Alabama Powersport Auction, LLC v. Wiese, [Ms. 1120007, Nov. 8, 2013] __ So. 3d __(Ala. 2013). In response to a Rule 5, Ala. R. App. P., interlocutory appeal, the Court holds pursuant to Geohagan v. General Motors Corp. 291 Ala. 167, 279 So.2d 436 (1973), that a plaintiff may not maintain an action for wrongful death based upon a breach of an implied warranty. The Court clarifies that nothing in Sledge v. IC Corporation, 47 So.3d 243 (Ala. 2010), should be read as overruling that express holding in Geohagan. The Court also considered:
Whether an auctioneer selling consigned goods on behalf of a seller may be held liable under Alabama's version of the Uniform Commercial Code as a merchant-seller for a breach of an implied warranty of merchantability?Following the holding in Benefield v. Aquaslide 'N' Dive Corp., 406 So.2d 873 (Ala. 1981), the Court held that a breach of warranty (contract) claim is a separate and distinct claim from a wrongful death (tort) claim which affords compensatory damages, not for the wrongful death of the decedent, but for the injuries suffered before the death. An auctioneer constitutes a "seller" within the meaning of ¤ 7-2-103(1)(D) ("A person who sells or contracts to sell goods"). An implied warranty of merchantability exists if there is a "seller," as defined in ¤ 7-2-103, who is a "merchant with respect to goods of that kind." Section 7-2-314(1), Ala. Code 1975. An auctioneer is "a merchant with respect to goods of that kind" following the holdings in Bradford v. Northwest Alabama Livestock Ass'n, 379 So.2d 609, 611 (Ala. Civ. App. 1980), and Powers v. Coffeyville Livestock Sales Co., 665 F.2d 311 (10th Cir. 1981).
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