South Carolina Ins. Co. v. Bishop
| Decision Date | 22 December 1995 |
| Docket Number | 2940581. |
| Citation | 683 So.2d 985 |
| Parties | SOUTH CAROLINA INSURANCE COMPANY v. Glenda Kay BISHOP and Yvonne South. |
| Court | Alabama Court of Civil Appeals |
J. Michael Tanner and Michelle A. Meurer of Ashe, Tanner, Moore & Wright, P.C., Tuscumbia, for Appellant.
C. Harry Green of Green, Wood & Howell, Hamilton, and Jerry Guyton of Fite, Davis, Atkinson, Guyton & Bentley, Hamilton, for Appellees.
Glenda Kay Bishop and Yvonne South sued South Carolina Insurance Company (hereinafter "the insurer"), seeking a declaratory judgment to determine whether the insurer is obligated to defend and indemnify Ms. South in a personal injury action brought by Ms. Bishop. Following an ore tenus proceeding, the trial court declared that the insurer is obligated to defend and indemnify South in the personal injury action; the insurer appeals. This case was transferred to this court by the Supreme Court, pursuant to § 12-2-7(6), Ala.Code 1975.
The ore tenus rule applies to a review of this declaratory judgment, and under that rule a presumption of correctness accompanies the judgment because it was based on an oral presentation of disputed testimony. State Highway Department v. Spectacor Management Group, 636 So.2d 478 (Ala.Civ. App.1994). "On appeal, the trial court's judgment will not be disturbed unless it is shown to be plainly and palpably wrong, considering all of the evidence and all inferences that can logically be drawn from the evidence." Id., at 480.
In June 1990, Sherry Rasberry d/b/a The Rasberry Patch entered into an agreement with Yvonne South d/b/a The Carousel to lease a portion of the business premises owned by South. The lease agreement read in part:
After signing the lease, Rasberry began operating her business at the premises, where South's business was also located. The names of both businesses were printed on the same sign outside the building. South and Rasberry shared the same check-out counter and cash register, which they purchased together, and they intermingled their merchandise. Each purchase was credited to one business or the other by entering a code into the cash register. They answered the telephone by using the names of both businesses, and they advertised together. South and Rasberry would frequently alternate off days, and on one's off days the other would operate both businesses.
The lease was prepared by South's daughter, Jan Youngblood, who handles South's business arrangements and the "day-to-day" operations of The Carousel. Youngblood testified that she and Rasberry agreed that in exchange for South's providing all utilities, except for the telephone, the cost of which would be shared between them, Rasberry was to provide the insurance. Youngblood stated that Rasberry had said that she already had insurance and that she would contact her insurance agent and have it transferred to the new place of business.
Rasberry testified that she understood the agreement to be that she was providing insurance only for her business and that she, therefore, never requested that South be insured under her policy. Bobby Taylor, Rasberry's insurance agent, testified that Rasberry contacted him regarding the insurance policy in place, but that she did not request an additional named insured, only an address change.
The record reveals that on several occasions Taylor came into the place of business to discuss insurance with Rasberry and that at some point before the policy was renewed in March 1991 a representative of the insurer went to the business to complete a safety report. The renewed policy was to be effective until March 1992; the injury that is the basis of the pending underlying action occurred in February 1992.
Bishop and South alleged in their complaint for declaratory relief: that "Bishop suffered an injury on said premises and claims a defect in the premises as the proximate cause of her injury"; that "as a part of the rental agreement between ... South and ... Rasberry, ... Rasberry was to provide liability insurance for ... South"; and that "Rasberry, pursuant to the lease...
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Ex parte South Carolina Ins. Co.
...The trial judge held that coverage existed under the policy, and the Court of Civil Appeals affirmed. South Carolina Ins. Co. v. Bishop, 683 So.2d 985 (Ala.Civ.App.1995). We reverse and The facts that led to this present declaratory action are as follows: On February 1, 1992, Glenda Bishop ......
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