U.S. Fidelity & Guaranty Co. v. Escambia Elec. and Appliance Co.
| Decision Date | 20 June 1980 |
| Citation | 384 So.2d 1073 |
| Court | Alabama Supreme Court |
| Parties | UNITED STATES FIDELITY & GUARANTY COMPANY, a corporation, as Subrogee of Southern General Contractors v. ESCAMBIA ELECTRIC AND APPLIANCE COMPANY et al. 78-865. |
Philip H., Partridge of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, for appellant.
Johnnie B. Byrd, Jr. of Caffey & Byrd, Brewton, for appellees.
This is an appeal by the plaintiff, United States Fidelity & Guaranty Company (USF & G), as subrogee of Southern General Contractors, from a summary judgment in favor of defendant, Escambia Electric and Appliance Company. We reverse.
The Escambia County Board of Education employed an architectural firm to design, plan and supervise the construction of an athletic building for W. S. Neal High School. Southern General Contractors was awarded the contract which called for the project to be completed according to plans prepared by the architectural firm. It also included the following provision concerning "extra work" ordered by the School Board:
Without invalidating the contract, the owner may order extra work or make changes by altering, adding to, or deducting from the work; the contract sum being adjusted where necessary or desirable. All work of the kind bid upon shall be paid for at the price stipulated in the proposal, and no claims for any extra work or materials shall be allowed unless the work is ordered in writing by the Architect, acting officially for the owner, and the price is stated in such order.
A builder's risk insurance policy including fire coverage was obtained by Southern General from United States Fidelity.
Southern General subcontracted with Escambia for the installation of a heating and air conditioning system as provided in the plans and specifications prepared by the architects. The following article appeared in the subcontract:
Prior to starting work, the Subcontractor shall obtain the required insurance from a responsible insurer, and shall furnish satisfactory evidence to the Contractor that the Subcontractor has complied with the requirements of this Article 9. Similarly, the Contractor shall furnish to the Subcontractor satisfactory evidence of insurance required by the Contract Documents.
The Contractor and Subcontractor waive all rights against each other and against the Owner and all other Subcontractors for damages caused by fire or other perils to the extent covered by property insurance provided under the General Conditions, except such rights as they may have to the proceeds of such insurance.
Escambia deviated from the architectural plans when it installed, with the School Board's consent and architect's oral approval, a used central heating and cooling unit which was donated to the school by Escambia. Southern General's President, W. A. Wiggins, advised the School Board that his Company would not be responsible for this deviation from the original plans.
On November 6, 1977, a fire occurred, severely damaging the athletic building. USF & G paid to its insured, Southern General, an amount necessary to repair the structure.
USF & G then brought suit, as subrogee of Southern General, against Escambia. Its complaint alleged negligent installation of the heating and cooling system by Escambia and breach of contract, by improperly installing the system which allegedly caused the fire.
On April 11, 1979, Escambia filed a third-party complaint against its insurer, Home Indemnity Company, requesting Home Indemnity to provide Escambia with a defense to the action and to pay any amounts which United States Fidelity might be awarded.
Escambia filed a motion for summary judgment with supporting exhibits. USF & G filed a response, supported by affidavits. Escambia's motion was granted and USF & G appeals.
In support of the trial court's decision granting summary judgment in its favor, Escambia contends that the School Board is the "owner" under § 11 of its contract with Southern General, and therefore had the right to unilaterally modify the contract. Such a modification occurred when it accepted the used heating and cooling system. Escambia also contends that Article 9 of...
To continue reading
Request your trial
-
Industrial Risk Insurers v. Garlock Equipment Co.
...Conditions" and that a material issue of fact is thus presented. IRI relies on the case of United States Fidelity & Guaranty Co. v. Escambia Electric & Appliance Co., 384 So.2d 1073 (Ala.1980), in which this Court reversed a summary judgment entered in favor of a subcontractor that allegedl......