Old Carco LLC and RJM I, LLC, as Liquidation Trustee for Old Carco L

UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
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In re: 	: 	Chapter 11
:
OLD CARCO LLC, et al., 	: 	Case No. 09-50002 (SMB)
:
Debtors. 	: 	Jointly Administered
:
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MEMORANDUM DECISION GRANTING IN PART AND DENYING
IN PART FCA US LLC’S MOTION TO ENFORCE THE SALE ORDER
A P P E A R A N C E S:
SULLIVAN & CROMWELL LLP
125 Broad Street
New York, New York 10004
Brian D. Glueckstein, Esq.
Of Counsel
Attorneys for FCA US LLC
COLE SCHOTZ P.C.
1325 Avenue of the Americas
19th Floor
New York, New York 10019
Mark Tsukerman, Esq.
Of Counsel
BEASLEY, ALLEN, CROW, METHVIN,
PORTIS & MILES, P.C.
P.O. Box 4160
Montgomery, Alabama 36103
J. Parker Miller, Esq. (pro hac vice)
Stephanie Monplaisir, Esq. (pro hac vice)
Of Counsel
Attorneys for Frankie Overton, as Executor
of the Estate of Sue Ann Graham; and
Scott Graham, as legal guardian of J.G.,
a minor child
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STUART M. BERNSTEIN
United States Bankruptcy Judge
This case, which arises out of a fatal motor vehicle accident, involves the clash
between Alabama law, which limits the recovery in wrongful death actions to punitive
damages, and the terms of a Court-approved section 363 sale, which excludes the
defendant’s liability for punitive damages. FCA US LLC f/k/a/ Chrysler Group LLC
(“New Chrysler”) moves to enforce the Court’s Order (I) Authorizing the Sale of
Substantially All of the Debtors’ Assets Free and Clear of All Liens, Claims, Interests
and Encumbrances, (II) Authorizing the Assumption and Assignment of Certain
Executory Contracts and Unexpired Leases in Connection Therewith and Related
Procedures and (III) Granting Related Relief, dated June 1, 2009 (the “Sale Order”) 1
(ECF Doc. # 3232) asserting, inter alia, that certain claims alleged in the Complaint
filed in the Circuit Court of Jefferson County, Alabama (“Alabama State Court”) on
October 17, 2017 in a case styled Overton v. Chrysler Group LLC, No. 01-CV-2017-
904376.00 (“Complaint”) 2 are barred by the limitation on punitive damages. For the
reasons that follow, New Chrysler’s motion is granted in part and denied in part.
1 	A copy of the Sale Order is annexed as Exhibit A to the Declaration of Brian D. Glueckstein in
Support of FCA US LLC’s Motion to Enforce the Sale Order, dated Mar. 12, 2018 (“Glueckstein
Declaration”) (ECF Doc. # 8512). Technically, the relevant provision is contained in a post-sale
amendment discussed below and separately approved by the Court. For ease of reference, this opinion
will simply refer to the Sale Order.
2 	A copy of the Complaint is annexed as Exhibit 2 to the Declaration of J. Parker Miller in Support
of Plaintiffs’ Opposition to FCA US LLC’s Motion to Enforce the Court’s Order (I) Authorizing the Sale of
Substantially All of the Debtors’ Assets Free and Clear of All Liens, Claims, Interests and Encumbrances,
(II) Authorizing the Assumption and Assignment of Certain Executory Contracts and Unexpired Leases
in Connection Therewith and Related Procedures and (III) Granting Related Relief, dated May 4, 2018
(“Miller Declaration”) (ECF Doc. # 8523-1).
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BACKGROUND
A. 	The Bankruptcy Sale
On April 30, 2009, Old Carco LLC f/k/a Chrysler LLC (“Old Chrysler”) filed these
chapter 11 cases. That same day, Old Chrysler and New Chrysler entered into a Master
Transaction Agreement (the “MTA”) 3 by which New Chrysler agreed to purchase
substantially all of the assets of Old Chrysler. The Bankruptcy Court approved the
transaction set forth in the MTA, as amended, and the sale closed on June 10, 2009
(“Closing Date” or “Closing”).
The Sale Order authorized the transfer of the purchased assets “free and clear of
all Claims except for Assumed Liabilities” (as defined in the MTA) and free of successor
liability. (Sale Order ¶ 9.) It stated, in pertinent part:
Except for the Assumed Liabilities expressly set forth in the Purchase
Agreement or described therein or Claims against any Purchased
Company, none of the Purchaser, its successors or assigns or any of their
respective affiliates shall have any liability for any Claim that (a) arose
prior to the Closing Date, (b) relates to the production of vehicles prior to
the Closing Date or (c) otherwise is assertable against the Debtors or is
related to the Purchased Assets prior to the Closing Date. . . . Without
limiting the foregoing, the Purchaser shall not have any successor,
derivative or vicarious liabilities of any kind or character for any Claims . .
. now existing or hereafter arising, asserted or unasserted, fixed or
contingent, liquidated or unliquidated.
(Sale Order ¶ 35 (emphasis added); see also id. ¶¶ 39, 42.)
Section 2.09 of the MTA enumerated, “for the avoidance of doubt,” certain
“Excluded Liabilities” that New Chrysler did not assume. They included “all Product
3 	The MTA is attached to the Glueckstein Declaration as Exhibit B.
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Liability Claims arising from the sale of Products or Inventory prior to the Closing.”
(MTA § 2.09(i).) The MTA broadly defined an excluded Product Liability Claim as:
any Action arising out of, or otherwise relating to in any way in respect of
claims for personal injury, wrongful death or property damage resulting
from exposure to, or any other warranty claims, refunds, rebates,
property damage, product recalls, defective material claims, merchandise
returns and/or any similar claims, or any other claim or cause of action,
whether such claim is known or unknown or asserted or unasserted with
respect to, Products or items purchased, sold, consigned, marketed,
stored, delivered, distributed or transported by [Old Chrysler].
(MTA Definitions Addendum, at p. 90, as amended by Amendment No. 1 to MTA, at ¶
36.)
By Stipulation and Order, dated Nov. 19, 2009, the parties amended section
2.08(h) to the MTA to expand the scope of Assumed Liabilities relating to Product
Liability Claims. (ECF Doc. # 5988.) As amended, New Chrysler assumed liability for
post-Closing accidents involving vehicles manufactured and sold by Old Chrysler before
the Closing, but the assumption expressly excluded liability for punitive damages.
Under the amendment (“Amendment No. 4”), Assumed Liabilities included:
(i) all Product Liability Claims arising from the sale after the Closing of
Products or Inventory manufactured by Sellers or their Subsidiaries in
whole or in part prior to the Closing and (ii) all Product Liability
Claims arising from the sale on or prior to the Closing of motor
vehicles . . . solely to the extent such Product Liability Claims (A) arise
directly from motor vehicle accidents occurring on or after Closing, (B)
are not barred by any statute of limitations, (C) are not claims including
or related to any alleged exposure to any asbestos-containing material
or any other Hazardous Material and (D) do not include any claim for
exemplary or punitive damages.
(MTA, Amendment No. 4, ¶ 1 (emphasis added).) 4
4 	Copies of the November 19, 2009 Stipulation and Order and Amendment No. 4 are annexed to
the Glueckstein Declaration as Exhibit C.
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Finally, the Sale Order acknowledged New Chrysler’s obligation to comply with
the National Transportation and Motor Vehicle Safety Act (“NTMVSA”), as applicable to
the business of New Chrysler after the Closing, and New Chrysler further
agreed to assume as Assumed Liabilities under the Purchase Agreement
and this Sale Order the Debtors’ notification, remedy and other obligations
under 49 U.S.C. §§ 30116 through 30120 of the NTMVSA relating to
vehicles manufactured by the Debtors prior to the Closing Date that have a
defect related to motor vehicle safety or do not to [sic] comply with
applicable motor vehicle safety standards prescribed under the NTMVSA.
The Purchaser shall not otherwise be liable for any failure by the Debtors
to comply with the provisions of the NTMVSA.
(Sale Order ¶ EE.) Aside from any obligations that the NTMVSA might impose relating
to safety concerns, New Chrysler did not undertake a contractual obligation to repair
any defects in cars manufactured by Old Chrysler, Grimstad v. FCA US LLC (In re Old
Carco LLC), Adv. Pro. No. 16–01204 (SMB), 2017 WL 1628888, at *4 (Bankr. S.D.N.Y.
Apr. 28, 2017), except to the extent required by the factory or extended warranties, and
in those cases, New Chrysler’s obligation was limited to the cost of parts and labor.5
Burton v. Chrysler Grp., LLC (In re Old Carco LLC), 492 B.R. 392, 398 (Bankr.
S.D.N.Y. 2013).
B. 	The Complaint
On October 17, 2017, Frankie Overton (“Overton”), as administrator of the estate
of Sue Ann Graham (the “Decedent”), and Scott Graham (“Graham,” and together with
Overton, the “Plaintiffs”), as legal guardian of the Decedent’s minor son, J.G., filed the
5 	Given the age of the Vehicle at the time of the accident (approximately fifteen years), I assume
that any factory or extended warranty had expired long before the sale. In any event, the Complaint does
not assert a repair claim under a factory or extended warranty.
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Complaint in Alabama State Court against, among others, New Chrysler. 6 The subject
of the Complaint is a car accident that occurred in Alabama on June 10, 2016. The
Decedent and J.G. were riding as passengers in a 2002 Jeep Liberty (the “Jeep” or
“Vehicle”) when a vehicle driven by defendant Rodericus Obyran Carrington struck the
Jeep causing it to overturn. (Complaint ¶ 24.) The Decedent sustained fatal injuries;
J.G. sustained non-fatal injuries as well as mental and emotional injuries. (Id. ¶¶ 26,
27.)
The Plaintiffs brought claims in Alabama State Court pursuant to the Alabama
Extended Manufacturer’s Liability Doctrine (“AEMLD”) 7 and under theories of
negligence and wantonness. (See Complaint ¶¶ 29-34, 41-59.) The claims directed at
New Chrysler alleged that the proximate cause of the Plaintiffs’ injuries was the
defective design, manufacture and sale of the Vehicle, (id. ¶¶ 27, 31, 45, 52), or
alternatively, the failure to warn or recall the Vehicle despite New Chrysler’s knowledge
of the defective condition. (Id. ¶¶ 32, 47, 56.) The Complaint alleged in numerous
places that New Chrysler, among others, designed, manufactured and sold the Vehicle,
(Complaint ¶¶ 25, 30, 42, 50, 51), but this is not plausible. The Vehicle was apparently
6 	The Complaint separately named Chrysler Group LLC and FCA US LLC as defendants, but they
refer to the same entity: New Chrysler.
7 	To establish liability under the AEMLD, the plaintiff must establish that:
he suffered injury or damage[] to himself or his property by one who sells a product in a
defective condition unreasonably dangerous to the plaintiff as the ultimate user or
consumer, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change
in the condition in which it [was] sold.
Tanksley v. ProSoft Automation, Inc., 982 So.2d 1046, 1049-50 (Ala. 2007) (citations omitted).
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manufactured and sold in or around 2002, and New Chrysler did not come into
existence until the 2009 sale transaction.
Overton sought damages under the Alabama Wrongful Death Act (“AWDA,” and
collectively with its predecessors, the “Wrongful Death Act”) as a result of the death of
the Decedent (the “Overton Claims”). (See Complaint at pp. 8, 11, 14-15.) Graham, on
behalf of J.G. who survived the accident, sought compensatory damages on all of his
claims and punitive damages with respect to claims based on New Chrysler’s post-
Closing conduct (the “Graham Claims”). (Id. at pp. 8, 12, 15.)
C. 	Proceedings in Alabama
After the Complaint was filed, New Chrysler removed the action to the United
States District Court for the Northern District of Alabama, and moved to sever claims
and transfer venue and for partial dismissal. See Overton v. Chrysler Grp. LLC, No.
2:17-cv-01983(RDP), 2018 WL 847772, at *1 (N.D. Ala. Feb. 13, 2018) (“Overton”). The
Plaintiffs moved to remand the action back to Alabama State Court. Id.
Initially, the District Court ruled that it had subject matter jurisdiction under 28
U.S.C. § 1334 over the Overton Claims because the action required the interpretation
and enforcement of the Bankruptcy Court’s order approving Amendment No. 4. Id., at
*5; see Travelers Indem. Co. v. Bailey, 557 U.S. 137, 151 (2009) (“[T]he Bankruptcy
Court plainly had jurisdiction to interpret and enforce its own prior orders.”). As
discussed in more detail below, recovery under the AWDA is limited to punitive
damages, but Amendment No. 4 expressly excluded the assumption of punitive damage
liability by New Chrysler. Therefore, the Overton Claims, which sought damages under
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the AWDA, “directly implicate[d] and challenge[d]” the Bankruptcy Court’s order
approving Amendment No. 4. Overton, 2018 WL 847772, at *5; see also id., at *5 n. 6.
The District Court was “less convinced” that it had subject matter jurisdiction over the
Graham Claims. Id., at *5 n. 6. The Graham Claims sought compensatory damages and
limited the request for punitive damages to New Chrysler’s post-Closing conduct. As a
result, “the MTA and Amendment No. 4 [did] not govern whether [the Graham Claims
were] proper.” Id.
Ultimately, the District Court abstained from exercising jurisdiction pursuant to
28 U.S.C. § 1334(c)(1) and remanded the action back to the Alabama State Court. The
action asserted only state law claims between non-debtors, the only basis for federal
bankruptcy jurisdiction was that Overton sought punitive damages, and severance of the
Overton Claims was impractical. Id., at *7-8. Moreover, the Alabama State Court was
capable of interpreting the MTA, and, “[i]n the unlikely event that the state court does
not honor” the Bankruptcy Court orders, New Chrysler could appeal or petition the
Bankruptcy Court to enforce the orders against the Plaintiffs. Id., at *7.
D. 	New Chrysler’s Motion
On March 12, 2018, New Chrysler moved to enforce the Sale Order. (See FCA US
LLC’s Motion to Enforce the Court’s Order (I) Authorizing the Sale of Substantially all
of the Debtors’ Assets Free and Clear of all Liens, Claims, Interests and Encumbrances,
(II) Authorizing the Assumption and Assignment of Certain Executory Contracts and
Unexpired Leases in Connection Therewith and Related Procedures and (III) Granting
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Related Relief, dated Mar. 12, 2018 (“Chrysler Brief”).)8 New Chrysler asserted that (i)
the Overton Claims were barred by the Sale Order because Amendment No. 4 expressly
excluded “any claim for exemplary or punitive damages,” and recovery under the AWDA
is limited to punitive damages, (Chrysler Brief ¶¶ 24-40), (ii) the Graham Claims, to the
extent they sought punitive damages, were also barred by Amendment No. 4, (id. ¶¶ 41-
44), and (iii) the allegations did not give rise to independent claims against New
Chrysler. (Id. ¶¶ 45-51.)
The Plaintiffs opposed New Chrysler’s motion. (See Plaintiff’s Opposition to FCA
US LLC’s Motion to Enforce the Court’s Order (I) Authorizing the Sale of Substantially
all of the Debtors’ Assets Free and Clear of all Liens, Claims, Interests and
Encumbrances, (II) Authorizing the Assumption and Assignment of Certain Executory
Contracts and Unexpired Leases in Connection Therewith and Related Procedures and
(III) Granting Related Relief, dated May 4, 2018 (“Plaintiffs Brief”) (ECF Doc. # 8523).)
They argued that (i) the Overton Claims were not barred because the phrase “exemplary
or punitive damages” as used in Amendment No. 4 is ambiguous, extrinsic evidence
shows that the amendment was intended to exclude exemplary and punitive damages as
traditionally defined, “punitive” damages under the AWDA include damages that are
compensatory in effect, and excluding recovery under the AWDA is against Alabama
public policy and would lead to absurd results, (Plaintiffs Brief 13-23), and (ii) the
8 	New Chrysler moved to reopen the Chapter 11 case on the same day, (see ECF Doc. # 8508), and
the Court granted that motion for the limited purpose of adjudicating New Chrysler’s motion to enforce
the Sale Order. (See Transcript of June 7, 2018 Hearing at 13:10 (ECF Doc. # 8533); see also Order,
pursuant to Section 350 of the Bankruptcy Code, Bankruptcy Rule 5010 and Local Bankruptcy Rule
5010-1, Reopening the Chapter 11 Case of Old Carco LLC for the Limited Purpose of Considering FCA US
LLC’s Motion to Enforce the Sale Order, dated June 25, 2018 (ECF Doc. # 8531).)
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Court’s lack of subject matter jurisdiction over the Graham Claims was law of the case,
and in any event, those claims gave rise to independent claims based on post-Closing
conduct. (Id. 23-28.)9
New Chrysler’s reply reiterated arguments made in the Chrysler Brief and
responded to arguments in the Plaintiffs Brief. (See FCA US LLP’s Reply in Support of
its Motion to Enforce the Court’s Order (I) Authorizing the Sale of Substantially all of
the Debtors’ Assets Free and Clear of all Liens, Claims, Interests and Encumbrances,
(II) Authorizing the Assumption and Assignment of Certain Executory Contracts and
Unexpired Leases in Connection Therewith and Related Procedures and (III) Granting
Related Relief, dated May 18, 2018 (“Chrysler Reply”) (ECF Doc. # 8526).) New
Chrysler, acknowledged, however, that the Court’s ruling in Dearden v. FCA US LLC (In
re Old Carco LLC), 582 B.R. 838, 844-46 (Bankr. S.D.N.Y. 2018) (claims arising from
post-sale conduct of New Chrysler not barred by the Sale Order), which was issued after
New Chrysler filed the instant motion, narrowed the issues with respect to the Graham
Claims. (Chrysler Reply ¶ 35.) Nevertheless, New Chrysler repeated its argument that
the Graham Claims did not constitute truly independent claims based solely on New
Chrysler’s conduct. (Id. ¶ 41.)
9 	In support of their objection, the Plaintiffs submitted the affidavit of R. Bernard Harwood, sworn
to Apr. 30, 2018. (ECF Doc. # 8523-8.) Mr. Harwood is a retired Associate Justice of the Alabama
Supreme Court where he served from November 2000 until January 2007. New Chrysler moved to strike
the affidavit as improper expert testimony regarding Alabama law. (See ECF Doc. # 8527.) The Court
granted New Chrysler’s motion, but allowed the affidavit into the record as legal argument. (See Order
Regarding the Affidavit of Retired Justice R. Bernard Harwood, dated June 25, 2018 (ECF Doc. #
8532).) The affidavit duplicates the arguments in the Plaintiffs Brief.
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DISCUSSION
A. 	Standards Governing the Motion
In this contested matter to enforce the Sale Order and related agreements, the
Court’s role is to serve as a gatekeeper to determine whether the claims asserted against
New Chrysler are barred by the Sale Order, the MTA, Amendment No. 4 and the order
approving Amendment No. 4 (collectively, the “Sale Documents”). See Goodall v.
Chrysler, Inc. (In re Old Carco LLC), Adv. Pro. No. 17-01185 (SMB), 2018 WL 3854047,
at *4 (Bankr. S.D.N.Y. Aug. 10, 2018); Bennett v. FCA US LLC (In re Old Carco LLC),
587 B.R. 809, 815 (Bankr. S.D.N.Y. 2018); Dearden, 582 B.R. at 843. “[T]ruly
independent” claims, that is, those based solely on New Chrysler’s post-Closing,
wrongful conduct, are not barred by a section 363 sale order. In re Motors Liquidation
Co., 568 B.R. 217, 230 (Bankr. S.D.N.Y. 2017) (citing Elliott v. Gen. Motors LLC (In re
Motors Liquidation Co.), 829 F.3d 135, 157 (2d Cir. 2016), cert. denied, 137 S. Ct. 1813
(2017)), aff’d, 590 B.R. 39 (S.D.N.Y. ), appeal docketed, No. 18-1939 (2d Cir. June 28,
2018). To the extent the claim passes through the gate, it is the role of the court
presiding over the underlying action, here, the Alabama State Court, to adjudicate the
legal sufficiency and, ultimately, the merits of the claims in accordance with applicable
non-bankruptcy law. Dearden, 582 B.R. at 843.
B. 	The Overton Claims
The Overton Claims are brought pursuant to the AWDA which provides in
pertinent part:
A personal representative may commence an action and recover such
damages as the jury may assess in a court of competent jurisdiction
within the State of Alabama where provided for in subsection (e), and not
elsewhere, for the wrongful act, omission, or negligence of any person,
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persons, or corporation, his or her or their servants or agents, whereby the
death of the testator or intestate was caused, provided the testator or
intestate could have commenced an action for the wrongful act, omission,
or negligence if it had not caused death.
ALA. CODE § 6-5-410(a) (1975) (emphasis added). The Wrongful Death Act is Overton’s
sole remedy under Alabama law. King v. Nat’l Spa & Pool Inst., Inc., 607 So. 2d 1241,
1243 (Ala. 1992). New Chrysler argues that the AWDA only permits the recovery of
punitive or exemplary damages which are barred under the unambiguous language of
Amendment No. 4. The Plaintiffs counter that Amendment No. 4’s limitation on
damages gives rise to a patent or latent ambiguity because “exemplary or punitive
damages” is not defined in Amendment No. 4, and the punitive damages that are
recoverable under the AWDA are not the same “punitive or exemplary damages”
excluded under Amendment No. 4.
The MTA and Amendment No. 4 are governed by and construed in accordance
with New York law. (MTA § 11.08; Amendment No. 4 ¶ 6.) Under New York law, “[a]
basic precept of contract interpretation is that agreements should be construed to
effectuate the parties’ intent.” Welsbach Elec. Corp. v. Mastex N. Am., Inc., 859 N.E.2d
498, 500 (N.Y. 2006). When contractual language is “clear, unequivocal and
unambiguous, the contract is to be interpreted by its own language.” R/S Assocs. v. N.Y.
Job Dev. Auth., 771 N.E.2d 240, 242 (N.Y. 2002) (quoting Springsteen v. Samson, 32
N.Y. 703, 706 (1865)), reargument denied, 775 N.E.2d 1291 (N.Y. 2002); accord Evans
v. Famous Music Corp., 807 N.E.2d 869, 872 (N.Y. 2004) (“If that intent is discernible
from the plain meaning of the language of the contract, there is no need to look
further.”). Therefore, if a contract “on its face is reasonably susceptible of only one
meaning, a court is not free to alter the contract to reflect its personal notions of fairness
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and equity.” Selective Ins. Co. of Am. v. Cty. of Rensselaer, 47 N.E.3d 458, 461 (N.Y.
2016) (quoting Greenfield v. Philles Records, Inc., 780 N.E.2d 166, 171 (N.Y. 2002)). A
court should not “strain[] to find an ambiguity which otherwise might not be thought to
exist.” Uribe v. Merchs. Bank of N.Y., 693 N.E.2d 740, 743 (N.Y. 1998) (quoting
Loblaw, Inc. v. Emp’rs’ Liab. Assurance Corp., Ltd., 442 N.E.2d 438, 441 (N.Y. 1982)).
Moreover, contractual language does not become ambiguous merely because the parties
“urge different interpretations.” JA Apparel Corp. v. Abboud, 568 F.3d 390, 396 (2d
Cir. 2009) (quoting Hunt Ltd. v. Lifschultz Fast Freight, Inc., 889 F.2d 1274, 1277 (2d
Cir. 1989)).
A contractual provision is patently ambiguous where the ambiguity arises from
the language itself. L&L Painting Co., Inc. v. Contract Dispute Resolution Bd. of the
City of N.Y., 892 N.Y.S.2d 55, 57 (N.Y. App. Div. 2009), aff’d, 926 N.E.2d 1228 (2010);
accord In re Tikijian, 76 B.R. 304, 318 (Bankr. S.D.N.Y. 1987). Although a court may
consider extrinsic evidence to determine the meaning of a patently ambiguous
contractual provision, JA Apparel Corp., 568 F.3d at 397, extrinsic evidence is
inadmissible “to create an ambiguity” in an otherwise unambiguous provision. R/S
Assocs., 771 N.E.2d at 242 (quoting W.W.W. Assocs., Inc. v. Giancontieri, 566 N.E.2d
639, 642 (N.Y. 1990)). Conversely, a latent ambiguity arises when one of the terms may
“apply equally to two different things or subject-matters, and then evidence is
admissible to show which of them was the thing or subject-matter intended.” Leather
Form S.R.L. v. Knoll, Inc., 205 F. App’x 861, 864 n. 1 (2d Cir. 2006) (quoting Petrie v.
Trs. of Hamilton Coll., 53 N.E. 216, 217 (1899)) (summary order); accord Short v.
Churchill Benefit Corp., No. 14-CV-4561 (MKB), 2016 WL 8711349, at *13 (E.D.N.Y.
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Apr. 8, 2016); see also 11 WILLISTON ON CONTRACTS § 33.43 (4th ed. 2018) (“latent
ambiguities are those which appear only as the result of considering extrinsic or
collateral evidence that shows that a word, thought to have a single meaning, actually
has two or more meanings”).
Amendment No. 4’s restriction against exemplary and punitive damage claims is
not patently ambiguous. “Exemplary” and “punitive” damages are commonly used legal
terms that are well-understood. They refer to damages intended to punish the
wrongdoer and deter future wrongdoing rather than actual damages designed to
compensate the victim. See B LACK ’S L AW D ICTIONARY 474 (10th ed. 2014) (defining
“punitive damages” as “[d]amages awarded in addition to actual damages when the
defendant acted with recklessness, malice, or deceit; specif., damages assessed by way of
penalizing the wrongdoer or making an example of others,” and providing “exemplary
damages” as a synonym for punitive damages). New York courts commonly refer to the
dictionary to determine the meaning of words in a contract, 10 Ellicott Square Court
Corp. v. Mountain Valley Indem. Co., 634 F.3d 112, 120 (2d Cir. 2011), and the lack of a
separate definition within a contract of a well-understood term does not create an issue
of patent ambiguity. See United States v. Am. Soc’y of Composers, Authors &
Publishers, 309 F. Supp. 2d 566, 573 (S.D.N.Y. 2004) (“the mere fact that a contractual
term is undefined does not render it ambiguous”), clarified by 323 F. Supp. 2d 588
(S.D.N.Y. 2004), request for partial final judgment or interlocutory appeal denied, 333
F. Supp. 2d 215 (S.D.N.Y. 2004).
Nor have the Plaintiffs identified any latent ambiguity. They argue that the
“punitive” damages awardable under the AWDA are not the same as traditional punitive
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damages excluded under Amendment No. 4. (Plaintiffs Brief at 16.) 10 In the Plaintiffs’
view, “punitive” damages under the AWDA include damages that are compensatory, and
as such, were assumed by New Chrysler pursuant to Amendment No. 4. (Id. at 16-19.)
This argument regarding the compensatory nature of an award under the AWDA
ignores over 140 years of settled Alabama law. The predecessor to the current Wrongful
Death Act dates back to 1852 and was intended to prevent homicides. Campbell v.
Williams, 638 So. 2d 804, 810-11 (Ala.), cert. denied, 513 U.S. 868 (1994). Its goal was
to punish and deter wrongdoing, not compensate the injured party. Trott v. Brinks,
Inc., 972 So. 2d 81, 84 (Ala. 2007); Airheart v. Green, 104 So. 2d 687, 690 (Ala. 1958).
Although the words “punitive” or “exemplary” do not appear in its text, the Supreme
Court of Alabama, beginning with Savannah & Memphis R.R. Co. v. Shearer, 58 Ala.
672, 680 (1877), has consistently construed the Wrongful Death Act to limit recovery to
punitive damages and to exclude recovery of compensatory damages. 11 E.g., Trott, 972
So. 2d at 84 (“The instant action is a wrongful-death action under Ala. Code 1975, § 6–
5–410. In such a case, the only recoverable damages are punitive damages intended to
punish the tortfeasor for its actions—not to compensate the plaintiff.”); Tillis Trucking
10 	The Plaintiffs submitted as extrinsic evidence supporting their theory an August 27, 2009 letter
from a New Chrysler executive to Senator Richard Durbin, in which New Chrysler stated that it was
willing to “accept product liability claims on vehicles manufactured by Old Carco before June 10 [2009]
that are involved in accidents on or after that date . . . [and that it was] confident today that the future
viability of the company will not be threatened if we assume these obligations.” (See Miller Declaration,
Ex. 1.) Under the subsequent Amendment No. 4, New Chrysler agreed to accept post-Closing claims
involving vehicles manufactured by Old Chrysler, subject, however, to certain limitations including the
exclusion of liability for punitive damages.
11 	In 1886, the phrase in the Wrongful Death Act was modified from permitting juries to award
damages that they “deemed just” to the current formulation awarding “damages as the jury may assess.”
JENELLE M IMS M ARSH, ALABAMA L AW OF DAMAGES § 37:2 (6th ed. Feb. 2018 Update). The modification of
the language was “purely a verbal one, and in no sense material.” Richmond & D. R. Co. v. Freeman, 11
So. 800, 802 (1892); accord Campbell v. Williams, 638 So. 2d at 809.
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Co., Inc. v. Moses, 748 So. 2d 874, 888-89 (Ala. 1999) (“From the time the Legislature
enacted the predecessor of this provision in 1852, this Court has understood the
legislative intent behind the phrase ‘such damages as the jury may assess’ to be that the
jury is to award punitive or exemplary damages.”); Campbell v. Williams, 638 So. 2d at
812 (“Alabama has historically permitted juries to assess only punitive damages in
wrongful death cases. . . .”); King v. Nat’l Spa & Pool Inst., Inc., 607 So. 2d at 1247 (“A
wrongful death claim does not provide compensation for injuries that cause death.
Punitive damages are not compensation, and our system should not be contorted to
treat them as such.”); Black Belt Wood Co. v. Sessions, 514 So. 2d 1249, 1262 (Ala. 1986)
(“The purpose of Alabama’s wrongful death statute, of course, has been twofold: (1)
punishment based on the quality of the wrong, and (2) punishment based upon the
wrong or degree of culpability.”). Accordingly, evidence regarding the decedent’s loss is
inadmissible. Airheart v. Green, 104 So. 2d at 689 (instructing the jury that “in
assessing damages they could not consider the pecuniary value of the life of the
decedent; that the amount of the damages should not be measured by the value of the
decedent’s life; further, that no damages are recoverable to compensate the family of the
deceased, from a pecuniary standpoint, on account of his death nor could the jury award
any damages to compensate the plaintiff for any financial or pecuniary loss sustained by
her or the family of the decedent on account of his death”); Ala. G.S.R. Co. v. Burgess,
22 So. 913, 915 (Ala. 1897) (“Damages recoverable . . . are entirely punitive, and to
prevent homicides. Evidence of loss of services, or mere pecuniary loss, and evidence of
mental suffering on the part of the parents of the deceased child, are immaterial and
irrelevant.”); Buckalew v. Tenn. Coal, Iron & R.R. Co., 20 So. 606, 611 (Ala. 1896)
(“[E]vidence tending to show actual pecuniary loss by reason of the death is not
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admissible.”); see Louisville & N.R. Co. v. Tegnor, 28 So. 510, 513 (Ala. 1900).
That punitive damages can be recovered under the Wrongful Death Act based on
mere negligence does not change their punitive nature. The degree of culpability is one
of the elements a jury can consider in assessing the amount of the award. See Black Belt
Wood, 514 So. 2d at 1262 (purpose of the Wrongful Death Act is “punishment based on
the quality of the wrong” and “degree of culpability”); Blount Bros. Constr. Co. v. Rose,
149 So. 2d 821, 833 (Ala. 1962) (damages under the Wrongful Death Act are based on
“the culpability of defendant, the enormity of the wrongful act, and the necessity of
deterring similar wrongs”). However, the argument that the damages available under
the Wrongful Death Act are compensatory in any sense rather than punitive has been
rejected:
[W]e reject the argument that the damages awarded under the statute are,
regardless of the label applied by the Alabama courts, inherently
compensatory to any extent. Since the objectives of punitive damage
awards are totally unrelated to the purposes of compensation, it would be
a mere happenstance if a verdict for punitive damages equalled
compensatory damages in this cause. The purpose of this law as declared
of the courts of Alabama is binding on this court. It simply will not do to
allow plaintiff’s [sic] to utilize Alabama’s wrongful death law authorizing
punitive recovery as a surrogate authority to recover compensatory
damages by assuming our own view of its true purpose or measure of
damages to be awarded which the statute does not authorize and Alabama
courts declare is not present.
See Painter v. Tenn. Valley Auth., 476 F.2d 943, 944 (5th Cir. 1973). 12
12 	In a case that neither side cited, the Fifth Circuit sought to distinguish Painter in Lor, Inc. v.
Cowley, 28 F.3d 19 (5th Cir. 1994). There, the Court relied on the Louisiana principles of contract
interpretation and ruled that an exclusion for punitive damages in an insurance policy did not cover the
punitive damages awarded under the Wrongful Death Act because the “punitive damages” exclusion
referred to traditional punitive damages that required proof of more than ordinary negligence. Id. at 23.
The Court distinguished Painter on the basis that Painter was dealing with the question of the TVA’s
sovereign immunity rather than a private insurance contract, and waivers of sovereign immunity must be
unequivocally expressed. Id. at 22 n. 5.
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Indeed, the seeming unfairness of permitting an award of punitive damages
based on mere negligence has been the subject of several unsuccessful Constitutional
challenges, challenges that would not arise if the Wrongful Death Act did not limit
recovery to traditional punitive damages. In U.S. Cast Iron Pipe & Foundry Co. v.
Sullivan, 3 F.2d 794 (5th Cir.), cert. denied, 268 U.S. 696 (1925), the decedent’s estate
sued the defendant under the Wrongful Death Act to recover damages arising from the
defendant’s negligence. The defendant contended that the Wrongful Death Act violated
the due process clause of the Fourteenth Amendment by subjecting the defendant to
punitive damages based on ordinary negligence. Disagreeing, the Court of Appeals
ruled:
We are of opinion that there is no merit in this contention. In the absence
of statute, punitive or exemplary damages are recoverable in civil actions
for certain kinds of wrongful conduct. It is clearly within legislative
competency to give a civil right of action for the negligent or wrongful
killing of a human being, and to make the wrongdoer liable for punitive or
exemplary damages.
Id. at 795-96.
In Louis Pizitz Dry Goods Co. v. Yeldell, 274 U.S. 112 (1927), the Supreme Court
extended this principle to vicarious liability. There, the plaintiff sued an employer
under the Wrongful Death Act (then, the Homicide Act) seeking to impose vicarious
Lor has been cited by only one court for an entirely different proposition, see Dallas Glen Hills,
L.P. v. Underwriters at Lloyds, Civil Action No. 3:03-CV-0295-D (SAF), 2003 U.S. Dist. LEXIS 10490, at
*10 n. 10 (N.D. Tex. June 19, 2003) (referencing Lor to show that Lloyd’s of London had been sued
through an individual syndicate acting in a representative capacity), and its construction of the punitive
damages exclusion in the insurance policy is suspect. As discussed in the succeeding text, subsequent
Alabama case law has declined to enforce a punitive damage insurance coverage exclusion in wrongful
death actions on public policy grounds. If punitive damages recoverable under the Wrongful Death Act
meant something different from the punitive damages excluded under an insurance contract, it would not
be necessary to resort to public policy.
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liability for punitive damages based on the negligence of its employee. The defendant
contended that the imposition of vicarious liability without any fault violated the
Fourteenth Amendment of the United States Constitution. Id. at 113-14. Focusing on
the purpose of the Wrongful Death Act to prevent homicides and punish the wrongdoer,
the Supreme Court concluded that it was within the province of the legislature to extend
the vicarious liability for punitive damages to employers who are not directly at fault:
As interpreted by the state court, the aim of the present statute is to strike
at the evil of the negligent destruction of human life by imposing liability,
regardless of fault, upon those who are in some substantial measure in a
position to prevent it. We cannot say that it is beyond the power of a
Legislature, in effecting such a change in common law rules, to attempt to
preserve human life by making homicide expensive. It may impose an
extraordinary liability such as the present, not only upon those at fault but
upon those who, although not directly culpable, are able nevertheless, in
the management of their affairs, to guard substantially against the evil to
be prevented.
Id. at 116.
Subsequent Constitutional challenges have similarly failed. See Kirksey v.
Schindler Elevator Corp., CIVIL ACTION 15-0115-WS-N, 2016 WL 3189242, at *21
(S.D. Ala. June 7, 2016) (denying equal protection challenge based on “[t]he distinction
employed by the Alabama legislature . . . between negligent conduct not causing a
fatality (as to which punitive damages are unavailable as a matter of law) and negligent
conduct causing a fatality (as to which the Act allows punitive damages)”), denying
reconsideration, CIVIL ACTION 15-0115-WS-N, 2016 WL 6462176 (S.D. Ala. Oct. 28,
2016); Cherokee Elec. Coop. v. Cochran, 706 So. 2d 1188, 1194 (Ala. 1997) (stating that
“the Supreme Court [in Louis Pizitz] held that Alabama could authorize the recovery of
punitive damages for simple negligence if death resulted, without violating a defendant’s
constitutional rights”); Ala. Power Co. v. Turner, 575 So. 2d 551, 556 (Ala.) (“By
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allowing punitive damages to be assessed against defendants in wrongful death actions
in a manner different from the way punitive damages are assessed in other civil actions,
the legislature has undoubtably [sic] recognized that no arbitrary cap can be placed on
the value of human life. . . .”), cert. denied, 500 U.S. 953 (1991); cf. Campbell v.
Williams, 638 So. 2d at 812 (rejecting due process and equal protection challenges
despite the absence of any requirement to apportion punitive damages among multiple
defendants).
In short, the damages awarded under the Wrongful Death Act are still punitive
damages, whether based on mere negligence or on more egregious wrongdoing, because
they are intended to punish and deter rather than compensate.
The Plaintiffs’ contrary argument results from their misreading of Louis Pizitz.
In describing the Wrongful Death Act, Justice Stone quoted S. Ry. Co. v. Bush, 26 So.
168 (Ala. 1899):
The [Wrongful Death Act] is remedial, and not penal, and was designed as
well to give a right of action where none existed before, as to “prevent
homicides,” and the action given is purely civil in its nature for the redress
of private, and not public wrongs.
Louis Pitziz, 274 U.S. at 114 (quoting Bush, 26 So. at 174) (emphasis added). The
Plaintiffs maintain that the quoted portion of the Louis Pizitz decision signifies that
recovery under the Wrongful Death Act is not limited to punitive damages. (Plaintiffs
Brief 19.)
Their argument ignores the context of the Bush quotation as well as the
distinction Bush drew between the nature of the proceeding and the nature of the
damages. Bush involved claims brought under the Wrongful Death Act by the
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representative of a decedent killed when he was struck by a train. Bush, 26 So. at 170.
The plaintiff sought to prove his case through the interrogatory answers provided by the
defendant’s employee. Id. at 173. The defendant objected, arguing that the wrongful
death action was akin to “proceedings for penalties and forfeiture,” and the Fifth
Amendment right against self-incrimination prevented the disclosure of the
interrogatory answers on that basis. Id.
The Bush Court disagreed ruling that wrongful death claims were civil claims
notwithstanding that the plaintiff’s recovery was limited to punitive damages:
If the damages recoverable in an action of this character were, strictly
speaking, a penalty imposed by law, we would be inclined to give our
constitutional provision on the subject the same construction that has
been placed on the similar provision of the federal constitution, and to
hold that the defendant could not be compelled, even by statute, to give or
furnish evidence in aid of a recovery against it. But while the damages
recoverable are undoubtedly, under our former rulings, punitive in their
nature, and not compensatory, they are not, in a strict sense, a penalty;
nor is the action penal, or quasi criminal, within the meaning of the
constitutional provisions as above construed. The statute is remedial,
and not penal, and was designed as well to give a right of action where
none existed before, as to “prevent homicides”; and the action given is
purely civil in its nature.
Id. at 173-74 (emphasis added). Thus, Bush simply distinguished a wrongful death
case—a civil proceeding—from a penalty, forfeiture or other quasi-criminal proceeding
for the purpose of determining the availability of the Fifth Amendment right against
self-incrimination. The Court did not suggest that compensatory damages were
available under the Wrongful Death Act, and, in fact, expressly stated that the “damages
recoverable . . . [are] punitive in their nature, and not compensatory.” Id. at 174.
The Plaintiffs’ remaining arguments are unpersuasive. They assert that
interpreting Amendment No. 4’s restriction on punitive damages to preclude claims
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under the Wrongful Death Act would lead to the absurd result of preventing wrongful
death claims brought by Alabamians against New Chrysler while permitting the same
claims brought by citizens of other states. (Plaintiffs Brief 20-21.) This argument is not
new. It has been considered and rejected in analogous situations involving federal
statutes that preclude the recovery of punitive damages. For example, in Painter v.
Tenn. Valley Auth., the personal representative of decedent’s estate brought an action
under the Wrongful Death Act against the TVA. The District Court dismissed the action
because the Wrongful Death Act was limited to the recovery of punitive damages, and
punitive damages could not be recovered against the United States or its agencies.
Painter v. Tenn. Valley Auth., 476 F.2d at 944.
On appeal, the Fifth Circuit affirmed. Noting the anomaly that would permit
recovery in any other jurisdiction that permitted the recovery of compensatory damages,
the Court stated that corrective action resided with the appropriate legislature and not
the courts:
It is altogether anamolous [sic] that similarly situated survivors could
maintain this action against the TVA under the law of practically any other
state while those who have the misfortune of being relegated to the use of
Alabama law are permitted no right of action at all. This lack of uniformity
of tort responsibility of a federal institution based on the fortuity of
geography is irrational. . . .
The aberration in such cases must find its remedy through an appropriate
Congressional waiver of the TVA’s immunity to punitive damages or by the
creation of some uniform federal right of action, or by Alabama’s
amendment or reinterpretation of its law.
Id. at 944-45 (footnotes omitted); accord Springer v. Bryant, 897 F.2d 1085, 1090-91
(11th Cir. 1990); see Brown v. Morgan Cty., Ala., 518 F. Supp. 661, 665 (N.D. Ala. 1981)
(striking claim for compensatory damages in action brought under 42 U.S.C. § 1983
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pursuant to the Wrongful Death Act because the Wrongful Death Act only permitted
recovery of punitive damages, and punitive damages were not recoverable in a § 1983
action).
The limitation on the recovery of punitive damages against New Chrysler is
contractual rather than statutory, but the foregoing principles require the same result.
Alabama adheres to the rule that a plaintiff may recover only punitive damages in a
wrongful death case, and Amendment No. 4 precludes such recovery against New
Chrysler.
Lastly, the Plaintiffs make an argument based on public policy. Amendment No.
4 provides:
If any term or other provision of this Amendment is invalid, illegal or
incapable of being enforced by any rule of Law, or public policy, then to
the maximum extent permitted by Law, all other conditions and
provisions of this Amendment shall nevertheless remain in full force and
effect.
(Amendment No. 4 ¶ 9.) According to the Plaintiffs, “it is Alabama’s public policy that
wrongful death damages are not treated as punitive if the application of a contract or
federal regulatory scheme would unfairly deprive an Alabama decedent’s estate from the
same benefit granted to other wrongful death claimants.” (Plaintiffs Brief 21.)
This contention, a variation of the “absurd result” argument, overstates
Alabama’s public policy. The refusal to enforce punitive damage exclusions appears to
be limited to punitive damage exclusions in insurance policies in wrongful death cases.
Wingard v. Länsförsäkringar AB, No. 2:11–CV–45–WKW, 2013 WL 5493177, at *14
(M.D. Ala. Sept. 30, 2013); see Hill v. Campbell, 804 So. 2d 1107, 1109 (Ala. Ct. Civ.
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App. 2001); see also Letter from Assistant Attorney General Ronald B. Hatcher to
Charles H. Payne, Commissioner of Insurance, dated Feb. 1, 1978. 13 In addition, the
Plaintiffs point out that the Internal Revenue Code includes punitive damages in gross
income, 26 U.S.C. § 104(a)(2), unless they are awarded for wrongful death where
applicable state law limits recovery to punitive damages. 14
The result in this case is not driven by federal tax policy. Moreover, there are
strong federal policies that favor the interpretation of Amendment No. 4 advocated by
New Chrysler. The exclusion at issue was contained in a contract of sale approved by
the Court. The terms of a section 363 sale are the product of a negotiation. See Motors
13 	A copy of Mr. Hatcher’s letter is annexed as Exhibit 4 to the Miller Declaration. The Plaintiffs
also quote Mr. Hatcher’s criticism of the majority view that permits the exclusion of punitive damage
coverage in insurance policies and his opinion that punitive damages are now largely or exclusively
compensatory in many jury verdicts. (Plaintiffs Brief 22.) His view about the compensatory components
of jury awards is wholly conclusory and contrary to Alabama law.
14 	IRC § 104 provides in pertinent part:
(a) In general.--Except in the case of amounts attributable to (and not in excess of)
deductions allowed under section 213 (relating to medical, etc., expenses) for any prior
taxable year, gross income does not include—
. . . .
(2) the amount of any damages (other than punitive damages) received (whether by
suit or agreement and whether as lump sums or as periodic payments) on account of
personal physical injuries or physical sickness. . . .
. . . .
(c) Application of prior law in certain cases.--The phrase “(other than punitive damages)”
shall not apply to punitive damages awarded in a civil action--
(1) which is a wrongful death action, and
(2) with respect to which applicable State law (as in effect on September 13, 1995 and
without regard to any modification after such date) provides, or has been construed
to provide by a court of competent jurisdiction pursuant to a decision issued on or
before September 13, 1995, that only punitive damages may be awarded in such an
action.
This subsection shall cease to apply to any civil action filed on or after the first date on
which the applicable State law ceases to provide (or is no longer construed to provide) the
treatment described in paragraph (2).
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Liquidation Co., 829 F.3d at 163. “A § 363 sale can often yield the highest price for the
assets because the buyer can select the liabilities it will assume and purchase a business
with cash flow (or the near prospect of it).” Ind. State Police Pension Trust v. Chrysler
LLC (In re Chrysler LLC), 576 F.3d 108, 116 (2d Cir.), vacated & remanded with
instructions to dismiss the appeal as moot, 558 U.S. 1087 (2009).
Here, Old Chrysler, New Chrysler and other stakeholders that participated in the
negotiation struck a bargain under which New Chrysler agreed, in relevant part, to
assume liability for compensatory damages for post-Closing accidents involving vehicles
manufactured and sold by Old Chrysler, but not to assume liability for punitive
damages. The Plaintiffs do not make the untenable argument that the parties to
Amendment No. 4 understood that they were limiting New Chrysler’s liability for
punitive damages based on egregious conduct but not based on ordinary negligent
conduct. Regardless of the evidentiary standard, the nature and amount of the award
are still punitive and not compensatory. 15
In the end, Amendment No. 4 did not create the unfair or anomalous result in
this case. The result flows from interpretation accorded to the nature of the damages
recoverable under the Wrongful Death Act. Since Savannah, the Alabama Supreme
Court has consistently ruled that the plaintiff in a wrongful death action may recover
only punitive damages, and evidence supporting a compensatory award is irrelevant.
Despite judicial and academic criticism, see, e.g., King v. Nat’l Spa & Pool Inst., Inc.,
15 	In addition, the award is paid to the decedent’s survivors rather than to her estate, and creditors
of her estate cannot look to the award to satisfy their claims. See ALA. CODE § 6-5-410(c) (1975) (“The
damages recovered are not subject to the payment of the debts or liabilities of the testator or intestate, but
must be distributed according to the statute of distributions.”).
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607 So. 2d at 1251 (Maddox, J., dissenting), the Alabama Supreme Court has not
overruled its precedent.
Nor has the Alabama legislature acted. The anomaly, or absurd result, noted by
the Painter Court forty-five years ago still persists, and despite major tort reform
legislation in 1987 (and decisions like Painter and academic and judicial criticism), the
Alabama legislature has chosen not to change the Wrongful Death Act to permit the
award of compensatory damages in wrongful death actions. Tillis Trucking v. Moses,
748 So. 2d at 889-90 (quoting Lemond Constr. Co. v. Wheeler, 669 So.2d 855, 864 (Ala.
1995) (Maddox, J., concurring)). While the result is unsatisfactory, the Court is
powerless to change the result. Accordingly, New Chrysler’s motion to enforce the Sale
Documents and enjoin the prosecution of the Overton Claims is granted.
C. 	The Graham Claims
The Graham Claims do not implicate the Wrongful Death Act because J.G.
survived. They consist of (i) compensatory damage claims based on the actions of Old
Chrysler and/or New Chrysler whether pre- or post-Closing, and (ii) punitive damage
claims based on the post-Closing actions of New Chrysler. The compensatory damage
claims clearly fall within the purview of the additional claims assumed by New Chrysler
under Amendment No. 4. (See Amendment No. 4 ¶ 1 (New Chrysler will assume “all
Product Liability Claims arising from the sale . . . prior to the Closing of motor vehicles .
. . manufactured by [Old Chrysler] and distributed and sold as a . . . Jeep . . . brand
vehicle . . . .”).) They are not barred by the Sale Order or the relevant contractual
provisions.
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The allegations pertaining to the punitive damage claims based on post-Closing
conduct are sparse and conclusory. The Complaint states that “the defective condition
of the Jeep Liberty was known by [New Chrysler] and/or former Chrysler companies
absorbed by [New Chrysler], and that knowledge was transferred to [New
Chrysler]. Despite such knowledge, [New Chrysler] took no action to warn, recall or
otherwise eliminate the defective condition.” (Complaint ¶ 32; see also id. ¶¶ 44, 47, 54,
56.) The Complaint does not allege who owned the Vehicle, or whether any of the
Plaintiffs or the persons they represent had any contractual or prior relationship or
business with Old Chrysler or New Chrysler. In Overton, the Alabama District Court
was “less convinced” that the post-Closing duty to warn claims were barred by
Amendment No. 4, and ultimately concluded that the District Court lacked subject
matter jurisdiction over the Graham Claims under 28 U.S.C. § 1334: “In light of the
carefully-pled manner of the Complaint, the MTA and Amendment No. 4 do not govern
whether Plaintiff Scott Graham’s claims are proper,” Overton, 2018 WL 847772, at *5 n.
6, and “do not fall within the scope of the Bankruptcy Court’s Orders.” Id. at *8.
Graham argues that the Alabama District Court’s jurisdictional ruling is law of
the case. (Plaintiffs Brief 24-25.) New Chrysler counters that law of the case does not
apply because this Court has not ruled on the issue and law of the case only applies to
proceedings before the same court. (Chrysler Reply ¶ 33 (citing In re Motors
Liquidation Co., 576 B.R. 313, 321 (Bankr. S.D.N.Y. 2017).) While this is not the same
case that was before the Alabama District Court, and law of the case may not apply, I
conclude on the only issue before me that the failure to warn claim passes through the
gate.
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A § 363 sale order may not bar a claim that arises from wrongful conduct
occurring after the sale. Dearden, 582 B.R. at 844; see also Motors Liquidation Co.,
829 F.3d at 156. Consequently, Graham’s punitive damage claims cannot be barred by
the Sale Documents to the extent they are based solely on the post-Closing conduct of
New Chrysler. Motors Liquidation Co., 568 B.R. at 231 (“To pass the bankruptcy gate, a
complaint must clearly allege that its causes of action are based solely on New GM’s
post-closing wrongful conduct.”); accord Dearden, 582 B.R. at 844 (listing cases). New
Chrysler contends that the Complaint fails to allege post-Closing tortious conduct and is
enjoined by the Sale Documents for that reason. (Chrysler Brief ¶ 45.)
Initially, the Sale Order bars any claim based on injuries proximately caused by
the failure to repair a pre-existing defect in a vehicle manufactured and sold by Old
Chrysler. The only repair obligations that New Chrysler assumed were those imposed
under the factory or extended warranties, and Graham has not asserted such a claim.
On the other hand, injuries proximately caused by the post-Closing breach of any
duty to warn or recall would not be barred to the extent they are cognizable claims
under Alabama law. While federal law does not provide a private right of action based
on the failure under federal law to recall a vehicle for safety reasons, Grimstad, 2017 WL
1628888, at *5, I leave to the Alabama State Court whether Alabama law recognizes
such a claim. New Chrysler opposes the duty to warn claim arguing that the Complaint
fails to allege a legally sufficient post-Closing claim based on the breach of that duty. Id.
New Chrysler may be right, but it is within the province of the Alabama State Court to
make that determination. This Court has fulfilled its limited role by concluding that the
Sale Documents do not bar such a claim.
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CONCLUSION
For the reasons stated, the Overton Claims are barred by the Sale Documents,
and Overton is enjoined from prosecuting the Overton Claims in the Alabama State
Court. The Graham Claims are not barred by the Sale Documents to the extent they
seek compensatory damages or punitive damages based on the post-Closing breach of a
duty to warn or recall, but the Court does not decide whether the Complaint asserts
legally sufficient claims under Alabama law. Settle Order.
Dated: 	New York, New York
November 1, 2018
/s/ Stuart M. Bernstein
STUART M. BERNSTEIN
United States Bankruptcy Court
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