Armstrong v. Aetna Ins. Co.

• Decision Date: 30 September 1983
• Citation: 448 So.2d 353
• Parties: James David ARMSTRONG, etc., et al. v. AETNA INSURANCE COMPANY. 82-177.
• Court: Alabama Supreme Court

Page 353

448 So.2d 353

James David ARMSTRONG, etc., et al. v. AETNA INSURANCE COMPANY.

82-177.

Supreme Court of Alabama.

Sept. 30, 1983.

Rehearing Denied April 6, 1984.

Patrick M. Sigler, Mobile, for appellants.

Victor T. Hudson and Carl Robert Gottlieb, Jr. of Reams, Wood, Vollmer, Philips, Killion & Brooks, Mobile, for appellee.

FAULKNER, Justice.

This is an appeal from a summary judgment granted in favor of the defendant, Aetna Insurance Company, in an action for negligent inspection by a workmen's compensation carrier. We affirm.

James David Armstrong, a minor, was the employee of Lonnie Manning, who had been hired by The Country Club of Mobile to remove the light bulbs above its tennis courts and replace them with a different type of bulb. Manning and Armstrong used a scaffold, which Manning had rented, to change the bulbs. According to Manning, at the end of the work day in question the club's tennis pro asked Armstrong to push the scaffold against some trees on the far side of the courts. While Armstrong and a country club employee were moving the scaffold it came into contact with overhead power lines, resulting in injury to Armstrong.

Armstrong filed a complaint by and through his father as his next friend against numerous defendants. The complaint, as last amended, alleged: (1) that Aetna, the club's workmen's compensation carrier, undertook to inspect the premises and to provide a safety engineering service to the club, (2) that in making the inspection Aetna negligently failed to advise the club of an unsafe condition, the uninsulated electrical wires, (3) that the allegedly dangerous condition should have been obvious to anyone skilled in making such inspections, (4) that Aetna should have known, by the exercise of reasonable diligence, of the dangerous condition, and (5) that Armstrong's injuries were the proximate result of Aetna's negligence. Another count alleged wanton inspection by Aetna.

Aetna's motion for summary judgment was granted on October 25, 1982. The following day Aetna filed an affidavit containing the following text:

"1. My name is E.M. "Bert" Meadows and I am employed by the Defendant, Aetna Insurance Company. I am familiar with the terms and conditions of the policy of workmen's compensation insurance issued by Aetna to the Country Club of Mobile. This policy of workmen's compensation insurance did not provide workmen's compensation insurance coverage to either of the Plaintiffs since neither of them were employees of the Country Club of Mobile at the time of the accident made the basis of this suit."

On November 10, 1982, the trial court entered an order expressly finding that there was no just reason to delay entry of a final judgment and directed that a final judgment be entered pursuant to A.R.Civ.P. 54(b) on behalf of Aetna.

On appeal Aetna took the position that the October 25th order was in full force and effect when the November 10th order was entered and, therefore, that the subsequent order was a nullity. See Williams v. Continental Oil Co., 387 So.2d 130 (Ala.1980). We disagree with Aetna's contention that Williams is controlling here. In that case, the trial court granted a motion seeking to reinstate a counterclaim after the case in chief had been dismissed with prejudice. In the case at bar, however, other claims had not been adjudicated, so the action was still pending as to all claims of all parties following entry of the October 25th order, because the...