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02/24/95 JOYCE MILLER v. DOBBS MOBILE BAY

February 24, 1995

JOYCE MILLER, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF MEARL M. MILLER, DECEASED; AND PAULA GOSS, INDIVIDUALLY
v.
DOBBS MOBILE BAY, INC., ET AL.



Appeal from Mobile Circuit Court. (CV-92-1638). Ferrill D. McRae, TRIAL JUDGE.

Rehearing Denied May 12, 1995.

Ingram, Shores, Kennedy, and Butts, JJ., concur. Almon, J., concurs in the result. Maddox, J., concurs in part and Dissents in part.

The opinion of the court was delivered by: Ingram

INGRAM, JUSTICE.

This case arises out of a refusal to pay benefits under a credit life insurance policy. Specifically, after Mearl Miller's death, Ford Life Insurance Company ("Ford Life") denied payment on his credit life policy because it contended that a health certificate executed by Mr. Miller was false and that he had been in bad health when he purchased the insurance. After Ford Life refused to pay any benefits under the policy, Joyce Miller, as administratrix of the estate of Mearl Miller, *fn1 and Paula Goss, individually, sued Ford Life and Dobbs Mobile Bay, Inc., d/b/a Treadwell Ford, an automobile dealership ("Treadwell"). The trial court entered summary judgments in favor of Ford Life and Treadwell, and Miller and Goss appealed.

On a motion for summary judgment, the burden is initially on the movant to make a prima facie showing that there is no genuine issue of material fact (i.e., that there is no dispute as to any material fact), and that he is entitled to a judgment as a matter of law. Rule 56, Ala.R.Civ.P.; McClendon v. Mountain Top Flea Market, Inc., 601 So. 2d 957 (Ala. 1992); Elgin v. Alfa Corp., 598 So. 2d 807 (Ala. 1992). "The burden does not shift to the opposing party to establish a genuine issue of material fact until the moving party has made a prima facie showing that there is no such issue of material fact." McClendon, at 958; Elgin, at 810-11.

Rule 56 must be read in conjunction with the "substantial evidence rule," § 12-21-12, Ala. Code 1975, for actions filed after June 11, 1987. See Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala. 1989). In order to defeat a defendant's properly supported motion for summary judgment, the plaintiff must present substantial evidence, i.e., "evidence of such weight and quality that fair-minded persons in the exercise 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). This Court reviews the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So. 2d 359 (Ala. 1993). Viewed that way, the evidence before the court on the summary judgment motion suggested the following facts.

On February 28, 1989, Mr. Miller purchased a 1985 Ford LTD Crown Victoria automobile from Treadwell. His daughter, Paula Goss, and Paula's husband accompanied him to the Treadwell dealership and were present during all conversations concerning the negotiations and financing of the car. On all documents executed in connection with the sale of the car, Mr. Miller identified himself as the sole purchaser of the automobile.

During the negotiations concerning the sale of the car, a Treadwell salesman asked Mr. Miller whether he wanted to purchase credit life insurance coverage. Mr. Miller replied that he did not want the coverage and he informed the salesman that he was sick. Mr. Miller was then sent to the Treadwell office to complete the necessary paperwork on the purchase of the car. While in the office, Mr. Miller talked with another Treadwell employee, who represented Ford Life; that employee asked him again about the credit life insurance coverage. Mr. Miller, noting that the form stated that the coverage was optional, answered that he did not want the coverage, and told that employee that he was sick. At that time, the Treadwell employee/Ford Life representative stated that if Mr. Miller did not buy the credit life coverage, he could not buy the car. Mr. Miller responded by stating that he had health problems; however, the Treadwell employee/Ford Life representative indicated that Mr. Miller's health would not be a problem and that the insurance would be effective notwithstanding the state of his health. At that time, Mr. Miller signed the necessary paperwork for the credit life insurance coverage, including a health certificate stating that he was in good health. Approximately four months after purchasing the car, Mr. Miller was diagnosed with lung cancer, and he died approximately eight months later.

Central Bank of the South had financed the purchase of the car and was the primary beneficiary of Mr. Miller's credit life insurance policy. His estate was listed as the secondary beneficiary. Neither Joyce Miller (Mearl Miller's wife) nor Paula Goss was listed as a beneficiary of the policy. Upon Mr. Miller's death, Central Bank filed a claim with Ford Life under the credit life policy. Ford Life denied the claim, contending that Mr. Miller had not been in good health when he bought the policy. Central Bank then repossessed the vehicle because payments were not being made, sold it, and sued Mr. Miller's estate for the deficiency balance.

Mrs. Joyce Miller, as administratrix, and Mrs. Goss, individually, then filed this present action against Treadwell and Ford Life, alleging fraudulent representations and breach of contract. They also alleged bad-faith-refusal-to-pay on the part of Ford Life. Almost one year later, the plaintiffs attempted to amend the complaint in this present action to add numerous new claims. It also appears that, by including her name in the caption of the proposed second amendment, Joyce Miller was attempting to join, individually, as a plaintiff. This amendment was denied. The trial court entered a summary judgment in favor of each defendant, and this appeal followed.

The threshold question concerns the proper parties to this appeal. The notice of appeal names Joyce Miller, both as administratrix of her husband's estate and individually, and names Goss, individually. However, as the trial court correctly held, "neither Joyce Miller nor Paula Goss suffered any legal detriment in connection with the purchase of the vehicle or credit life insurance, as they were not co-buyers of the vehicle or of the credit life insurance." Therefore, the only plaintiff properly in this action is Mrs. Miller, who is in it properly as administratrix of the estate of her deceased husband. We now proceed to discuss the administratrix's contentions that the trial court erred in entering the summary judgments for Ford Life and Treadwell on all counts.

Fraud

(Treadwell and Ford ...


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