Holley v. St. Paul Fire & Marine Ins. Co.
| Decision Date | 26 March 1981 |
| Citation | 396 So.2d 75 |
| Parties | Ava Nora HOLLEY v. ST. PAUL FIRE & MARINE INSURANCE COMPANY et al. 79-781. |
| Court | Alabama Supreme Court |
Johnnie B. Byrd, Jr. of Caffey & Byrd, Brewton, for appellant.
Harold Albritton of Albrittons & Givhan, Andalusia, for appellee St. Paul Fire & Marine Ins. Co.
A. Neil Hudgens and James P. Green of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, for appellee Service Master Industries, Inc.
Ava Holley, plaintiff, appeals from the grant of a motion to dismiss in favor of the defendants, St. Paul Fire & Marine Insurance Co. (St. Paul) and Service Master Industries, Inc. (Service Master). We reverse and remand.
This litigation commenced with Holley's action filed on July 7, 1977 in which she claimed damages for personal injuries suffered in a fall which occurred on the premises of the Abernathy Memorial Hospital in Flomaton on August 10, 1976. Her original complaint named that hospital as defendant. That complaint was amended twice. In February 1980 the first amendment to the complaint was filed:
COUNT II
1. That on or about August 28, 1976, there was in full force and effect a contractual relationship between Escambia County Hospital Board and the Defendant, Servicemaster Industries, Inc. wherein said Defendant was to maintain the lighting of the premises at Abernathy Hospital in Flomaton, Alabama. That in return for the consideration flowing from Escambia County Hospital Board said Defendant performed inspections of the premises for safety and maintained the lighting of the premises of Abernathy Hospital, Inc. in Flomaton, Alabama.
2. That on or about the above mentioned date, the Plaintiff was injured upon the premises of the Escambia County Hospital Board at the Abernathy Hospital in Flomaton, Alabama due to negligent lighting and other defects in the premises.
3. The Plaintiff, Ava Nora Holley, was third party beneficiary of the contractual relationship between the two defendants.
4. The Defendant Servicemaster Industries, Inc. breached its agreement with Escambia County Hospital Board directly and proximately resulting in the injury to the Plaintiff.
The Plaintiff suffered physical injury, mental injury and incurred medical expenses as a result of the breach of said contract.
Wherefore, Plaintiff demands judgment against Servicemaster Industries, Inc. in the sum of $500,000, interest and costs.
COUNT III
1. That on or about August 28, 1976, there was in full force and effect a contractual relationship between Escambia County Hospital Board and the St. Paul Fire & Marine Insurance Company insuring said Escambia County Hospital Board. That as part of the consideration flowing from the above named insurance company to the Escambia County Hospital Board said insurance company performed inspections of the premises for safety.
2. That on or about the above mentioned date, the Plaintiff was injured upon the premises of the Escambia County Hospital Board at the Abernathy Hospital in Flomaton, Alabama.
3. The Plaintiff, Ava Nora Holley, was a third party beneficiary of the contractual relationship between the two Defendants.
4. The defendant insurance company breached its agreement with Escambia County Hospital Board directly and proximately resulting in the injury to the Plaintiff.
The Plaintiff suffered physical injury, mental injury and incurred medical expenses as a result of the breach of said contract.
Service Master moved to dismiss Count II of the first-amended complaint:
1. Said count fails to state a cause of action against this defendant upon which the relief prayed for can be granted.
2. Said count fails to allege sufficient facts to show the existence of any contractual relationship whereby the plaintiff would be a third party beneficiary.
3. Said count alleges this defendant breached its agreement with Escambia County Hospital Board but fails to allege the manner of such breach.
4. It affirmatively appears from the allegations of said count that the claim attempted to be stated against this defendant is barred by the one year statute of limitations.
St. Paul moved to dismiss Count III of the first-amended complaint:
1. Said Count fails to state a claim against this defendant upon which relief may be granted.
2. Said Count alleges that this defendant breached an agreement with Escambia County Hospital Board, but fails to allege the manner of such breach.
3. It affirmatively appears from the allegations of said Count that the claim attempted to be stated against this defendant is barred by the statute of limitations of one year.
Later, in June 1980 these counts were amended again:
COUNT II
1. That on or about August 28, 1976, there was in full force and effect a contractual relationship between Escambia County Hospital Board and the Defendant, Servicemaster Industries, Inc. wherein said Defendant promised to relamp lighting fixtures as necessary and/or to maintain a high quality of maintenance service by inspecting the premises at Abernathy Hospital in Flomaton, Alabama. That the Defendant breached its promises as set out above.
2. That on or about the above mentioned date, the Plaintiff was injured upon the premises of the Escambia County Hospital Board at the Abernathy Hospital in Flomaton, Alabama as a proximate consequence of the breach of the contract maintenance.
3. The Plaintiff, Ava Nora Holley, was a third party beneficiary of the contractual relationship between the two Defendants.
4. The Defendant Servicemaster Industries, Inc. breached its agreement with Escambia County Hospital Board directly and proximately resulting in the injury to the Plaintiff.
The Plaintiff suffered physical injury, mental injury and incurred medical expenses as a result of the breach of said contract.
Wherefore, Plaintiff demands judgment against Servicemaster Industries, Inc. in the sum of $500,000, interest and costs.
COUNT III
1. That on or about August 28, 1976, there was in full force and effect a contractual relationship between Escambia County Hospital Board and the St. Paul Fire & Marine Insurance Company insuring said Escambia County Hospital Board. That as part of the consideration flowing from the above named insurance company to the Escambia County Hospital Board said insurance company agreed expressly and/or implicitly to perform inspections of the premises for safety. That the conduct of the Defendant in making inspections prior to issuing the policy and in the years 1978 and 1979, but not in the year of the injury, coupled with the fact that the rate charged for the policy included specific charges for inspections as part of the premium, together created a contractual obligation or promise implied in fact on the part of the insurer to perform inspections. Further, the course of dealing with the parties, as well as, the usage of trade, imply a contractual obligation to inspect.
2. That on or about the above mentioned date, the Plaintiff was injured upon the premises of the Escambia County Hospital Board at the Abernathy Hospital in Flomaton, Alabama.
3. The Plaintiff, Ava Nora Holley, was a third party beneficiary of the contractual relationship between the two Defendants.
4. The Defendant insurance company breached its agreement with Escambia County Hospital Board by not performing said inspections thereby directly and proximately resulting in the injury to the Plaintiff.
The Plaintiff suffered physical injury, mental injury and incurred medical expenses as a result of the breach of said contract.
Wherefore, Plaintiff demands judgment against St. Paul Fire & Marine Insurance Company in the sum of $500,000, interest and costs.
Again, Service Master moved to dismiss the second-amended Count II:
1. Said count fails to state a cause of action against this defendant upon which the relief prayed for can be granted.
2. Said count fails to allege sufficient facts to show the existence of any contractual relationship whereby the plaintiff would be a third party beneficiary.
3. Said count alleges this defendant breached its agreement with Escambia County Hospital Board but fails to allege the manner of such breach.
4. It affirmatively appears from the allegations of said count that the claim attempted to be stated against this defendant is barred by the one year statute of limitations.
And St. Paul moved to dismiss the second-amended Count III:
1. Said Count fails to state a claim against this defendant upon which relief may be granted.
2. Said Count fails to allege sufficient facts to show the existence of any contractual relationship.
3. It affirmatively appears from the allegations of said Count that the claim attempted to be stated against this defendant is barred by the statute of limitations of one year.
After the trial court had granted the motions to dismiss the second-amended Counts II and III, the trial court entered the following order:
The Court having heretofore granted motions to dismiss filed by St. Paul Fire and Marine Insurance Co. and Service- Master Industries, Inc. by order dated June 26, 1980 and it further appearing to the Court that there are still pending amended complaints against said Defendants, St. Paul Fire and Marine Insurance Co. and Service-Master Industries, Inc., and it further appearing to the Court that said Defendants have reassigned their motions to dismiss as to said amended complaints and the Court being of the opinion that said motions to dismiss as reassigned to said amended complaints should be granted, it is accordingly,
ORDERED, ADJUDGED AND DECREED that the Amended Complaint filed on February 7, 1980 against St. Paul Fire and Marine Insurance Co. and Service-Master Industries, Inc. and the Second Amended Complaint filed on June 11, 1980 against St. Paul Fire and Marine Insurance Co. and Service-Master Industries, Inc. be dismissed and the Motions to Dismiss filed by the Defendants herein are granted....
The trial court then made a Rule 54(b)...
To continue reading
Request your trial
-
Harris Moran Seed Co., Inc. v. Phillips
...it is permissible for the court to look at the surrounding circumstances as well as the agreement itself. See Holley v. St. Paul Fire & Marine Ins. Co., 396 So.2d 75, 80 (Ala.1981). The dealer agreement, dated June 24, 1998, set out the terms and conditions under which HMSC agreed to sell t......
-
Storts v. Hardee's Food Systems, Inc.
...sufficient to survive motion for summary judgment; no specific discussion of third-party beneficiary) and Holley v. St. Paul Fire & Marine Ins. Co., 396 So.2d 75 (Ala.1981) (hospital visitor may be third-party beneficiary of maintenance contract). The court has read and considered these cas......
-
Custer v. Homeside Lending, Inc.
..."servicing agreement" between Homeside and WNC. In support of their argument, the Custers refer the Court to Holley v. St. Paul Fire & Marine Ins. Co., 396 So.2d 75 (Ala.1981). In that case, this Court, after considering the surrounding circumstances of the parties to the contract, as allow......
-
Poague v. Huntsville Wholesale Furniture
...evaluating the directness and intentionality of contractual benefit, courts look beyond a contract's text. See Holley v. St. Paul Fire & Marine Ins. Co., 396 So. 2d 75, 80 (Alabama courts look to "the surrounding circumstances" to "ascertain the existence of [a] direct benefit"). By conside......