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«ELECTRONICALLY FILED 4/22/2014 2:23 PM 01-CV-2013-904090.00 CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA ANNE-MARIE ADAMS, CLERK IN THE CIRCUIT COURT ...»

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Goodrich Co. v. Hughes, 194 So. 842, 847 (Ala. 1940); Gregath v. Bates, 359 So. 2d 404, 409 (Ala. Civ. App. 1978). In Gregath, plaintiffs sued the owners of two hog parlors located near plaintiffs’ home. Id. at 406. Plaintiffs alleged that odors, flies, and contaminated water from the hog parlors were coming onto their property causing them to be sick and leaving their nervous systems shattered. Id. In considering plaintiffs’ request for damages related to their alleged

physical and mental suffering, the court stated:

–  –  –

Id. at 409 (emphasis added and internal citations omitted). The Court in Hughes reached the same conclusion. In that case, plaintiff sued for trespass and conversion of an automobile. 194 So. at 845. Plaintiff claimed damages for medical expenses associated with his physical and mental symptoms arising from the alleged wrong committed against his property. Id. The Court

held that such damages were not recoverable, stating:

–  –  –

Id. at 847 (internal citations omitted).

Essentially, the courts in Hughes and Gregath concluded that damages for nervous reactions (i.e., physical symptoms resulting solely from mental anguish) are only recoverable if, under Alabama law, damages could be recovered for the underlying mental anguish. See Hughes, 194 So. at 847; Gregath, 359 So. 2d at 409. Based on the allegations in the complaint, to the extent plaintiffs in this case are alleging any physical symptoms, those alleged symptoms appear to solely arise, if at all, from plaintiffs’ claimed mental anguish in connection with damage to their property. Thus, under Hughes and Gregath, plaintiffs cannot recover any damages for those alleged symptoms.

Yarber was in California and Whitfield was at his girlfriend’s home in Vestavia Hills, Alabama, when the crash occurred. (P. Yarber Answers to Interrogs., Resp. Interrog. No. 5; C.

Whitfield Answers to Interrogs., Resp. Interrog. No. 5.) Therefore, they could not have been physically injured in connection with the crash. Accordingly, any physical bodily injury they are alleging would necessarily be limited to physical symptoms solely caused by mental anguish relating to property damage. As discussed above, Yarber and Whitfield cannot recover any damages for that alleged, underlying mental anguish. Any physical symptoms they allegedly have as a result of their professed emotional reaction to the property damage would constitute nervous reactions under Hughes and Gregath for which damages are not recoverable. As discussed above, based on the allegations in the complaint and the absence of any evidence of physical injuries suffered by the Bensons in connection with the crash, the only physical symptoms it appears the Bensons could arguably have would also be the kind of nervous reactions discussed in Hughes and Gregath for which no damages are recoverable.

For the foregoing reasons, UPS is entitled to partial summary judgment with respect to any demand for damages based on physical symptoms allegedly suffered by plaintiffs.

WHEREFORE, UPS respectfully requests that the Court enter partial summary judgment in favor of UPS with respect to (a) plaintiffs’ claims for mental anguish and (b) any demand by plaintiffs for damages associated with mental anguish or alleged physical symptoms resulting solely from claimed mental anguish.

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OF COUNSEL:

F&B LAW FIRM, P.C.

213 Greene Street Huntsville, Alabama 35801 Telephone Number: (256) 536-0095 Facsimile Number: (256) 536-4440 E-mail: court@fb-pc.com

CERTIFICATE OF SERVICE

I hereby certify that on the 22nd day of April, 2014, I electronically filed the foregoing with the Clerk of Court using the Alacourt/Alafile system which will send notification of such

filing to the following:

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