McCullar v. Universal Underwriters Life Ins. Co.
| Decision Date | 22 November 1996 |
| Citation | 687 So.2d 156 |
| Parties | Cindy McCULLAR v. UNIVERSAL UNDERWRITERS LIFE INSURANCE COMPANY, et al. 1930246. |
| Court | Alabama Supreme Court |
J. Michael Tanner and Benjamin H. Albritton of Almon, McAlister, Ashe, Baccus & Tanner, Tuscumbia; and J. O. Isom, Hamilton, for Appellant.
Danny D. Henderson and Clint W. Butler of Spurrier, Rice & Henderson, Huntsville, for Regency Chevrolet-Olds, Inc., E.B. Pinkerton and Roger Guin.
S. Dagnal Rowe and Alan P. Judge of Burr & Forman, Huntsville, for Universal Underwriters Life Ins. Company.
Garve Ivey of Wilson & King, Jasper, for amicus curiae Alabama Trial Lawyers Association.
M. Roland Nachman of Balch & Bingham, Montgomery, for amicus curiae Consumer Credit Insurance Association.
Sabrina Andry Simon of Lightfoot, Franklin, White & Lucas, Birmingham; and Richard E. Barnsback and Phillip E. Stano, American Council of Life Insurance, Washington, DC, for amicus curiae American Council of Life Insurance.
Counsel on application for rehearing:
J. O. Isom, Hamilton; J. Michael Tanner of Almon, McAlister, Ashe, Baccus & Tanner, Tuscumbia; Garve Ivey, Jr. of King & Ivey, Jasper; and Barry A. Ragsdale of King & Ivey, Birmingham, for appellant.
Danny D. Henderson of Henderson & Butler, Huntsville, for Regency Chevrolet-Olds, Inc., E.B. Pinkerton and Roger Guin.
S. Dagnal Rowe, Alan P. Judge, William F. Murray, Jr., F. A. Flowers III, and Robert H. Rutherford of Burr & Forman, Birmingham and Huntsville, for Universal Underwriters Life Ins. Company.
Lanny S. Vines and Michael L. Allsup of Emond & Vines, Birmingham; for amicus curiae Alabama Trial Lawyers Association.
Cathy S. Wright of Maynard, Cooper & Gale, P.C., Birmingham, and Phillip E. Stano, American Council of Life Insurance, Washington, DC, for amicus curiae American Council of Life Insurance.
Robert A. Huffaker of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for amicus curiae Automobile Dealers Ass'n of Alabama, Inc.
Matthew C. McDonald of Miller, Hamilton, Snider & Odom, L.L.C., Mobile, for amicus curiae Alabama Retailers Ass'n.
John R. Chiles and Richard H. Sforzini, Jr. of Sirote & Permutt, P.C., Birmingham, for amicus curiae Alabama Financial Services Ass'n.
John M. Galese, Birmingham, for amicus curiae Independent Automobile Dealers Ass'n.
Dennis Pantazis of Gordon, Silberman, Wiggins & Childs, Birmingham, for amicus curiae American Automobile Manufacturers Ass'n.
John R. Chiles of Sirote & Permutt, P.C., Birmingham, for amicus curiae Alabama Lenders Ass'n.
H. Hampton Boles and Teresa G. Minor of Balch & Bingham, Birmingham, for amicus curiae Alabama Bankers Ass'n Michael A. Bownes, General Counsel, for amicus curiae Alabama Department of Insurance.
Scott Corscadden, General Counsel, Alabama State Banking Department, for amici curiae Alabama State Banking Department and Superintendent of Banks Kenneth R. McCartha.
On Application for Rehearing
The opinion of September 29, 1995, is withdrawn and the following opinion is substituted therefor.
The plaintiff, Cindy McCullar, appeals from a summary judgment for the defendants in her fraud action. McCullar alleged that when she bought an automobile Universal Underwriters Life Insurance Company and the dealership, Regency Chevrolet-Olds, Inc., acting through the dealership's employees, fraudulently sold her more credit life and disability insurance than she needed. She sued the Regency dealership and two of its employees, seeking damages for the alleged fraud; she also sued Universal Underwriters Life Insurance Company, which issued the credit life and disability policies, seeking to impose liability against that defendant on an agency theory.
McCullar alleged in her complaint:
Alan McCullar and his wife Cindy McCullar purchased a new Oldsmobile Cutlass Ciera automobile from Regency in May 1990. The purchase price was $14,248.19. The McCullars paid $1,500 down, leaving an unpaid balance of $12,748.19, which the couple intended to finance. During the transaction, Regency employees E.B. Pinkerton and Roger Guin, acting as agents for Universal, sold the McCullars credit life and credit disability insurance on Alan McCullar. The total cost of the insurance--$1,037.10 for the credit life insurance and $1,306.75 for the credit disability insurance--increased the balance to $15,108.54. The McCullars signed a contract to pay that amount, plus precomputed interest, totaling altogether $20,742.00, over 60 months at payments of $345.70 per month.
The McCullars divorced in 1990. Cindy McCullar received title to the car as part of the divorce settlement, and she made the monthly payments until she defaulted on the loan.
On May 7, 1993, McCullar sued Universal, Regency, and Regency employees Pinkerton On August 17, 1993, Regency requested that the court set a hearing date on the summary judgment motion. The court set a September 21, 1993, hearing date, over McCullar's objection. She asked the court to delay the hearing, saying she had not completed discovery. The court entered a summary judgment for Universal and Regency on October 19, 1993. McCullar appeals.
and Guin (Regency, Pinkerton, and Guin will be referred to together as "Regency") in the Marion County Circuit Court, alleging fraud. McCullar charged that Regency sold the credit life insurance with a premium based on $20,742.00, the total amount of the contract, instead of a premium based on $15,108.54, the amount financed under the contract. She alleged that doing this allowed Regency and Universal to charge a higher premium for credit life insurance, $1,037.10 rather than $755.45, and, similarly, allowed them to charge a higher-than-necessary premium for disability coverage. Further, McCullar asserts that Regency did not tell her that the amount of insurance the McCullars were purchasing was more than would be needed to pay off the debt in the event of Alan McCullar's death. With her complaint, McCullar simultaneously filed a request for production of documents, seeking discovery of information relating to Universal policies sold by Regency. Universal and Regency timely answered, denying the charges, and, on August 16, 1993, they moved for a summary judgment.
McCullar raises two issues on appeal. First, she argues that the court should not have entered the summary judgment without giving her an opportunity to conduct what she considered crucial discovery. Second, she argues that she had shown a genuine issue of material fact that made a summary judgment improper.
McCullar first argues that the trial court should have delayed the summary judgment hearing because she had discovery pending. We first acknowledge that a trial judge has broad discretion to grant or to deny a motion for a continuance. Wood v. Benedictine Society of Alabama, Inc., 530 So.2d 801, 805 (Ala.1988). Continuances are not favored; therefore, the trial court's denial of a continuance will not be reversed except for an abuse of discretion. Selby v. Money, 403 So.2d 218, 220 (Ala.1981).
It is established that the mere pendency of discovery does not bar the entry of a summary judgment. Reeves v. Porter, 521 So.2d 963 (Ala.1988). If the trial court, from the evidence before it, or the appellate court, from the record, can ascertain that the matter subject to production, or the answers to pending interrogatories, are crucial to the nonmoving party's case, then it is error for the trial court to enter a summary judgment before the items have been produced or the answers given. Reeves, 521 So.2d at 965. The burden of showing that these items are crucial is upon the nonmoving party, who can carry that burden by complying with Ala.R.Civ.P. 56(f), which reads:
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