GONZALEZ, LLC v. DiVincenti

• Decision Date: 13 September 2002
• Parties: GONZALEZ, LLC v. Roy DiVINCENTI and Professional Forensic Services, Inc. Roy DiVincenti and Professional Forensic Services, Inc. v. Gonzalez, LLC.
• Court: Alabama Supreme Court

844 So.2d 1196

GONZALEZ, LLC v. Roy DiVINCENTI and Professional Forensic Services, Inc.

Roy DiVincenti and Professional Forensic Services, Inc. v. Gonzalez, LLC.

1011.

Supreme Court of Alabama.

September 13, 2002.

David F. Daniell of Daniell, Upton, Perry & Morris, P.C., Mobile, for appellant/cross-appellee Gonzalez, LLC.

Mark E. Spear and John M. Hunter of Richardson, Spear & Spear, P.C., Mobile, for appellee/cross-appellants Roy DiVincenti and Professional Forensic Services, Inc.

SEE, Justice.

Gonzalez, LLC, owns the former Scottish Rite Temple in Mobile County. After the Temple allegedly suffered damage in 1997 from Hurricane Danny, Gonzalez, LLC, filed a claim with TIG Insurance Company and K & K Insurance Group under its insurance policy, which provided coverage for wind and hurricane damage. Gonzalez, LLC, claims that its insurance agent, Mark Rowley, repeatedly assured it that its claim would be paid. In 1998, while Gonzalez, LLC, was waiting for payment on the claims resulting from damage caused by Hurricane Danny, Hurricane Georges made landfall, allegedly causing more damage to the Temple. Gonzalez, LLC, filed a claim for the damage caused by Hurricane Georges, and this claim was promptly denied. After Gonzalez, LLC, discovered that payment was not forthcoming on its claims for the damage from Hurricane Danny and after the claim for the damage from Hurricane Georges had been denied, Gonzalez, LLC, in 1999 sued its insurance agent, Mark Rowley; its insurance agency, Oakleigh Insurance Agency; its insurance providers, K & K Insurance Group and TIG Insurance Company; several fictitiously named parties; and the agents or representatives of all the defendants. Gonzalez, LLC, alleged negligent failure to report a claim; wanton failure to report a claim; fraud in misrepresenting that the hurricane-damage claim would be paid; breach of contract for failure to investigate, handle, or pay the covered loss; negligent failure to supervise agents and representatives; and bad faith in failing to investigate and refusing to pay claims.

After Gonzalez, LLC, filed this action, the defendants hired Professional Forensic Services, Inc. ("PFS"), and its president, Roy DiVincenti, to perform forensic testing on the roof of the Temple to determine what damage, if any, had been done by wind and rain. Before PFS began testing, Scott Gonzalez, the president of Gonzalez, LLC, signed a release purporting to release PFS from liability for any damage done to the roof during testing.

The liability release stated:

"In consideration of TIG Insurance Company, K & K Insurance Group, Badger-Stonewall Insurance Agency¹ and Mark Rowley (hereinafter known as Releasees) bearing responsibility for professional services compensation for forensic engineering investigation and testing performed by Professional Forensic Services, Inc. (hereinafter, `PFS') on the Scottish Rite Temple (hereinafter `Property') with respect to reported claims of wind damage and water intrusion to the Property, the undersigned, Scott Gonzalez, Gonzalez, LLC, and Scottish Rite Temple, hereby fully releases both Releasees and PFS from any damages or liability with respect to water intrusion and/or inability to exactly match paint colors and/or aesthetic finish textures, or exposure/releasing of environmental contaminants (NOTE: work will cease immediately, should this occur) associated with the work scope to be performed on the Property by PFS in the sampling of claim-pertinent materials from the Property. Releasors agree to said release based on the understanding that the repairs will be performed by a qualified licensed General Contractor and that every attempt will be made to match the present exterior colors and surface-visible sampling materials from the `sampling' locations. Releasors fully release both Releasees and PFS from any damage or liability with respect to any leaks that may arise on the Property as a result of the roof material sampling. Releasors agree to said release based on the understanding that a roofing contractor, licensed to practice in the State of Alabama, will perform the repairs for the sampled locations on the roof. Releasees and PFS agree to contact the Releasors or Releasors' attorney prior to taking any sample of any claim pertinent material to allow the photographing and cataloging of any such sample. Releasees and PFS also agree to provide a portion of any sample taken to Releasors or Releasors' attorney."

After Scott Gonzalez agreed to the terms of the release, PFS tested the roof of the Temple. This testing included inserting numerous nails into the roof at regular intervals. Gonzalez, LLC, claims that inserting the nails into the roof pierced the water barrier in the roof, permitting additional water damage to the roof and the building. Gonzalez, LLC, claims that the additional damage requires that the roof be replaced. PFS, on the other hand, claims that the nails used in testing were pushed in with the inspectors' thumbs or were "lightly tapped" in with a hammer and that they were not long enough to pierce the water barrier in the roof.²

After PFS completed its testing, Gonzalez, LLC, filed an amended complaint, alleging the claims set out above, and including the following allegation:

"14. Suit was filed on July 28, 1999. After filing of suit, TIG, A, B, C, Rowley, K & K, D, E, F and/or G, began an investigation of the Plaintiff's loss. In June of 2000, during this investigation, TIG, A, B, C, K & K, D, E, F, and/or G, negligently damaged the roof of the Temple, by driving nails through its surface, necessitating extensive repair, for which it has refused to pay."

After filing this amended complaint, Gonzalez, LLC, agreed to settle the action. The parties signed two different releases, the first dated October 9, 2000; that release read, in part:

"For, and in consideration of the sum of One Hundred Sixty Thousand and no/100 Dollars ... We, Scott Gonzalez, Siobhan Gonzalez [Scott's wife], and Gonzalez, LLC, of Mobile, Alabama (THE RELEASING PARTIES), do hereby RELEASE AND FOREVER DISCHARGE Mark Rowley, Mark Rowley d/b/a Oakleigh Insurance Agency, Oakleigh Insurance Agency, Inc., and all of their employees and agents, from all claims, liability, and losses, whether heretofore or now existing, or hereafter accruing and/or occurring, arising out of or related, directly, or indirectly, in whole or in part, to the following subject matter:

"The policy of insurance issued by TIG Insurance Company, through Mark Rowley, on or about March 25, 1997, wherein Scott Gonzalez and Siobhan Gonzalez are listed as the Named Insureds; any and all claims for proceeds and/or benefits claimed to have accrued to or for the benefit of the RELEASING PARTIES, or any of them, ... including, but not limited to all events and circumstances related to the purchase of such insurance and/or the presentation of claims for benefits and/or coverage under said insurance as a result of Hurricane Danny and Hurricane Georges in July 1997 and September 1998, respectively, in Mobile County, Alabama, resulting in damage to the Scottish Rite Temple.... The Subject Matter of this Release also includes all claims and issues raised, or which could be raised, in that civil action ... styled Scottish Rite Temple, Scott Gonzalez, Siobhan Gonzalez, and Gonzalez, L.L.C., Plaintiffs v. Badger-Stonewall Insurance Agency, Inc., et al., Defendants."

The second release of claims, signed by the parties on October 25, 2000, stated, in pertinent part:

"This agreement is intended to effect the extinguishment of all obligations hereafter designated against all parties who were or could have been sued by Plaintiffs, arising from Plaintiffs' ownership of the Scottish Rite Temple (`Temple') and/or arising from any damage resulting to the Temple from any event whatsoever, whether weather related or non-weather related.

"....

"Whereas, after such mediation and settlement efforts, Plaintiffs agreed to dismiss their claims with prejudice as to TIG Insurance Co. and K & K Insurance Group and to release all claims and all potential claims against TIG Insurance Co. and K & K Insurance Group and any other individual or entity affiliated with them and their related business entities, their employees, their officers, their attorneys, and their agents;

"2. TIG Insurance Co. and K & K Insurance Group will pay collectively a total sum of $840,000 to [attorneys for Gonzalez, LLC]....

"....

"11. Reservation of Claim: Notwithstanding any other provision or agreement in this Final Release and Indemnity Agreement, Plaintiffs do not release any claim that they might have against Roy DiVincenti arising solely from Mr. DiVincenti's alleged actions in placing nails in the roof of the Temple."

After the settlement of the original action for a combined total payment of $1 million, Gonzalez, LLC, filed the present action against DiVincenti and PFS. After an amendment, the complaint alleged that DiVincenti, as an individual, and PFS were liable under theories of negligence, breach of contract, and misrepresentation or suppression for damages resulting from PFS's inspection of the Temple's roof. DiVincenti and PFS moved for the payment of attorney fees under the Alabama Litigation Accountability Act, Ala.Code 1975, § 12-19-270 et seq. They later moved for a summary judgment as to all claims against them under the doctrines of res judicata and collateral estoppel. The trial court granted the motion for a summary judgment on August 24, 2001; it did not certify this order as a final judgment under Rule 54(b), Ala. R. Civ. P.

On September 5, 2001, the trial court noted in the case-action log that it was aware that it had not ruled on the motion for attorney fees, and that it thought that reasonable attorney fees were warranted in this case. It, therefore, assigned the previously appointed mediator in the case to determine DiVincenti and PFS's attorney fees. On September 19, 2001, Gonzalez, LLC, filed...