Lang v. Cabela’s Wholesale, LLC, [Ms. 1200851, June 24, 2022] __ So. 3d __ (Ala. 2022). The Court (Parker, C.J.; Wise, Bryan, Stewart, and Mitchell, JJ., concur; Shaw, J., concurs in part and dissents in part; Sellers, J., concurs in part and dissents in part, which Bolin, J., joins; Mendheim, J., concurs in the result) reverses the Lawrence Circuit Court’s summary judgment in favor of Cabela’s Wholesale, LLC (“Cabela’s”) dismissing Larry Lang’s product-liability action against Cabela’s based on the alleged failure of a hunting tree stand. The circuit court dismissed the action based on the innocent-seller act, § 6-5-521(b)-(d), Ala. Code 1975.
The Court first notes that it “may not exercise the legislative or executive power,” Art. III, § 42(c) [and] ... [f]idelity to this separation-of-powers precept requires us to determine and adhere to the meaning of the statute’s text, even if doing so leads to an inefficient or undesirable result.” Ms. **8-9.
Lang argued that, under the procedure set forth in subsection (d) of the statute, he had no duty to attempt to add the manufacturer as a defendant and then to dismiss Cabela’s because when Cabela’s served its April 2019 interrogatory answers identifying the manufacturer, such did not constitute “fil[ing] an affidavit[,]” and that when Cabela’s filed its affidavit identifying the manufacturer more than two years later that was too late to qualify as filing “upon answering or otherwise pleading[,]” as required by subsection (d). Ms. *8. The Court agrees and holds,
[S]ubsection (d)’s first element requires that the identification be “file[d].” In the sense in which the word is used in subsection (d), “file” means “[t]o deliver a legal document to the court clerk or record custodian for placement into the official record.” File, Black’s Law Dictionary (9th ed. 2009). It is undisputed that Cabela’s did not file the responses in the circuit court prior to judgment, but simply served them on Lang. Indeed, interrogatories are a discovery device between parties. See Rule 26(a), Ala. R. Civ. P. Thus, interrogatories and responses to them must be served on the appropriate party, see Rule 33(a), but ordinarily are not filed with the trial court.
The Court further holds
[T]he words “upon answering or otherwise pleading” do not mean merely “at some time after pleading”; they mean that the seller must file the requisite affidavit contemporaneously with or promptly after its responsive pleading. Here, Cabela’s did not file its affidavit identifying the manufacturer until more than two years after it filed its answer, well beyond the time for doing so. Thus, the filing of that affidavit did not trigger Lang’s obligations under subsection (d).
Ms. *16. The Court notes that a seller of a product “can move for an extension of time to answer, see Rule 6(b), Ala. R. Civ. P., and for pre-answer discovery to determine the manufacturer’s identity.…” Ms. *15.
Finally, the Court affirms the summary judgment as to the claims against Cabela’s as manufacturer and designer of the tree stand as Lang failed to present evidence supporting those claims. Ms. *19.