fraud under 

Alabama law if he asserts that the valve’s manufacturer fraudulently induced him 

to have the valve implanted when the damages that he asserts do not include an 

injury-producing malfunction of the product because the valve has been and is 

working properly? 

Phizer, Inc. v. Farsian, 682 So. 2d at 406. 

In response to the above, the Supreme Court of Alabama provided the following analysis: 

The question certified to this Court concerns whether Farsian may maintain a 

fraud claim under Alabama law. We conclude that he may not. 

Regardless of how Farsian pleads his claim, his claim is in substance a product 

liability/personal-injury claim--Farsian seeks damages because of the risk that his 

heart valve may one day fail. Alabama courts have never allowed a recovery 

based on a product that, like Farsian’s valve, is and has been working properly. 

Each of our prior cases in which fraud or other intentional conduct was alleged 

has involved a failure, a malfunction, or an accident that involved the defendant’s 

products and which injured the plaintiff. See Quality Homes Co. v. Sears, 

Roebuck & Co., 496 So. 2d 1 (Ala. 1986); Treadwell Ford, Inc. v. Campbell, 485 

So. 2d 312, 313 (Ala. 1986), appeal dismissed, 486 U.S. 1028, 100 L. Ed. 2d 596, 

108 S. Ct. 2007 (1988). 

Under Alabama law, Farsian’s fear that his valve could fail in the future is not, 

without more, a legal injury sufficient to support his claim. Although the facts as 

presented by the Court of Appeals indicate that the Bjork-Shiley heart valve has 

experienced problems with strut failures, Farsian’s concern that his heart valve, 

which is presently functioning normally, could later malfunction is not an injury 

recognized by Alabama law. 

. . . 

For the foregoing reasons, we answer the United States Court of Appeals’ 

question in the negative. 

Phizer, Inc. v. Farsian, 682 So. 2d at 407-08. 

The Supreme Court of Alabama has steadfastly stood behind its reasoning above. See, 

e.g. Houston County Health Care Authority v. Williams, 961 So.2d 795, 811 (Ala. 2006) (finding 

that under Alabama case law, mere exposure to a hazardous substance resulting in no present 

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37

manifestation of physical injury is not actionable where a person has suffered only mental 

anguish, even where the exposure has increased the exposed person’s chance of developing a 

serious physical disease); Southern Bakeries, Inc. v. Knipp, 852 So.2d 712, 718 (Ala. 2002) 

(opening the courts generally to compensation for fear of future disease would be a dramatic 

change in the law and could engender significant unforeseen and unforeseeable consequences; 

awarding such compensation is better left to the Legislature). Hinton v. Monsanto Co., 813 

So.2d 827, 830-832 (Ala. 2001) (Alabama law provides no redress for a plaintiff who has 

suffered no present injury or illness; no cause of action exists for medical monitoring for a 

potential problem that may occur in the future); Ford Motor Co. v. Rice, 726 So.2d 626, 627 

(Ala. 1998) (allegations that Ford suppressed that Bronco II contained design defect causing an 

undue propensity to roll over in sudden avoidance maneuvers, stating vehicles were worth less, 

cost to “repair”, punitive damages, attorney fees, and equitable relief in the form of a warning, 

even though no plaintiffs’ Bronco II actually rolled over or caused personal injuries or property 

damage; Supreme Court of Alabama found its previous decision in Phizer controlling and claims 

of injury were insufficient to sustain action alleging fraudulent suppression). 

In Ford Motor Co. v. Rice, the Supreme Court of Alabama noted that its holding is in 

accord with the view of most courts, as “it is well established that ‘purchasers of an allegedly 

defective product have no legally recognizable claim where the alleged defect has not manifested 

itself in the product they own.’” Weaver v. Chrysler Corp., 172 F.R.D. 96, 99 (S.D.N.Y. 1997), 

quoting Hubbard v. General Motors Corp., 1996 U.S. Dist. LEXIS 6974, No. 95 Civ. 4362, May 

22, 1996 (S.D.N.Y. 1996) (not reported in F. Supp.); see also Chin v. Chrysler Corp., 182 F.R.D. 

448, (D.N.J. 1998), citing cases. Ford Motor Co. v. Rice, 726 So.2d at 628-629. “Where . . . a 

product performs satisfactorily and never exhibits the alleged defect, no cause of action lies.” 

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Ford Motor Co. v. Rice, 726 So.2d at 629; citing Weaver, supra, at 100 (citation omitted). 

Further, other commentators have agreed with this approach. See Victor E. Schwartz et al., 

Medical Monitoring: Should Tort Law Say Yes?, 34 Wake Forest L. Rev. 1057, 1059 (Winter 

1999) (“For over two hundred years, one of the fundamental principles of tort law has been that a 

plaintiff cannot recover without proof of a physical injury”) (citing William L. Prosser, 

Handbook on the Law of Torts § 54, at 330-33 (4th ed. 1971)); W. Page Keeton et al., The Law 

of Torts § 30, at 165 (5th ed. 1984) (“The threat of future harm, not yet realized, is not enough”) 

(footnote omitted). 

Based on the foregoing, the Stricklands do not have a legally cognizable claim or injury. 

WHEREFORE, PREMISES CONSIDERED, CHB respectfully requests that the Court 

enter a full and final summary judgment in its favor, pursuant to Rule 56. 

Respectfully submitted, 

RITCHEY & SIMPSON, PLLC 

/s/ Gregory S. Ritchey

Gregory S. Ritchey, Esquire {ASB-8193-H68G} 

Richard S. Walker, Esquire {ASB-8719-L70R}

Counsel for Champion Home Builders Co. 

OF COUNSEL:

RITCHEY & SIMPSON, PLLC 

3288 Morgan Drive, Suite 100 

Birmingham, AL 35216-3084 

Phone: 205.876.1600 

Facsimile 205.876.1616 

Case 1:06-cv-00682-TFM Document 64 Filed 03/28/2008 Page 38 of 39
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CERTIFICATE OF SERVICE

 I, the undersigned, do hereby certify that on the 28th day of March, 2008, I electronically 

filed the foregoing with the Clerk of Court using the electronic filing system which will send 

notification of the foregoing upon the following: 

Jere L. Beasley, Esquire 

W. Daniel Miles, III, Esquire 

C. Gibson Vance, Esquire 

C. Lance Gould, Esquire 

BEASLEY, ALLEN, CROW, 

METHVIN, PORTIS & MILES, P.C. 

Post Office Box 4160 

Montgomery, AL 36103 

/s/ Gregory S. Ritchey

OF COUNSEL 

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