Booth v. United Services Auto. Ass'n

• Decision Date: 19 April 1985
• Parties: Barry L. BOOTH v. UNITED SERVICES AUTOMOBILE ASSOCIATION. 83-714.
• Court: Alabama Supreme Court

Page 1281

469 So.2d 1281

Barry L. BOOTH v. UNITED SERVICES AUTOMOBILE ASSOCIATION.

83-714.

Supreme Court of Alabama.

April 19, 1985.

Robert T. Cunningham, Jr. and Richard E. Browning, Mobile, for appellant.

Caine O'Rear III and Kathryn E. Errington of Hand, Arendall, Bedsole, Greaves & Johnson, Mobile, for appellee.

ADAMS, Justice.

Plaintiff, Barry L. Booth appeals from the summary judgment entered against him and in favor of the defendant, United Services Automobile Association, in the Mobile County Circuit Court. We reverse.

Briefly, the facts of this case are as follows:

In December 1974, Booth purchased a homeowner's insurance policy from United Services Automobile Association (USAA) for his beach house on Fort Morgan Road in Baldwin County, Alabama. The policy had a maximum coverage of $28,000.00. He also had a policy with USAA which covered his residence in Montrose, Alabama. The limit of that policy was $120,000.00.

In the summer of 1979, Booth received a letter from USAA which suggested that he increase the coverage on his residence in Montrose. Booth subsequently filled out the form and mailed it back to USAA. Upon receipt of the form, USAA raised the policy limits on the Montrose residence from $120,000.00 to $150,000.00. Booth claimed that he sent a similar form back to USAA at the same time to effectuate an increase in the policy limits on the Baldwin County beach house from $28,000.00 to $90,000.00. USAA denied ever having received the form, or having any correspondence with Booth about increasing the coverage on the beach house prior to the end of September 1979.

On September 12, 1979, Hurricane Frederic struck the Gulf Coast and destroyed Booth's beach house. Approximately two weeks later, Booth contacted a representative from USAA regarding the beach house loss. It was at this time, USAA claimed, that it was first made aware of the supposed increase in coverage. Booth asserted that, pursuant to the form he claimed to have mailed to USAA in July of 1979, the maximum coverage for the beach house was $90,000.00. USAA maintained its position that it had received nothing from Booth, and, therefore, the policy limit remained $28,000.00.

USAA sent Booth a check for $7,000.00, representing payment of Booth's claim. After holding the check for a while, Booth cashed it, and filed this suit against USAA for the remaining $83,000.00 he claims USAA owes him under the policy. After the pleadings were filed, USAA filed a motion for summary judgment, which the court granted. It is from that judgment that Booth appeals.

The sole issue for our review is whether the trial court erred when it granted USAA's motion for summary judgment.

The standard used by a trial court to determine if summary judgment should be granted is stated in Rule 56, Alabama Rules of Civil Procedure. In order for the court to grant summary judgment, it must find that there is no genuine issue of a material fact and that the movant is entitled to a judgment as a matter of law. Silk v. Merrill Lynch, Pierce, Fenner & Smith, 437 So.2d 112 (Ala.1983). The burden of proof is on the movant to show that there is no genuine issue of fact that the jury must decide in the case. Worley v. Worley, 388 So.2d 502 (Ala.1980). Also, the scintilla rule has been applied to summary judgment cases, and that rule increases the burden of proof borne by the movant. Therefore, if there is a scintilla of evidence which supports the position of the non-movant, summary judgment must not be granted. Silk v. Merrill Lynch, Pierce, Fenner & Smith, supra.

In the instant case, the question is whether the policy limits on Booth's beach house were increased from $28,000.00 to $90,000.00. In order to make this decision,...