Beautilite Co., Inc. v. Anthony, 87-1185
| Citation | 554 So.2d 946 |
| Decision Date | 25 August 1989 |
| Docket Number | No. 87-1185,87-1185 |
| Parties | BEAUTILITE COMPANY, INC. v. Eugene ANTHONY. |
| Court | Supreme Court of Alabama |
Alton R. Brown, Jr. and Weyman W. McCranie, Jr., of Brown, Hudgens, Richardson, Mobile, for appellant.
Peter F. Burns and Peter S. Mackey, Mobile, for appellee.
Eugene Anthony filed an action against Beautilite Company, Inc. ("Beautilite"), alleging breach of a contract to install vinyl siding "in a good and workmanlike manner" and fraud. The jury returned a $71,292.34 verdict for Anthony, and the trial court entered judgment on the verdict.
Anthony solicited bids from several vinyl siding companies for the installation of siding on his home and for installing a vinyl "skirt." Beautilite's representative, Fred Hoppe, submitted the lowest bid, and Anthony and Beautilite signed a contract. Anthony presented evidence that, during the contract negotiations, he specifically requested that Beautilite use treated lumber and that Beautilite agreed to do so.
Beautilite retained Howard Wilson, an independent contractor, to do the work. Under Hoppe's supervision, Wilson installed the siding, including the vinyl skirt, in July 1985. Sometime in October 1985, Anthony began to have problems with moisture accumulation in his home. The walls began to sweat, and mildew formed. The carpet became wet and then mildewed. About a month after the moisture problems began, Anthony complained to Hoppe. After an inspection, Hoppe told Anthony and his wife that their problems were not Beautilite's fault.
The moisture problems worsened. Mrs. Anthony testified that she scrubbed the walls every two weeks, attempting to remove the mildew, but to no avail. The odor became sufficiently offensive that when Mrs. Anthony and her children returned from school, she would keep the children outside. She continually sprayed the house with aerosol cleaners and opened the windows and doors. The odor persisted and the mildew became worse, covering the Anthonys' shoes and clothes.
Hoppe visited the Anthonys again to look at the problems in their home. Testimony at trial indicates that this time he told them they needed a new roof to cure the problem. The Anthonys replaced the roof, but the mildew, rot, and odor problems continued. Although Anthony called Hoppe several more times on the telephone, Hoppe never again visited Anthony's house.
On December 5, 1986, Anthony filed this action. The complaint, as amended, claimed that Beautilite breached a contract "to install in a good and workmanlike manner vinyl siding and a vapor barrier" and claimed fraud, alleging that Hoppe had told Anthony that the problems with the house were caused by a bad roof, not the work done by Beautilite, and alleging that Beautilite had said it would use treated lumber in the work, but had actually used untreated lumber.
At trial, Anthony contended that the vinyl skirt did not provide adequate ventilation for the house, and by failing to do so caused moisture to be trapped under the house and to create the moisture problems. Harvey Heiser, an expert witness, testified that the crawl space area under the house was saturated and that the rot, mildew, and mold problems were due to excess moisture caused by improper ventilation caused by Beautilite. Starr Prolsdorfer also testified as an expert witness for Anthony. Prolsdorfer testified that the moisture problems in Anthony's house were caused by Beautilite's failure to vent properly the crawl space where Beautilite had installed the vinyl siding and skirt. Prolsdorfer stated that Beautilite violated the Mobile building code by providing only five percent of the required ventilation and by not using treated wood to connect the vinyl siding to the bottom of the house. William Norton, chief building inspector for the city of Mobile, also testified that Beautilite's work failed to meet the building code minimum requirements that Prolsdorfer described.
Beautilite presented evidence that indicated that Anthony's problems with his home were caused by plumbing leaks and bad drainage and pre-existed Beautilite's installation of the vinyl. Hoppe testified inconsistently concerning whether he had told Anthony that the problem with the house was that it needed a new roof.
During the trial, Anthony's lawyer asked a question concerning whether Beautilite had shown a letter to its insurance carrier, and Beautilite moved for a mistrial based on this question, which Beautilite claimed improperly injected the issue of insurance into the trial. The trial court denied Beautilite's motion for a mistrial, as well as its motions for a directed verdict.
Beautilite's first argument for reversal is that the trial court erred when it denied Beautilite's motion for a mistrial. Beautilite was defended at trial by its insurance carrier under a complete reservation of rights, so that whether Beautilite's insurer was obligated to pay any judgment against Beautilite was undetermined. During Anthony's cross-examination of Beautilite's president, Lambert Roberts, Anthony's lawyer asked, "Now did you turn your letter over to your insurance carrier?" The trial court immediately sustained Beautilite's objection to this question. In a conference shortly thereafter, the trial court initially indicated that it might grant a mistrial, but the next morning, after reading the letter, the trial court denied Beautilite's motion for mistrial.
The letter in question was one that Anthony's lawyer had written to Fred Hoppe. That letter pertinently stated:
(Emphasis supplied.) Beautilite introduced the letter into evidence and used it in examining two witnesses.
Alabama law disapproves of introducing testimony or other evidence that tends to show that a party from whom one seeks damages is or may be indemnified by an insurance company. See, e.g., Thompson-Weinman & Co. v. Robinson, 386 So.2d 409 (Ala.1980); Robins Engineering, Inc. v. Cockrell, 354 So.2d 1 (Ala.1978). Basing its argument on that general proposition, Beautilite argues that it was prejudiced by Anthony's lawyer's question and that that prejudice was greatly worsened because Beautilite was defended under a reservation of rights, so that the jury might receive the impression that Beautilite was definitely covered by insurance, when, in fact, whether Beautilite's insurer is obligated to pay a judgment against Beautilite is currently undetermined. On the other hand, Anthony argues that because Beautilite introduced the letter that referred to Beautilite's insurer and used the letter in questioning witnesses, the question that his lawyer asked should not be a basis for a mistrial. Although both arguments contain colorable merit, we find Anthony's argument more convincing. Beautilite introduced the letter and examined witnesses concerning it, and should have foreseen that Anthony would use it to cross-examine and to attempt to impeach Beautilite's president. Furthermore, although Beautilite introduced the letter, it did not request that the sentence about the insurance carrier be deleted until after the motion for mistrial had been denied. Had Beautilite initially requested that the sentence be deleted, our finding might be different. However, as the case is presented, we will not hold that the trial court committed reversible error when it denied Beautilite's motion for a mistrial. If Anthony's lawyer had not asked the question, the letter presumably would have gone to the jury intact and thus would have presented the matter of insurance to the jury simply by virtue of Beautilite's having...
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