IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION 

HAROLD KELLY MURPHY, * 

 * 

 Plaintiff, * 

 * 

v. * Case No.: 2:06-cv-618 

 * 

SOUTHERN ENERGY HOMES, INC., et al., * 

 * 

 Defendants. * 

SECOND AMENDED ANSWER AND AFFIRMATIVE DEFENSES OF 

SOUTHERN ENERGY HOMES, INC.

Defendant Southern Energy Homes, Inc. (“Southern Energy”) hereby amends its 

amended answer to the Complaint of Plaintiff Harold Kelly Murphy as follows: 

Southern Energy denies each allegation in the Complaint (“Complaint”) except those 

expressly admitted below. 

PARTIES

 1. Southern Energy lacks knowledge sufficient to form a belief as to the truth of the 

allegations in paragraph 1 and, therefore, denies the allegations. 

 2. Southern Energy admits that it is a Delaware corporation with its principal place 

of business in Winston County, Alabama. The remaining allegations contained in this paragraph 

are denied. 

3. The allegations stated in paragraph 3 require no response. 

BACKGROUND FACTS

 4. It is admitted that Southern Energy would have provided its one year limited 

warranty (the “Limited Warranty”) to the first retail purchaser of the subject manufactured home 

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and said Limited Warranty speaks for itself. Southern Energy denies the remaining allegations 

in paragraph 4 of the Complaint. 

 5. Southern Energy denies the allegations in this paragraph of the Complaint. 

6. Southern Energy denies the allegations in this paragraph of the Complaint. 

 7. Southern Energy lacks sufficient information to admit or deny. 

 8. It is admitted that Southern Energy would have provided its one year limited 

warranty (the “Limited Warranty”) to the first retail purchaser of the subject manufactured home 

and said Limited Warranty speaks for itself. Southern Energy denies the remaining allegations 

in paragraph 8 of the Complaint. 

9. Southern Energy denies the allegations in this paragraph of the Complaint. 

10. Southern Energy denies the allegations in this paragraph of the Complaint. 

11. Southern Energy denies the allegations in this paragraph of the Complaint. 

12. Southern Energy denies the allegations in this paragraph of the Complaint. 

13. Southern Energy denies the allegations in this paragraph of the Complaint. 

14. Southern Energy denies the allegations in this paragraph of the Complaint. 

15. Southern Energy denies the allegations in this paragraph of the Complaint. 

16. Southern Energy denies the allegations in this paragraph of the Complaint. 

17. Southern Energy denies the allegations in this paragraph of the Complaint. 

COUNT ONE

MAGNUSON MOSS WARRANTY ACT

15 U.S.C. § 2301, et seq.

18. Southern Energy incorporates and realleges the answers to the preceding 

paragraphs as if fully set forth herein. 

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19. It is admitted that Southern Energy would have provided its one year limited 

warranty (the “Limited Warranty”) to the first retail purchaser of the subject manufactured home 

and said Limited Warranty speaks for itself. Southern Energy denies the remaining allegations 

in paragraph 19 of the Complaint. 

20. Southern Energy denies the allegations in this paragraph of the Complaint. 

21. Southern Energy denies the allegations in this paragraph of the Complaint. 

22. Southern Energy denies the allegations in this paragraph of the Complaint. 

Southern Energy denies that plaintiff is entitled to any relief whatsoever. 

COUNT TWO

BREACH OF EXPRESS WARRANTY

23. Southern Energy incorporates and realleges the answers to the preceding 

paragraphs as if fully set forth herein. 

24. It is admitted that Southern Energy would have provided its one year limited 

warranty (the “Limited Warranty”) to the first retail purchaser of the subject manufactured home 

and said Limited Warranty speaks for itself. Southern Energy denies the remaining allegations 

in paragraph 24 of the Complaint. 

25. Southern Energy denies the allegations in this paragraph of the Complaint. 

26. Southern Energy denies the allegations in this paragraph of the Complaint. 

27. Southern Energy denies the allegations in this paragraph of the Complaint. 

Southern Energy denies that plaintiff is entitled to any relief whatsoever. 

COUNT THREE

BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY

28. Southern Energy incorporates and realleges the answers to the preceding 

paragraphs as if fully set forth herein. 

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29. Southern Energy denies the allegations in this paragraph of the Complaint. 

30. Southern Energy denies the allegations in this paragraph of the Complaint. 

31. Southern Energy denies the allegations in this paragraph of the Complaint. 

Southern Energy denies that plaintiff is entitled to any relief whatsoever. 

COUNT FOUR

BREACH OF FITNESS FOR A PARTICULAR PURPOSE

32. Southern Energy incorporates and realleges the answers to the preceding 

paragraphs as if fully set forth herein. 

33. Southern Energy denies the allegations in this paragraph of the Complaint. 

34. Southern Energy denies the allegations in this paragraph of the Complaint. 

35. Southern Energy denies the allegations in this paragraph of the Complaint. 

Southern Energy denies that plaintiff is entitled to any relief whatsoever. 

COUNT FIVE

BREACH OF WARRANTY OF HABITABIILITY

36. Southern Energy incorporates and realleges the answers to the preceding 

paragraphs as if fully set forth herein. 

37. Southern Energy denies the allegations in this paragraph of the Complaint. 

38. Southern Energy denies the allegations in this paragraph of the Complaint. 

39. Southern Energy denies the allegations in this paragraph of the Complaint. 

Southern Energy denies that plaintiff is entitled to any relief whatsoever. 

COUNT SIX

NEGLIGENCE

40. Southern Energy incorporates and realleges the answers to the preceding 

paragraphs as if fully set forth herein. 

41. Southern Energy denies the allegations in this paragraph of the Complaint. 

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42. Southern Energy denies the allegations in this paragraph of the Complaint. 

43. Southern Energy denies the allegations in this paragraph of the Complaint. 

44. Southern Energy denies the allegations in this paragraph of the Complaint. 

Southern Energy denies that plaintiff is entitled to any relief whatsoever. 

COUNT SEVEN

WANTON

45. Southern Energy incorporates and realleges the answers to the preceding 

paragraphs as if fully set forth herein. 

46. Southern Energy denies the allegations in this paragraph of the Complaint. 

47. Southern Energy denies the allegations in this paragraph of the Complaint. 

48. Southern Energy denies the allegations in this paragraph of the Complaint. 

Southern Energy denies that plaintiff is entitled to any relief whatsoever. 

COUNT EIGHT

UNJUST ENRICHMENT

49. Southern Energy incorporates and realleges the answers to the preceding 

paragraphs as if fully set forth herein. 

50. Southern Energy denies the allegations in this paragraph of the Complaint. 

51. Southern Energy denies the allegations in this paragraph of the Complaint. 

Southern Energy denies that plaintiff is entitled to any relief whatsoever. 

COUNT NINE

FRAUDULENT CONCEALMENT

52. Southern Energy incorporates and realleges the answers to the preceding 

paragraphs as if fully set forth herein. 

53. Southern Energy denies the allegations in this paragraph of the Complaint. 

54. Southern Energy denies the allegations in this paragraph of the Complaint. 

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55. Southern Energy denies the allegations in this paragraph of the Complaint. 

56. Southern Energy denies the allegations in this paragraph of the Complaint. 

57. Southern Energy denies the allegations in this paragraph of the Complaint. 

Southern Energy denies that plaintiff is entitled to any relief whatsoever. 

COUNT TEN

NEGLIGENT/WANTON FRAUDULENT CONCEALMENT

58. Southern Energy incorporates and realleges the answers to the preceding 

paragraphs as if fully set forth herein. 

59. Southern Energy denies the allegations in this paragraph of the Complaint. 

60. Southern Energy denies the allegations in this paragraph of the Complaint. 

61. Southern Energy denies the allegations in this paragraph of the Complaint. 

Southern Energy denies that plaintiff is entitled to any relief whatsoever. 

COUNT ELEVEN

ALABAMA EXTENDED MANUFATURERS LIBAILITY DOCTRINE

62. Southern Energy incorporates and realleges the answers to the preceding 

paragraphs as if fully set forth herein. 

63. Southern Energy admits that it is in the business of manufacturing manufactured 

homes. Southern Energy has insufficient knowledge or information to either admit or deny the 

remaining allegations of this paragraph of the Complaint. 

64. Southern Energy admits that it manufactured a manufactured home with serial 

number 38810-AB. 

65. Southern Energy has insufficient knowledge or information to either admit or 

deny the allegations in this paragraph of the Complaint. 

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66. Southern Energy has insufficient knowledge or information to either admit or 

deny the allegations in this paragraph of the Complaint. 

67. Southern Energy denies the allegations in this paragraph of the Complaint. 

68. Southern Energy denies the allegations in this paragraph of the Complaint. 

Southern Energy denies that plaintiff is entitled to any relief whatsoever. 

AFFIRMATIVE DEFENSES

 1. The plaintiff has not met all conditions precedent to the filing of the claims set 

forth in this suit. 

 2. The Complaint fails to state a claim upon which relief may be granted. 

 3. Defendant pleads the provisions and limitations of any applicable warranty. 

 4. Defendant pleads the applicable provisions of the Alabama Uniform Commercial 

Code and the limitations contained therein. 

 5. The claims asserted by the plaintiff were proximately contributed to by the 

conduct of the plaintiff, thereby barring any recovery. 

 6. The claims asserted by the plaintiff resulted from intervening and superseding 

causes, thereby barring any recovery by the plaintiff. 

 7. Defendant pleads the applicable provisions and limitations of any written contract 

entered into by the plaintiff relating to plaintiff’s purchase of the home which forms the basis of 

this suit. 

 8. The Complaint should be dismissed or this action should be stayed because the 

parties and/or all claims are subject to a pre-dispute binding arbitration agreement. 

 9. Plaintiff’s claims are barred, in whole or in part, by the applicable statutes of 

limitations and/or repose. 

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 10. Plaintiff’s claims are barred due to plaintiff’s contributory negligence. 

 11. The plaintiff is not legally entitled to attorneys’ fees, costs, or interest. 

 12. Imposition of mental anguish damages, without any accompanying physical or 

bodily injury, under provisions of Alabama law governing the right to recover such damages or 

the determination of the amount of such damages, violates the Fifth and Fourteenth Amendments 

to the United States Constitution and/or the common law and/or the public policies of the United 

States on the following grounds: 

 (a) The procedures pursuant to which such damages are awarded fail to 

provide a reasonable limit on the amount of such damages against a defendant, which violates a 

defendant’s rights to due process as guaranteed by the United States Constitution. 

(b) The procedures pursuant to which such damages are awarded fail to 

provide specific standards for the award of such damages, which violates the Due Process Clause 

of the Fourteenth Amendment of the United States Constitution. 

 (c) Plaintiff’s claim for such damages against this defendant cannot be 

sustained because an award of such damages under Alabama law is subject to no predetermined 

limit or any guidelines of any sort on the amount of such damages that a trier of fact may impose, 

and will violate this defendant’s due process and equal protection rights as guaranteed by the 

Fifth and Fourteenth Amendments to the United States Constitution. 

 (d) Plaintiff’s claim for such damages against this defendant cannot be 

sustained because any award of such damages under Alabama law would violate this defendant’s 

due process rights in as much as a trier of fact is allowed to award such damages as the trier of 

fact sees fit or as a matter of “moral discretion” without adequate or specific standards as to any 

actual injury or harm. 

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 (e) Plaintiff’s claim of such damages, and the provisions of Alabama law 

governing the right to recover such damages or the determination of such damages, are 

unconstitutionally vague, indefinite and uncertain, and they deprive this defendant of due process 

of law. 

 (f) Plaintiff’s claim of such damages, and the provisions of Alabama law 

governing the right to recover such damages or the determination of such damages, causes this 

defendant to be treated differently from other similarly situated persons/entities by subjecting 

this defendant to liability beyond the actual loss, if any, caused by this defendant’s conduct, if 

any, and to liability determined without clearly defined principles, standards and limits on the 

amount of such awards. 

 (g) The procedures pursuant to which mental anguish damages are awarded 

subject this defendant to liability for the conduct of others through vicarious liability, respondeat 

superior, or through non-apportionment of damages among alleged joint tortfeasors in 

connection with the respective enormity of their alleged misconduct, in violation of this 

defendant’s due process rights and the Fifth and Fourteenth Amendments to the United States 

Constitution. 

 (h) Plaintiff’s claim for such damages, and the provisions of Alabama laws 

governing the right to recover such damages or the determination of such damages, exposes this 

defendant to the risk of indefinable, unlimited liability unrelated to the actual loss caused by this 

defendant’s alleged conduct, creating a chilling effect on defendant’s exercise of its rights to a 

judicial resolution of this dispute. 

 (i) An award of such damages in this case would constitute a deprivation of 

property without due process of law. 

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 (j) The procedures pursuant to which such damages are awarded are not 

rationally related to legitimate government interests. 

 13. Plaintiff’s claim to mental anguish or emotional distress damages without any 

accompanying physical or bodily injury, and the provisions of Alabama law governing the right 

to recover such damages or the determination of the amount of such damages, violate the 

Alabama Constitution and/or the common law or public policies of Alabama on the following 

grounds: 

 (a) The procedures pursuant to which such damages are awarded fail to 

provide a reasonable limit on the amount of such damages against a defendant in violation of this 

defendant’s due process rights guaranteed by the Alabama Constitution. 

 (b) The procedures pursuant to which such damages are awarded and liability 

is ignored are unconstitutionally vague, indefinite and uncertain, and they deprive this defendant 

of due process of law in violation of the Alabama Constitution. 

 (c) The procedures pursuant to which such damages are awarded fail to 

provide specific standards for the amount of an award of damages and deprive this defendant of 

due process of law in violation of the Alabama Constitution. 

 (d) An award of such damages in this case would constitute a deprivation of 

property without due process of law. 

 (e) The procedures pursuant to which such damages are awarded cause this 

defendant to be treated differently from other similarly situate persons and/or entities by 

subjecting this defendant to liability beyond the actual loss or harm, if any, caused by this 

defendant’s conduct and to liability determined without clearly defined principles, standards and 

limits on the amount of such awards. 

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 (f) The procedures pursuant to which such damages are awarded may result 

in the imposition of different or disparate penalties for the same or similar conduct, which denies 

this defendant of its rights of equal protection and due process. 

 (g) The procedures pursuant to which such damages are awarded subject this 

defendant to liability for the conduct of others through vicarious liability, respondeat superior, or 

through non-apportionment of damages among allegedly joint tortfeasors with respect to the 

respective enormity of their alleged misconduct, in violation of defendant’s due process rights 

and Article I, § § 1, 6, 13 and 22 of the Alabama Constitution. 

 (h) The procedures pursuant to which such damages are awarded expose this 

defendant to the risk of indefinable, unlimited liability unrelated to the actual loss caused by this 

defendant’s conduct, creating a chilling effect on the defendant’s exercise of its right to a judicial 

resolution of this dispute. 

 (i) The procedures pursuant to which such damages are awarded are not 

rationally related to legitimate government interests. 

 (j) Plaintiff’s claim for such damages against this defendant cannot be 

sustained because an award of such damages under Alabama law subject it to no predetermined 

limit or any guidelines of any sort on the amount of such damages that a trier of fact may impose, 

and will violate this defendant’s due process and equal protection rights guaranteed by the 

Alabama Constitution. Further, to allow such an award would be improper under the common 

law and/or public policies of the State of Alabama. 

 (k) Plaintiff’s claim for such damages against this defendant cannot be 

sustained because any award of such damages under Alabama law would violate this defendant’s 

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due process rights, inasmuch as a trier of fact is allowed to award such damages as the trier of 

fact sees fit or as a matter of “moral discretion” without adequate or specific standards. 

 14. In the calculation of any appropriate multiple of compensatory damages for 

punitive damages against this defendant, the use of any mental anguish damages, without any 

accompanying physical or bodily injury to plaintiff, in connection with an alleged claim, would 

be unjust and violate the Due Process Clause and Equal Protection Clause of the 5th, 8th and 14th

Amendments to the United States Constitution, and the relevant provisions of the Alabama 

Constitution, inasmuch as mental anguish damages are so highly speculative that they do not 

provide compensatory damages sufficient to support a multiple of punitive damages appropriate 

under BMW v. Gore, and its progeny. 

 15. Plaintiff’s claim for mental anguish or emotional distress damages, without 

accompanying physical or bodily injury, is barred because an award of such damages under 

Alabama law would constitute an impermissible burden on interstate commerce in violation of 

the Commerce Clause of the United States Constitution. 

 16. This defendant asserts that the plaintiff’s claims are completely pre-empted by the 

Carmack Amendment. 

 17. The imposition of mental anguish or emotional distress damages, without any 

accompanying physical or bodily injury to plaintiff, cannot be upheld because such claims 

require no proof of actual damage, and are unrelated to the actual conduct of this or any other 

defendant. As such, these damages violate this defendant’s due process rights guaranteed by the 

United States Constitution and by the due process provisions of the Alabama Constitution. 

 18. The imposition of mental anguish or emotion distress damages, without any 

accompanying physical or bodily injury to plaintiff, in connection with an alleged breach of 

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warranty or contract, would be unjust and inconsistent with Alabama common law and statutory 

law controlling the recovery of damages for claims involving any warranty, tort and economic 

loss. See, e.g., Ala. Code Section 7-2-715; Lloyd Wood Coal Co. v. Clark Equipment Co.,543 

So. 2d 671 (Ala. 1989), Ford Motor Co. v. Rice, 726 So. 2d 626 (Ala. 1998), and Ex parte 

Grand Manor, 2000 WL 337528 (Ala. 3/31/2000). 

 19. The imposition of mental anguish or emotional distress damages, without any 

accompanying physical or bodily injury to plaintiff, in connection with an alleged breach of 

warranty or contract, would be unjust inasmuch as it would be wholly inconsistent with 

prevailing principles of common law and statutory law throughout the nation. If the Alabama 

common law and statutes were construed as authorizing such a recovery, then the law would be 

unjust and should be conformed by the courts of this state to a more just result. See, e.g., 

Restatement of the Law of Contracts, Section 353. 

 20. Recovery for any alleged negligence or other tortious conduct (including, without 

limitation) in manufacturing, sale, delivery, set-up, repair, training, or supervision, without any 

accompanying physical or bodily injury to plaintiff, would be unjust and inconsistent with 

Alabama common law and statutory law controlling the recovery of damages for claims 

involving warranty, tort and economic loss. See, e.g., Ala. Code Section 7-2-715; Lloyd Wood 

Coal Co., et al., above.

 21. The imposition of mental anguish or emotional distress damages, without any 

accompanying physical or bodily injury to plaintiff, in connection with an alleged breach of 

warranty or contract, would be unjust inasmuch as the law of Alabama prohibits mental anguish 

awards for tortious conduct, without any accompanying physical or bodily injury to the 

plaintiffs, unless plaintiff was within a zone of physical danger. See, e.g., White Consolidated 

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Industries, Inc. v. Wilkerson, 737 So. 2d 447 (Ala. 1999). This would present the unjust 

situation in which a plaintiff could not recover for alleged mental anguish when a defendant acts 

with the scienter of negligence or wantonness, but could recover for violation of a breach of 

warranty or contract in which the defendant need not have acted with any scienter. 

 22. The Plaintiff has failed to exercise such care as a reasonably prudent person 

would have exercised under the circumstances to reduce or mitigate plaintiff’s damages (if any), 

and the plaintiff’s recovery, if any, must be limited to such damages as would have been 

sustained had such care been exercised. 

 23. Plaintiff’s lack of privity of contract bars any implied warranty-related claims 

against this defendant. The lack of privity, and the failure of plaintiff to provide notice of special 

circumstances to support an award of consequential damages, bars plaintiff from recovering 

mental anguish damages. 

 24. The claims of the plaintiff are barred and/or limited by the doctrine of economic 

waste and/or the economic loss rule. 

 25. Any award of punitive damages to the plaintiff and against defendant in this case 

would be violative of the constitutional safeguards provided to the defendant under the 

Constitution of the United States of America. 

 26. Any award of punitive damages to the plaintiff and against defendant in this case 

would be violative of the constitutional safeguards provided to the defendant under the Due 

Process clause of the Fourteenth Amendment to the Constitution of the United States, in that the 

determination of punitive damages under Alabama law is vague, is not based upon any objective 

standards, is in fact standardless, and is not rationally related to any legitimate governmental 

interest. 

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27. Any award of punitive damages to the plaintiff and against this defendant in this 

case would be violative of Article I, Section 6 of the Constitution of the State of Alabama, in that 

the process by which punitive damages are awarded, and are reviewed under Alabama law, is 

vague, is without any objective standards, and is in fact without any standards, and is not 

rationally related to any legitimate governmental interest. 

28. Any award of punitive damages to the plaintiff and against this defendant in this 

case would be violative of the constitutional safeguards provided to the defendant under the Due 

Process Clause of the Fourteenth Amendment to the Constitution of the United States, and under 

Article I, Section 6 of the State of Alabama, for the following additional reasons: The process by 

which, under Alabama Law, claims of punitive damages are submitted to triers of fact, and, if 

awarded, are subject to review by the Trial and Appellate Courts of the State of Alabama, in 

cases where punitive damages are awarded against a principal as a result of the acts of its agent, 

are colorably subject to the provisions of §§ 6-11-20 and 6-11-27, Alabama Code 1975. In 

practice, punitive damages are awarded, and such awards are affirmed upon trial and appellate 

review, in disregard of said code sections, in violation of the above-cited constitutional 

provision, and of public policy. 

 29. Plaintiff’s claim for punitive damages is limited to the amount recoverable as set 

forth in § 6-11-21, Ala. Code, 1975. This defendant intends to challenge the ruling stated in 

Henderson v. Alabama Power Co., 627 So. 2d 878 (Ala. 1993). This defendant pleads all 

applicable statutes limiting the award of punitive damages. 

 30. Mental anguish damages are unconstitutional because they are remote and 

metaphysical in nature; they are more sentimental than substantial; depending largely on physical 

and nervous condition, the suffering of one under precisely the same circumstances would be no 

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test of the suffering of another (i.e. they are too subjective); vague and shadowy, there is no 

possible standard by which such an injury can be justly compensated or even approximately 

measured; they easily fall within all the objections to speculative damages, which are universally 

excluded because of their uncertain character; such damages are so imaginary, so metaphysical, 

and so sentimental, that it is likely any award by a finder of fact would be made to punish the 

defendant and not to compensate the plaintiff. 

 31. The award of discretionary, compensatory damages for mental suffering on behalf 

of plaintiff violates the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments of the 

Constitution of the United States because there are no fixed standards for the ascertainment of 

compensatory damages recoverable for mental suffering. The amount of damage for such a 

claim is left to the sound discretion of the trier of fact with no specific, much less objective, 

standard for the amount of the award. Therefore, the procedure pursuant to which compensatory 

damages for mental suffering are awarded violates the Constitution because: 

 (a) it fails to provide a reasonable limit on the amount of the award against 

Defendant, which thereby violates the due process clause of the Fourteenth Amendment of the 

Constitution of the United States; 

 (b) it fails to provide specific standards for the amount of the award of 

compensation, which thereby violates the due process clause of the Fourteenth Amendment of 

the United States Constitution; 

 (c) it results in the imposition of different compensation for the same similar 

acts and, thus, violates the equal protection clause of the Fourteenth Amendment of the United 

States Constitution; and, 

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 (d) it constitutes deprivation of property without due process of law required 

under the Fifth and Fourteenth Amendments of the United States Constitution. 

 32. The award of discretionary compensatory damages for mental suffering to the 

plaintiff violates the due process clause of Article I, Section 6 of the Constitution of Alabama 

because it fails to provide a limit on the amount of the award against this Defendant, it is 

unconstitutionally vague, it fails to provide specific standards in the amount of the award of such 

damages, and, it constitutes a deprivation of property without the due process of law. 

33. Plaintiff failed to provide adequate notice of any alleged breach of warranty. 

 34. To the extent repairs were made by or on behalf of this defendant, they were made 

correctly and accepted by the plaintiff. 

 35. Defendant was not given a reasonable opportunity to cure the alleged defects. 

 36. Defendant breached no duty owed to the plaintiff. 

 37. Defendant’s obligations to the plaintiff are limited by the terms of its Limited 

Warranty. 

 38. The plaintiff’s remedies against this defendant are limited by the terms of the 

Limited Warranty upon which plaintiff has brought suit against this defendant. 

 39. Defendant pleads estoppel. 

 40. Defendant pleads waiver. 

 41. Defendant did not violate the provisions of the Magnuson Moss Warranty Act. 

 42. The Judiciary of Alabama violated the Separation of Powers Doctrine when it 

invented a common law rule permitting mental anguish damages in home and automobile cases 

involving breaches of warranties and/or contracts. Such rule is unconstitutional. 

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 43. The award of mental anguish damages in a contract or warranty action is 

unconstitutional because it denies a defendant procedural and substantive due process. Alabama 

law and judicial practices foreclose the discovery and introduction into evidence of relevant 

evidence concerning a plaintiff’s mental state for a variety of reasons: 

 (a) Alabama’s statutory privilege precludes the discovery of relevant 

psychiatric records of a plaintiff. 

 (b) Alabama’s two-tiered appellate standard concerning mental anguish favors 

unreliable and unchallengeable anecdotal testimony of a plaintiff concerning mental anguish, as 

opposed to reliable expert evidence. 

 (c) Alabama trial courts routinely preclude a defendant from having plaintiff’s 

mental conditions properly evaluated. Defendant is thus foreclosed from obtaining expert 

evidence to oppose mental anguish claims. 

 44. Mental anguish is a consequential/special damage, not a general damage. As 

such, it must be specially pleaded and proven, which plaintiff has not and cannot do. 

 45. Defendant’s Limited Warranty disclaims all consequential damages -- including 

mental anguish. 

 46. Alabama’s mental anguish rule in contract and warranty actions violates the Rule 

of Reasonable Certainty. 

 47. The award of mental anguish damages in contract and warranty actions involving 

manufactured homes adversely effects interstate commerce. Such a rule violates the “dormant” 

commerce clause. 

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 48. The Restatement 2d of Contracts precludes the award of mental anguish damages 

in contract or warranty cases involving homes, absent actual physical harm. Alabama should 

adopt the Restatement Rule. 

 49. Alabama’s mental anguish rule violates the equal protection clauses of the United 

States and Alabama Constitutions because it singles-out contract and warranty transactions 

involving only new automobiles and homes. 

 50. The recent evolution of Alabama tort standards, including the adoption of (a) the 

zone of danger rule; (b) the tort of outrage; and (c) the tort of bad faith, which finally bring 

Alabama into the mainstream of modern jurisprudence, render Alabama’s mental anguish rule 

irrelevant, outdated, unnecessary and illegal. 

 51. Alabama’s mental anguish rule is unconstitutionally vague because it fails to 

adequately identify or predict which contracts or warranties may be subject to that rule, or the 

amount of damages that might be awarded in any given case. 

 52. Alabama’s mental anguish rule violates Alabama’s adoption of Hadley v. 

Baxendale. 

 53. Alabama’s mental anguish rule violates BMW v. Gore. 

 54. Plaintiff has failed to exhaust administrative remedies. 

 55. Defendant pleads lack of cooperation. 

 56. To the extent any implied warranties would apply to plaintiff, such warranties 

were disclaimed by defendant. 

 57. Federal construction standards preempt any other building standards for the 

subject home, and the home was constructed in accordance with such standards. 

58. An agent of the federal government certified the defendant’s compliance with all 

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applicable standards of care prior to sale. 

 59. Defendant pleads fraud, license, arbitration, payment, release and statute of 

frauds. 

 60. The plaintiff made no timely written claim, under the warranty, to defendant 

which was not honored. 

 61. The damages claimed by plaintiff exceed the limits of defendant’s liability under 

the warranty. 

 62. Plaintiff has not mitigated damages. 

 63. Plaintiff improperly maintained and used the home. 

 64. This defendant has no pre-sale discussions or communications with plaintiff 

regarding the home; therefore, plaintiff cannot maintain fraud or breach of implied warranty of 

fitness claims against defendant. 

 65. Plaintiff has no contract with defendant; therefore, plaintiff cannot maintain a 

fraud claim against defendant because plaintiff cannot show reliance. 

 66. All implied warranties were waived. State law merchantability claims are 

preempted by HUD Code sections 3280 and 3282, and are otherwise barred by the absence of 

privity. 

 67. Plaintiff cannot simultaneously maintain a breach of warranty claim with tort 

claims for negligence and wantonness. Tort claims are merged into warranty claims. The only 

duty owed by defendant is set forth in the limited warranty. No natural law duties exist. 

 68. Defendant undertook no fiduciary duties with respect to plaintiff. 

69. Plaintiff accepted the goods under the U.C.C. 

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 70. There is no warranty of habitability applicable to a manufactured home because it 

is personalty, not realty, and it is subject to the U.C.C. 

 71. Defendant pleads as defenses the HUD Code 24 CFR §§ 3280, 3282 and 3283. 

 72. Plaintiff’s claims are barred by the doctrine of proximate cause. 

 73. Plaintiff’s claims are barred because the injuries allegedly sustained by plaintiff 

was not proximately caused by any act or omission of Defendant. 

 74. Plaintiff’s claims are barred due to contributory negligence. 

 75. Plaintiff’s alleged injuries and damages, if any, were caused in whole or in part by 

the acts and omissions of third parties over whom Defendant had no authority or control. 

 76. Plaintiff’s claims are barred by the equitable doctrines of laches. 

 77. Plaintiff’s claims are barred, in whole or in part, by the doctrines of merger, 

collateral estoppel, res judicata, release, discharge, and accord and satisfaction. 

 78. Defendant is not liable for any acts or omissions of any third party. 

79. Plaintiff has failed to plead fraud with the requisite degree of specificity required 

by Rule 9(b) of the Federal Rules of Civil Procedure. 

80. To award plaintiff damages for alleged mental anguish or emotional distress in the 

absence of any standards for the determination of mental anguish or emotional distress and/or the 

absence of any requirement for corroborating or objective evidence of mental anguish or 

emotional distress makes such an award tantamount to punitive damages. As such, Defendant 

avers that such an award in this case would violate the safeguards provided to Defendant under 

both the Alabama Constitution and the United States Constitution. 

81. Defendant pleads the general issue. 

Exhibit A Case 2:06-cv-00618-MEF-SRW Document 18-2 Filed 12/18/2006 Page 21 of 24
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82. No punitive damages are warranted or allowable that would exceed comparable 

maximums established for criminal fines. 

83. Any award of punitive damages is barred by Ala. Code § 6-11-20 (1993) et seq., 

and by Ala. Code § 6-1 1-27 (1993). 

84. To the extent that any demand by plaintiff for punitive damages may result in 

multiple punitive damage awards being assessed for the same act or omission against Defendant, 

this award contravenes Defendant’s right to due process under the Due Process Clause of Article 

1, Section 13 of the Alabama Constitution. In addition, such awards would infringe upon 

Defendant’s rights against double jeopardy insured by the Fifth Amendment of the United States 

Constitution and/or Article 1, Section 9 of the Alabama Constitution. 

 85. The procedures pursuant to which punitive damages are awarded expose civil 

defendants to the risk of indefinable, unlimited liability unrelated to actual loss, if any, caused by 

their conduct, creating a chilling effect on the defendants’ exercise of the right to a judicial 

resolution of this dispute. 

 86. The mobile home dealer accepted the home from defendant in good and 

merchantable condition. The mobile home dealer inspected the home and found it to be in 

compliance with all applicable laws prior to the sale to the plaintiff. 

 87. Defendant did not promise or otherwise agree to convey title of the home to 

plaintiff. Defendant timely submitted a certificate of origin to the home dealer, in accordance 

with applicable law. 

 88. Defendant pleads the affirmative defenses of impossibility and impracticality of 

performance. 

Exhibit A Case 2:06-cv-00618-MEF-SRW Document 18-2 Filed 12/18/2006 Page 22 of 24
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 89. Plaintiff has failed to plead with the requisite degree of specificity sufficient facts 

entitling him invoke the tolling provisions of Alabama Code § 6-2-3. 

 90. Defendant asserts that it was not the “seller” of the mobile home at issue. 

 91. All standards of care are preempted by federal law. 

 92. Defendant pleads federal preemption. 

 93. Federal construction standards preempt any other building standards and/or 

common law. 

 94. 24 C.F.R.§ 3280.103 is an unreasonable application of congressional intent under 

Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.E.2d 

694 (1984). 

WHEREFORE, Southern Energy prays for relief and judgment against plaintiff as 

follows: 

A. That plaintiff takes nothing by reason of the Complaint; 

B. That this action be dismissed with prejudice; 

C. That Southern Energy recovers its fees, costs and attorneys’ fees incurred herein; and 

D. Such further and other relief as the Court deems proper. 

Respectfully submitted, 

 /s Mitchel H. Boles 

 Robert D. Segall (SEG003) 

 Mitchel H. Boles (BOL026) 

Copeland, Franco, Screws & Gill, P.A. 

444 South Perry Street 

P. O. Box 347 

Montgomery, AL 36101-0347

Phone: 334/834-1180 

Facsimile: 334/834-3172 

Attorney for Southern Energy Homes, Inc. 

Exhibit A Case 2:06-cv-00618-MEF-SRW Document 18-2 Filed 12/18/2006 Page 23 of 24
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CERTIFICATE OF SERVICE

 I hereby certify that on the 18th day of December, 2006, I electronically filed the 

foregoing with the Clerk of the Court using the CM/ECF system which will send notification of 

such filing to the following: 

• Charles Lance Gould

lance.gould@beasleyallen.com holly.stroh@beasleyallen.com 

• Carter Gibson Vance

gibson.vance@beasleyallen.com heidi.bowers@beasleyallen.com 

/s Mitchel H. Boles 

Of Counsel 

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