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Lund v. Owens

Alabama Court of Civil Appeals

December 19, 2014

Stephen M. Lund and Michael White
v.
William M. Owens d/b/a Tom Jones Insurance Agency

Appeal from Lauderdale Circuit Court. (CV-11-0275).

APPEAL DISMISSED.

For Appellants: Charlie A. Bottoms, Jr., Florence.

For Appellee: Bradley J. Smith, Clark, Hair & Smith, PC, Birmingham.

Thompson, P.J., and Pittman, and Moore, JJ., concur. Thomas, J. concurs in the result, without writing.

OPINION

Page 692

DONALDSON, Judge.

Stephen M. Lund and Michael White appeal from a summary judgment entered by the Lauderdale Circuit Court (" the trial court" ) in favor of William M. Owens d/b/a Tom Jones Insurance Agency (" Owens" ). The judgment disposed of White's claims " in their entirety" on the basis that he is not a real party in interest, entered a summary judgment on the fraudulent-misrepresentation and fraudulent-suppression claims asserted by Lund and White, but did not dispose of all the claims asserted against all the parties in the case. The trial court certified the summary judgment as final pursuant to Rule 54(b), Ala. R. Civ. P. Because the claims disposed of in the judgment, and, thus, at issue in this appeal have essential issues in common with the claims still pending in the trial court, we dismiss the appeal as having been taken from a nonfinal judgment.

Facts and Procedural History

Because this appeal arises from a summary judgment in favor of Owens, the following summary of the facts is recited " in the light most favorable to the nonmovant[s,]" Lund and White. Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038 (Ala. 2004).

Lund is the owner of a building in Florence (" the building" ). Lund purchased the building for the purpose of permitting White to operate an antiques and consignment shop in the building. At the time Lund purchased the building, the roof of the building leaked. Lund and White received proposals to install a new roof, including a proposal from Michael Powell. Lund decided to hire Powell to install a new roof on the building. Although the document purportedly signifying the agreement between Lund and Powell was dated June 1, 2011, Lund claimed that his obligation to Powell was conditioned upon Powell's providing proof that he had insurance coverage for the work to be performed. Powell told White and Lund to contact Owens for confirmation of Powell's insurance coverage. White claimed that on or about July 1, 2011, he had a telephone conversation with Angie Kennemur, an employee of Owens. In that conversation, Kennemur purportedly responded to questions asked by White about Powell's insurance coverage. Kennemur subsequently sent White a certificate of liability insurance dated July 11, 2011. The certificate indicated that Powell had general-commercial-liability insurance, subject to exclusions and conditions contained in the insurance policy.

Powell began work on the roof on or about July 8, 2011. Once installed, the new roof had leaks that purportedly caused damage to the roof and to the interior of the building, as well as to property located within the building. Powell never filed a claim with any insurance company seeking coverage. White filed a claim with the insurance company that provided coverage for Powell's insurance policy (" the insurer" ). The insurer denied coverage on several grounds, including that Powell's policy covered only work on residential roofs and did not cover work on commercial buildings and that it did not cover defective workmanship or roofing work requiring the application of heat by, for example, using hot tar or torches (the type of roof allegedly installed by Powell).

On December 29, 2011, Lund and White filed a complaint in the trial court, asserting claims against, and seeking damages from Powell, the manufacturer of the roofing product installed by Powell (" the manufacturer" ), and Owens. Lund and White alleged claims of negligence and breach of contract against Powell. Against the manufacturer, they asserted claims of a breach ...


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