Dorsey v. Bowers

• Decision Date: 09 January 1998
• Citation: 709 So.2d 51
• Parties: Clyde DORSEY and Elizabeth Dorsey v. William S. BOWERS et al. William S. BOWERS v. Clyde DORSEY and Elizabeth Dorsey. 2961296.
• Court: Alabama Court of Civil Appeals

Page 51

709 So.2d 51

Clyde DORSEY and Elizabeth Dorsey v. William S. BOWERS et al.

William S. BOWERS v. Clyde DORSEY and Elizabeth Dorsey.

2961296.

Court of Civil Appeals of Alabama.

Jan. 9, 1998.

Jason James Baird, Denise Arden Simmons, and Susan Graham James of Susan G. James & Associates, Montgomery, for appellant/cross appellees Clyde Dorsey and Elizabeth Dorsey.

Michael B. Beers and Christopher J. Hughes of Beers, Anderson, Jackson, Hughes & Patty, P.C., Montgomery, for appellees/cross appellants State Farm Fire & Casualty Co., Mike Sadler, and Renee Rudolph.

Gerald C. Swann, Jr., of Ball, Ball, Matthews & Novak, P.A., Montgomery, for appellee/cross appellant William S. Bowers.

John I. Cottle III of Bowles & Cottle, Tallassee, for appellee/cross appellant Paul W. Davis Systems, Inc.

WRIGHT, Retired Appellate Judge.

Clyde Dorsey and Elizabeth Dorsey filed a complaint in the Elmore County Circuit Court against William S. Bowers; Willie James Thomas; Bowers Enterprises, Inc.; Paul Davis Systems, Inc., of Montgomery; State Farm Fire and Casualty Company; Paul W. Davis Systems, Inc.; Mike Sadler; Renee Rudolph; and various fictitious defendants. The Dorseys alleged claims of conspiracy, fraud, negligence, wantonness, breach of contract, negligent misrepresentation, bad faith, breach of express and implied warranties, negligent hiring, and negligent supervision.

Paul W. Davis Systems, Inc., filed a motion for a summary judgment, which was denied. Thereafter, Bowers filed a motion for a partial summary judgment. State Farm, Sadler, and Rudolph filed a motion for a summary judgment, a supporting brief, and supporting documents. Paul W. Davis Systems, Inc., filed a second motion for a summary judgment. The Dorseys filed oppositions to the summary judgment motions. Following a hearing, the trial court granted Paul W. Davis Systems, Inc., State Farm, Sadler, and Rudolph's summary judgment motions and denied Bowers's motion.

The case against Bowers and Thomas was tried before a jury. Following the completion of their case, Bowers and Thomas moved for directed verdicts on all counts. The trial court directed a verdict in favor of Bowers and Thomas on the Dorseys' breach of express and implied warranties claims only. The jury returned a verdict in favor of the Dorseys and against Bowers and awarded the Dorseys $7,000 in compensatory damages. The jury returned a verdict in favor of Thomas and against the Dorseys. The trial court entered a judgment accordingly. The Dorseys filed a motion for a new trial, which the trial court denied.

The Dorseys appeal, contending that the trial court erred in granting Paul W. Davis Systems, Inc., and State Farm's motions for a summary judgment; that the trial court erred in granting a directed verdict in favor of Bowers and Thomas on the breach of express and implied warranties claims; and that the verdict in favor of Thomas and the verdict against Bowers were inconsistent. Bowers cross-appeals, contending that the trial court erred in denying his motion for a directed verdict.

The record reveals the following pertinent facts. The Dorseys' lake home was damaged by a fire in March 1993. The Dorseys' home was covered by a policy of insurance issued by State Farm. The Dorseys contacted their insurance agent, Sadler, who contacted and introduced them to Bowers. Bowers, a contractor, operates Bowers Enterprises, Inc., which does business as Paul Davis Systems, Inc., of Montgomery, a franchise of Paul W. Davis Systems, Inc. Bowers made arrangements with the Dorseys to survey the damage, and he subsequently submitted an estimate to State Farm.

In a conversation with a claims adjuster, the Dorseys told the adjuster that they decided to have Bowers repair the damage, which included repairing the fireplace and the chimney. The Dorseys contracted with Bowers to make the necessary repairs. Bowers subcontracted the rebuilding of the fireplace and the chimney to Thomas. After the repairs were completed, the Dorseys asked Thomas whether the fireplace was safe. Thomas replied that the fireplace was built to Montgomery City Building Code specifications and that it was safe.

On the third time that the Dorseys used the fireplace, the chimney and surrounding wall caught fire. Mrs. Dorsey testified that the fire damaged some interior and exterior walls, the chimney, the carpeting, and the kitchen floor. The Titus Volunteer Fire Department responded to the fire. The fire chief testified that when he arrived, fire was emanating from the fireplace area and that the firefighters had to knock out a large portion of the fireplace to extinguish the fire. He also testified that the header, a wooden horizontal structural support beam in the wall and incorporated into the masonry of the fireplace, ignited and that the fire spread to the wood frames supporting the roof of the house.

James Munger, a former deputy fire marshal, testified that he visited the Dorseys' house, viewed the header, and reviewed the report from the Titus Volunteer Fire Department. He also reviewed the applicable building and fire codes, as adopted by the State Fire Marshal. He stated that the fireplace construction violated the Southern Building Code requirements, as adopted by the State Fire Marshal, and caused the fire. Munger opined that the second fire was the "result of the wooden header being improperly framed in ... the masonry of the fireplace."

It is undisputed that an employee of Bowers constructed the header before Thomas began work on the chimney. Thomas testified that although he did not measure the distance, there was sufficient clearance between the header and the masonry. He also testified that, in his opinion, the fire occurred because the mortar between the bricks, near the header, had fallen out. Additionally, it is undisputed that during the construction of the chimney, Bowers inspected Thomas's work on three separate occasions.

Mrs. Dorsey called Sadler and reported the fire. Mrs. Dorsey testified that Sadler stated that she and her husband "would be better off going after Mr. Bowers or State Farm would probably cancel [their] homeowner's [policy]." Sadler arranged for a claims adjuster, Rudolph, to inspect the Dorseys' home to evaluate the damage. After she evaluated the damage, Rudolph told Mrs. Dorsey that she would return to the office and prepare an estimate. She also stated that the Dorseys might be better off proceeding against Bowers. Rudolph asked Mrs. Dorsey to call and inform her of their decision. Mrs. Dorsey called Rudolph and stated that she and her husband were going after Bowers, and Rudolph stated that she would hold off on the estimate. Mrs. Dorsey testified that Rudolph gave no indication that State Farm would refuse to pay for the second fire loss and admitted that she did not submit a claim to State Farm for damages from the second fire.

A motion for a summary judgment may be granted when no genuine issue of a material fact exists and the moving party is entitled to a judgment as a matter of law. Hand v. Greensprings Storage, 678 So.2d 1187 (Ala.Civ.App.1996). If the moving party makes a prima facie showing that no genuine issue of a material fact exists and that it is entitled to a judgment as a matter of law, the burden shifts to the nonmovant to present substantial evidence demonstrating the existence of a genuine issue of a material fact. Id.

The Dorseys argue that State Farm was not entitled to a summary judgment on their breach of contract and bad faith claims. Specifically, they argue that they made an informal or constructive claim for the damage resulting from the second fire in their home and that Sadler's statement--that their insurance might be canceled if they made a claim--was a constructive denial of their claim. This argument is without merit. Mrs. Dorsey admitted that she did not make a claim for the fire damage and that she was never told that State Farm would refuse to pay for the damage. Likewise, we find that the Dorseys' argument--that State Farm's failure to pay their claim was in bad faith--is without merit.

The Dorseys also argue that Sadler and State Farm used economic duress to prevent them from filing a claim. To establish economic duress, a party must show " '(1) wrongful acts or threats; (2) financial distress caused by the wrongful acts or threats; [and] (3) the absences of any reasonable alternative to the terms provided by the wrongdoer.' " Ponder v. Lincoln National Sales Corp., 612 So.2d 1169, 1171 (Ala.1992) (quoting Clark v. Liberty Nat'l Life Ins. Co., 592 So.2d 564, 567 (Ala.1992)). Furthermore "[a] claim of economic duress cannot be based merely upon the grounds of driving a hard bargain. Rather, the 'wrongful act' prong of the test ... is not satisfied unless the victim has acted in response to unlawful or unconscionable pressure." Ponder, 612 So.2d at 1171. Moreover, "[t]he doctrine of economic duress applies only to 'special, unusual, or extraordinary situations in which unjustified coercion is used to induce a contract, as where extortive measures are employed, or improper or unjustified demands are made, under such circumstances that the victim has little choice but to accede thereto.' " Ponder, 612 So.2d at 1171 (quoting Clark v. Liberty Nat'l Life Ins. Co., 592 So.2d at 567). Based upon our review of the record, we conclude that the Dorseys failed to produce substantial evidence to establish the elements of economic duress.

The Dorseys next argue that the trial court erred in granting State Farm's summary judgment motion because there was discovery pending. The mere pendency of discovery requests does not bar a summary judgment. Hope v. Brannan, 557 So.2d 1208 (Ala.1989). "However, if it can be ascertained that discovery is crucial to the nonmoving party's case, then it is error for the trial court to enter a summary judgment before the discovery has been completed." Hope, 557 So.2d at 1212. The burden is on the nonmoving party...