Home Ins. Co. v. Stuart-McCorkle, Inc.

• Decision Date: 08 November 1973
• Docket Number: STUART-M
• Parties: , 91 A.L.R.3d 833 The HOME INSURANCE COMPANY, a corporation v.cCORKLE, INC., et al. SC 155.
• Court: Alabama Supreme Court

Page 468

285 So.2d 468

291 Ala. 601, 91 A.L.R.3d 833

The HOME INSURANCE COMPANY, a corporation v. STUART-McCORKLE, INC., et al.

SC 155.

Supreme Court of Alabama.

Nov. 8, 1973.

Rehearing Denied Dec. 6, 1973.

Miller & Hoffmann, Montgomery, for appellant.

Oakley Melton, Jr., Montgomery, for appellee Virgil Rawson, d/b/a A--1 Roofing and Sheet Metal Contractors.

Hill, Hill, Stovall, Carter & Franco and William A. Oldacre and John M. Milling, Jr., Montgomery, for appellee Stuart-McCorkle, Inc.

Jones, Murray, Stewart & Yarbrough, Montgomery, for appellee Sherlock, Smith & Adams, Inc.

Ball, Ball, Matthews & Lamar, Montgomery, for appellee Dow Chemical Co.

BLOODWORTH, Justice.

This is an appeal by the Home Insurance Company (original defendant and third-party plaintiff) from an adverse judgment on its third-party claim against the four appellees (third-party defendants). We affirm, being convinced that the third-party action was barred by the statute of limitations.

The original action was filed by Scholoss & Kahn against Home Insurance Company for benefits under an all-risk insurance policy issued to it by Home. The loss claimed was for damages due to ice in the walls and flooring of a large warehousesize freezer unit used by Schloss & Kahn in its business. Home filed a third-party action against the contractor, Stuart-McCorkle, Inc.; the subcontractor, Virgil Rawson (doing business as A--1 Roofing and Sheet Metal Contractors); the architect, Sherlock, Smith & Adams, Inc.; and Dow Chemical Company; appellees herein. Home's third-party complaint claimed a right of subrogation against the third-party defendants for their alleged negligence in causing the damages complained of by Schloss & Kahn in the original action.

At trial, after the conclusion of the evidence presented by Schloss & Kahn and Home (and before any evidence was introduced by the third-party defendants), the cause was submitted to the jury on the original action only. The trial court granted affirmative charges in favor of third-party defendants, Stuart-McCorkle and A--1 Roofing, on the grounds that the one-year statute of limitations applicable to negligence actions barred the suit. The trial court also granted affirmative charges in favor of third-party defendants, sherlock, Smith & Adams, Inc. and Dow Chemical Company, on the grounds of insufficiency of the evidence.

The jury returned a verdict of $93,390 in favor of Schloss & Kahn against Home, and a verdict in favor of each of the third-party defendants. Judgment was entered accordingly. On this appeal, Home challenges only the judgment in favor of the third-party defendants claiming error in the action of the trial judge in granting the affirmative charges.

The facts of this cause are as follows. In November, 1968, Schloss & Kahn, a wholesale grocery firm, was having a new, large warehouse-size freezer addition built which was to adjoin, with a common wall, an existing freezer at its place of business in Montgomery, Alabama. Sherlock, Smith & Adams had provided architectural and engineering services in connection with the new addition; Stuart-McCorkle was the general contractor in charge of the project; A--1 Roofing was a subcontractor with responsibility for the roofing work on the new freezer; and Dow Chemical Company apparently published booklets on freezer construction which were consulted. (Appellant Home admits in brief that the affirmative charge was proper as to Dow; we will, therefore, pretermit further discussion of Dow's role in this case.)

On the morning of Friday, November 8, 1968, the contractor opened the roof in the old freezer unit in order to 'tie' the roofs of the old and new freezers together. The roofers left the job about 10:00 a.m. that morning without having completed the joinder and leaving an open space between the two roofs. Heavy rains fell that weekend. On Monday, November 11, rainwater was discovered coming through this open space into an interior office (next to the freezer wall) and into the freezer units. The water and resulting ice in the freezer unit were removed. There was damage to the plaster and paint in the office. No immediate evidence of damage to the structure was observed. However, on December 17, 1968, the doors in the common wall were cut and ice was observed in the insulation of the wall.

On December 30, 1968, Stuart-McCorkle wrote a letter to Schloss & Kahn, with copies to various parties, in which it stated that, in its opinion, the parties should wait until the next summer to see if any damage had been done to the freezer.

No other effects of the water were noticed until December 7, 1970, when a crack was noticed in the freezer floor. The damage has increased since that date, apparently due to continued expansion of ice in the walls and flooring caused by the rainwater which fell in November, 1968.

The first matter presented for our consideration is a motion by appellees to dismiss this appeal. Appellees argue that the appeal of only the judgment on the third-party complaint amounts to a severance of the original action and the third-party action contrary to the rule announced in F. R. Hoar & Son, Inc. v. Florence, 287 Ala. 158, 249 So.2d 817 (1971).

With this we cannot agree. The Hoar case involved severance of an original action and a third-party action for separate trial which we found was not authorized by Title 7, § 259, Code of Alabama, as amended. Neither the Hoar case nor Code § 259, however, addresses itself to the issue of the appealability of a verdict and judgment on a third-party complaint. We can see no sound reason for extending the doctrine of the Hoar case. There is at least one sound reason to permit this appeal, namely that to hold otherwise would foreclose a review of the third-party claim alone.

Turning now to the merits of this cause, third-party plaintiff, Home, argues that the trial judge committed reversible error in granting the affirmative charge in favor of third-party defendants, Stuart-McCorkle and A--1 Roofing. It is Home's contention that the one-year statute of limitations did not begin to run until the damage to the structure was discovered on December 7, 1970, and that the filing of the original action by Schloss & Kahn against Home on December 3, 1971 (within one year from that date) tolled the statute of limitations as to the third-party defendants; or, in the alternative, that the statute of limitations did not begin to run until Home incurred liability to Schloss & Kahn; or, finally, that the third-party defendants are estopped by statements in the letter of December 30, 1968, from asserting the statute of limitations.

Home contends that the trial judge committed reversible error in granting the general affirmative charge in favor of third-party defendant, Sherlock, Smith & Adams, Inc. Home argues that the use of hollow brick in the interior freezer wall, which would permit ice to form in the wall, despite warnings against such a practice by Dow publications (upon which the architects admittedly relied in designing freezers), was sufficient evidence to require the question of the architects' negligence to go to the jury under the rule in Lawson v. General Telephone Company of Alabama 289 Ala. 283, 267 So.2d 132 (1972). Home also adopts the same theory with respect to the statute of limitations as it argues with respect to the other third-party defendants.

Appellees variously contend the following: that the statute of limitations commenced to run November 11, 1968 (when the water first entered the building); that, even if the statute of limitations did not begin to run until December 7, 1970 (when the extensive damage was seen), the statute was not tolled until the third-party claim was filed on March 15, 1972; and, finally, appellee Sherlock, Smith & Adams argues that the record is devoid of evidence of its negligence.

In view of the result we reach, it is only necessary to consider whether or not the action against the third parties was barred by the statute of limitations.

Appellant Home contends that the statute of limitations did not commence to run against it, as a third-party plaintiff, until judgment was entered against it in the original action or alternatively until the judgment was paid. In support of this proposition, Home cites the following cases: Kantlehner v. United States, 279 F.Supp. 122 (E.D.N.Y.1967); Wolverine Ins. Co. v. Tower Iron Works, Inc., 370 F.2d 700 (1st Cir. 1966); United States v. Farr & Co., 342 F.2d 383 (2d Cir. 1965); Southern Maryland Oil Co. v. Texas Co., 203 F.Supp. 449 (D.Md.1962); Fidelity & Casualty Co. of New York v. Jones Construction Co., 200 F.Supp. 264 (E.D.Ark.1961), aff'd 325 F.2d 605 (2d Cir.); Globig v. Greene & Gust Co., 184 F.Supp. 530 (E.D.Wis.1960); Vaughn v. Terminal Transport Co., Inc., 162 F.Supp. 647 (E.D.Tenn.1957); Chicago, Rock Island & Pacific Ry. Co. v. United States, 220 F.2d 939 (7th Cir. 1955); Adam v. Vacquier, 48 F.Supp. 275 (W.D.Pa.1942); Rizzo v. Steiner, 36 Misc.2d 701, 233 N.Y.S.2d 647 (1962).

These cases are inapposite. A careful reading of them reveals that each deals with indemnity or contribution or both among joint tort-feasors. In Alabama, one of several joint tort-feasors cannot enforce contribution from the others. Gobble v. Bradford, 226 Ala. 517, 147 So. 619 (1933). Some of those jurisdictions follow a different rule as to contribution. In any event, the instant case involves the rights of Home in subrogation, not in indemnity and contribution.

It should be mentioned that in one of the cases cited, Fidelity & Casualty Co. of New York v. Jones Construction Co., supra, an action for indemnity and contribution by a subrogee of a joint tort-feasor was involved. But, the court in that case dealt only with the statute of limitations as limiting the rights of a third-party plaintiff joint tort-feasor. The court appears to have assumed that the right of a subrogee to bring a cause of action is...