Improper Rule 54(b) Certification of Finality

Smith v. NIBCO, Inc., [Ms. 1210066, Sep. 2, 2022] __ So. 3d __ (Ala. 2022). The Court (Mendheim, J.; Parker, C.J., and Shaw, Wise, Bryan, Sellers, Stewart, and Mitchell, JJ., concur; Bolin, J., concurs in the result) holds the Shelby Circuit Court exceeded its discretion in certifying as final its summary- judgment order dismissing claims against NIBCO, Inc. arising from the failure of the plumbing system in the Plaintiff’s home. NIBCO manufactured the polyethylene (“PEX”) tubing in the home. Ms. *2. The homeowners, Martha Lynne and Kevin Andre Smith, also sued D.R. Horton and Dupree Plumbing Co., Inc. alleging defective installation of the plumbing system. Ms. **4-5.

The Court concludes the claims against NIBCO were intertwined with the pending claims against the other defendants rendering the Rule 54(b) certification improper:

In asserting their claims against the defendants, the Smiths specifically alleged that the conduct of D.R. Horton and Dupree Plumbing “combined and concurred with the wrongful conduct of NIBCO ... to produce the injuries and damages heretofore described in the original complaint.” The theory of the Smiths’ case against the defendants is that the defendants’ conduct combined to cause the damage allegedly suffered by the Smiths. Of course, in presenting their defenses, the individual defendants will submit evidence indicating that their individual conduct was not the cause of the Smiths’ injuries. Given the Smiths’ assertion that the defendants’ combined conduct caused their injuries, it is not unforeseeable that evidence tending to exonerate one defendant of liability is likely to implicate another of the defendants.

Ms. *13.

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