Capital Alliance Ins. Co. v. Thorough-Clean, Inc.
| Decision Date | 01 April 1994 |
| Docket Number | THOROUGH-CLEA,INC |
| Citation | 639 So.2d 1349 |
| Parties | CAPITAL ALLIANCE INSURANCE COMPANY v., et al. 1930064. |
| Court | Alabama Supreme Court |
Steve P. Brunson and Rebecca A. Walker of Simmons, Brunson, Sasser and Callis, Attorneys P.A., Gadsden, for Capital Alliance Ins. Co.
H. Darden Williams and Wesley M. Frye of Williams, Harmon and Hardegree, Anniston, for Thorough-Clean, Inc.
G. Douglas Jones of Jones, Bowron & Selden, P.C., Birmingham, for S.H. and R.H.
The plaintiff in a declaratory action, Capital Alliance Insurance Company, appeals from a summary judgment entered for Thorough-Clean, Inc., and S.H. and her husband R.H. We affirm.
A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala.R.Civ.P. The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmoving party must present "substantial evidence" creating a genuine issue of material fact--"evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." Ala.Code 1975, § 12-21-12; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).
Viewing the facts in the light most favorable to Capital Alliance, as required under the applicable standard of review, we must assume that the following occurred:
Thorough-Clean, Inc., is a business that provides janitorial services. It was insured under a Capital Alliance Insurance Company "Commercial General Liability Coverage" insurance policy from June 30, 1991, to June 30, 1992. This policy provided certain property and liability coverages to Thorough-Clean, subject to the terms, conditions, and exclusions in the policy.
In April 1991, Thorough-Clean had entered into a two-year contract with Alabama Power Company to provide "all labor, material, equipment and supervision to perform janitorial cleaning services" for Alabama Power Company locations throughout Alabama.
Thorough-Clean had a policy not to hire or recommend applicants with a history of incarceration. Mary Roberts was the office manager for Thorough-Clean; her job included, among other things, receiving and processing employment applications, interviewing job applicants, and checking all references. In May 1991, Mary Roberts's son, Michael Cortez Roberts, applied for employment with Thorough-Clean, indicating on his application that he had not been convicted of a felony within the last seven years, although in fact during that time he had been convicted of a crime of violence and had been sentenced to prison. Mary Roberts had personal knowledge that Michael had been in prison for a crime of violence and had heard that Michael had had "trouble with the law with drugs," but she did not tell anyone at Thorough-Clean about Michael's conviction, nor did she review Michael's application to see if it was accurate before she filed it for final approval, and she did not check the references Michael had listed on the application. According to Mary Roberts, she did not review Michael's application because "that was my son" and because she knew that she was not going to be the one to make a final decision on Michael's being hired. Michael was hired as a janitor for Thorough-Clean, without any Thorough-Clean employee's having reviewed his employment application.
In mid-July 1991, while assigned to perform janitorial services at Alabama Power Company's office in Gadsden, Alabama, Michael allegedly raped and robbed S.H., an employee of Alabama Power Company in Gadsden. Michael was not being supervised by Thorough-Clean at the time the alleged incident occurred. S.H. and her husband R.H. sued Thorough-Clean, alleging that S.H. had been proximately injured by what they called Thorough-Clean's "negligent and wanton practices in the hiring, managing and supervising of its employee, [Michael] Roberts." 1 Capital Alliance assumed the defense of Thorough-Clean under a reservation of rights and filed this declaratory judgment action, "seeking a judicial determination of the rights, obligations, and responsibilities of [Capital Alliance] and of [Thorough-Clean] arising out of a written policy of insurance." S.H. and R.H. were allowed to intervene in the declaratory judgment action. S.H., R.H., and Thorough-Clean moved for a summary judgment holding that they were entitled to coverage, and the trial court granted their motion. Capital Alliance appeals.
The relevant provisions of the policy at issue are as follows:
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