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February 10, 1995


10 Truck Center, Inc., Appeal from Mobile Circuit Court. (CV-91-1700). Robert L. Byrd, Trial Judge.

Released for Publication May 27, 1995. As Corrected.

Kennedy, Almon, Houston, Ingram, and Cook, JJ., concur. Maddox, J., concurs specially.

The opinion of the court was delivered by: Kennedy


J. Ed Adams, d/b/a I-10 Truck Center, Inc., and his wife Shirley Adams appeal from a partial summary judgment entered in favor of Auto-Owners Insurance Company.

A summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c)(3), A.R.Civ.P.

To overcome a properly supported motion for summary judgment, the nonmoving party must present substantial evidence supporting its claims and creating a genuine issue of material fact. § 12-21-12, Ala. Code 1975. To satisfy the "substantial evidence test," the nonmoving party is required to present "evidence of such weight and quality that fair-minded persons in the exercise 3 of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance, Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989).

The evidence, viewed in a light most favorable to the nonmoving party, as we are required to view it, suggests the following: J. Ed Adams, Jr., owns and does business through, a corporation known as I-10 Truck Center, Inc. Through that corporation, he operates a truck center in Mobile. Adams purchased a commercial property insurance policy from Auto-Owners Insurance Company, to provide coverage for property damage sustained to the truck center building. Adams purchased the policy through an independent insurance agent, Robert Schneider.

On June 9, 1989, Adams contacted Schneider, claiming that the truck center building had suffered damage from a storm that had occurred the previous day. There is no dispute that a thunderstorm did occur on that day. Schneider viewed the building and notified Auto-Owners that Adams was making a claim based on damage to the roof of the building. Auto-Owners contacted Olander Construction Company for an estimate on the cost of repairing the roof. Howell Kent McAnnally, an employee of Olander, completed a report, estimating that the damage to the roof was "$46,389.88 due to wind damage." However in his deposition, McAnnally stated that he thought the roof was "worn out" and had not suffered wind damage.

Adams began having increasing problems with rainwater leaking into the building. Schneider told Adams that, according to his contract, he had to make emergency repairs in order to prevent further damage while the claim was being processed.

Auto-Owners hired an independent adjusting service, GAB, to investigate and to examine the building. Wade Reeves, an adjuster for GAB, conducted an on-site inspection of the building and its roof. Reeves determined that the roof had not been significantly damaged by wind, but instead had deteriorated with age.

Auto-Owners then instructed GAB to hire an independent engineer to inspect the roof. GAB hired Owen Posey, and he conducted an on-site examination of the building. He determined that the building had suffered $2,509.92 in damage due to the storm, but that the remainder of the problem with the roof was due to age. Posey stated in his report that there were several patches on the roof and that those patches indicated the general condition of the roof. Also, Posey stated that a crack in the ceiling nearly 25 feet long was much more than a few months old and that that crack had contributed to the leaking. Auto-Owners agreed to pay for the $2,509.92 in damage Posey said had been caused by the wind.

Subsequently, Adams hired a certified roof consultant, William Kivette, who said he found that the problem with the roof had been caused by wind and not by age. Kivette stated that the 25-foot crack in the ceiling was exactly the type of damage that is caused by wind.

Because of severe leakage in the roof, Adams has suffered a loss in his business. Adams says that he is financially unable to repair the roof and that because of the lack of ...

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