Capital Alliance Ins. Co. v. Thorough-Clean, Inc., THOROUGH-CLEA

• Court: Supreme Court of Alabama
• Citation: 639 So.2d 1349
• Docket Number: THOROUGH-CLEA,INC
• Parties: CAPITAL ALLIANCE INSURANCE COMPANY v., et al. 1930064.
• Decision Date: 01 April 1994

Page 1349

639 So.2d 1349 CAPITAL ALLIANCE INSURANCE COMPANY
v.
THOROUGH-CLEAN, INC., et al. 1930064. Supreme Court of Alabama. April 1, 1994.

Steve P. Brunson and Rebecca A. Walker of Simmons, Brunson, Sasser and Callis, Attorneys,

Page 1350

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.

HOUSTON, Justice.

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...