Earnest v. Pritchett-Moore, Inc., PRITCHETT-MOOR
| Decision Date | 10 July 1981 |
| Docket Number | INC,PRITCHETT-MOOR |
| Citation | 401 So.2d 752 |
| Parties | James H. EARNEST v., et al. 80-196. |
| Court | Alabama Supreme Court |
Albert G. Lewis, III of Turner, Turner & Turner, Tuscaloosa, for appellant.
James J. Jenkins of Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, for appellees.
Appeal from the grant of summary judgment in favor of all defendants. We affirm.
The complaint alleged fraudulent misrepresentations against all defendants arising out of an attempt to effect an insurance adjustment following collision damage to the plaintiff's vehicle. In Count One plaintiff alleged:
....
4. That on or about the 12th day of May, 1980, Gragg Robinson, an agent of Pritchett-Moore, Inc., while acting within the line and scope of his authority, authorized the Plaintiff to have his automobile repaired and averred that All Risk Insurance Company, the insurance carrier for the automobile driven by Dwayne Richardson, (who allegedly drove the vehicle which negligently struck the plaintiff's vehicle) would remit a check ...
5. The representations made by the Defendant, Pritchett-Moore, Inc., by their agent, Gragg Robinson and by the Defendant, All Risk Insurance Company, through their agent, Pritchett-Moore, Inc., were false and the Defendant, without knowledge of the true facts, recklessly misrepresented them, or in the alternative, were made by mistake, with the intention that the Plaintiff should rely upon them.
6. That the Plaintiff believed the representations and in reliance thereupon, had his automobile repaired and expended the sum of Four Hundred Thirty-Six and No/100 ($436.00) Dollars for this repair.
Count Two adopted paragraphs 1 through 6 of Count One and added:
2. Subsequent to the repair of the Plaintiff's automobile, the Defendant, Crawford & Company, while acting in concert with the Defendants, Pritchett-Moore, Inc., and All Risk Insurance Company, Inc., undertook to appraise the damages sustained by the Plaintiff's automobile.
3. That at the time of the said appraisal, the Defendant Crawford & Company knew or had reason to know that the Plaintiff had expended the sum of Four Hundred Thirty-Six and No/100 ($436.00) Dollars for the repair of the damages sustained by the Plaintiff's automobile.
4. That at the time of said appraisal, the Defendant, Crawford & Company knew or had reason to know that the Plaintiff had at the request of the Defendant, Pritchett-Moore Inc., obtained various estimates for the repair of the damages sustained in the accident ranging from Four Hundred Thirty-Six and No/100 ($436.00) Dollars to Seven Hundred Fifty-One and No/100 ($751.00) Dollars and knew or had reason to know that these estimates represented fair and reasonable charges for the repair of the damages sustained by the automobile.
5. That subsequent to the aforesaid appraisal, the Defendant, Crawford & Company appraised the damages to the Plaintiff's car at One Hundred and No/100 ($100.00) Dollars, knowing or having reason to know that the damages sustained by the aforesaid automobile were much more expensive.
6. That the aforesaid appraisal was made solely for the purpose of defrauding the Plaintiff.
The plaintiff claimed $436.00 actual damages and $10,000.00 punitive damages from both Pritchett-Moore and All Risk Insurance Company jointly, and the same amounts from Crawford and Company individually. By amendment the punitive damages claim was increased to $100,000.00. All defendants filed answers. Thereafter the defendants moved for summary judgment: Pritchett-Moore's motion being based upon the pleadings, the plaintiff's deposition, the plaintiff's answers to interrogatories of All Risk and Crawford and Company, and documents produced by the defendants in response to plaintiff's requests for production; All Risk and Crawford and Company relied upon the pleadings, the plaintiff's deposition and the plaintiff's answers to interrogatories. Following a hearing on these motions the trial court granted the motions, and the plaintiff appealed.
Whether summary judgment was proper as to each defendant is the question before us.
It is important to test the evidence before the trial court with the principles of law upon which the plaintiff was relying. Under the allegations of the complaint it is apparent that plaintiff was relying upon Code of 1975, § 6-5-101:
Misrepresentations of a material fact made willfully to deceive, or recklessly without knowledge, and acted on by the opposite party, or if made by mistake and innocently and acted on by the opposite party, constitute legal fraud.
Under this principle there must be (1) a false representation (2) concerning a material existing fact (3) relied upon by the plaintiff (4) who must be damaged as a proximate result. International Resorts, Inc. v. Lambert, Ala., 350 So.2d 391 (1977) and cases cited.
The evidence establishes that the plaintiff's pick-up truck was damaged by another automobile driven by one Dwayne Richardson. The plaintiff ascertained at the scene that Richardson's insurance agency was Pritchett-Moore, Inc., and that Richardson's agent was one Gragg Robinson. The next morning he went to see Robinson:
I told him what had happened and he got the secretary to pull the man's record. And we talked about it a few minutes. Then he told me to go out and get some estimates, which I did.
The agent had told plaintiff to obtain two estimates; however, he actually obtained three, one each from Campbell's Body Shop, the "Buick place," and Horton's Garage. He delivered two of these to the agent, the Campbell's and Buick estimates. The plaintiff deposed further:
Q And you turned them in to him?
A Yes, sir.
Q And what did you all say or agree you'd do? What was your understanding about what was going to happen next?
A Well, I believe that I asked him about, you know, about how long it would take to settle and he said he didn't think it would take long.
Q Did he tell you someone would be in touch with you?
A He said that the insurance company should get with me in about a week.
Q In other words, you understood that he was going to send these estimates to the insurance company?
A Right.
Q And he said that someone representing the insurance would be in touch with you in about a week?
A Right.
Q Did he say who he thought that might be?
A No, sir, he didn't say.
Q Did he indicate it would be someone other than himself, though?
A He didn't say, sir. I assumed he meant someone else, I didn't know.
Q Did you ever have any further conversations or dealing with Mr. Robinson?
A I did ask him about going ahead and getting my truck fixed. He said go ahead and have it fixed.
Q When was this that you all had that conversation?
A The same day, sir.
Q You asked him if you could go ahead and have it fixed?
A I asked--He said it would take about a week. I said, "Well, would it be all right if I go ahead and put my truck in the shop?" He said, "I see no problem there."
Q Well, let's focus in on that conversation, then, to try to pinpoint exactly what was said. Was this before or after he's told you that someone from the insurance company would be in touch with you in about a week?
A Best I can remember, it was after.
Q Okay. And you, then, brought up the idea: Could you go ahead and put your truck in the shop?
A Right. Because I had a specific reason why.
Q And what was that?
A I had to be in Mississippi the following weekend for Guard drill. They have some regulations on entering a military post about damaged vehicles.
Q And did you tell that to Mr. Robinson?
A Yes, sir.
Q All right. And--Strike that.
And he simply said--Well, tell me. You said, "Can I go ahead and put it in the shop?"
A Yes, sir.
Q And what did he say in response to that?
A He said, "I don't see any problems if you need the truck."
Q He said, "I don't see any problem if you need the truck?"
A Right.
Q Now, I think I asked a minute ago, but to make sure before I move on to something else: Did you have any further dealings with Mr. Robinson that you can recall?
A At this time?
Q Well, I guess at any time along.
A I'm trying to think whether I got the letter from All Risk before I called him back or not. I'm going to say no but I'm not sure. I don't believe we did.
Q Okay. What's the next thing that happened then? Did you take your truck and put it in the shop?
A Yes, I took the truck and put it in the shop.
Q Where did you put it?
A Put it in Allen's Body Shop.
Q And why did you put it in Allen's Body Shop?
A Because I asked him about getting--He works with Horton's Body Shop. And I asked him, I said, So I asked him, I says, "Will you fix the truck here at Horton's for what Campbell's would? " Yeah," said, "we'll fix it for a dollar less. " And he gave me an estimate. I said, "Well, will that be permissible with the insurance company? " He said, " I said all right.
Q Now, I assume that when you had the conversation you've already testified to about--with Mr. Robinson; that is, you wanted to know if you could put it in the shop, you didn't tell him which shop you were planning on putting it in?
A No. I didn't have any idea at that time which shop I was going to put it in.
Q So he had no idea that you might be taking it to Horton's or what Horton might fix it for or what Mr. Allen might fix it for?
A What he told me was--I asked him, I said, "Well, I need to get my truck fixed." He said, "Well, the insurance company will pay the amount of the lowest estimate." That was my understanding.
Q All right. Well, did he make a definite absolute binding commitment to you: Don't worry, they're going to pay the lowest estimate no matter what? Or was it as you said earlier, he said the insurance company would be in touch with you in about a week?
A He said the insurance company will take care of it. I told him; turned in the cheapest estimate. He said that...
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