Butler v. Michigan Mutual Insurance

402 So. 2d 949, 1981 Ala. LEXIS 3697
CourtSupreme Court of Alabama
DecidedAugust 21, 1981
DocketNo. 79-713
StatusPublished
Cited by4 cases

This text of 402 So. 2d 949 (Butler v. Michigan Mutual Insurance) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Butler v. Michigan Mutual Insurance, 402 So. 2d 949, 1981 Ala. LEXIS 3697 (Ala. 1981).

Opinion

TORBERT, Chief Justice.

The plaintiff, Cecil Butler, seeks to apply the proceeds of an insurance policy issued by Michigan Mutual Insurance Company, the defendant-garnishee, to a judgment obtained in a previous action against Walker County Mobile Homes, Johnny Wallace, and John Wallace, the other named defendants. The judgment sued upon was one for defamation. The plaintiff was employed by Walker County Mobile Homes d/b/a Wallace Mobile Homes (Walker County), a corporation co-owned by John Wallace and his son, Johnny Wallace, as manager of its mobile home lot in Muscle Shoals, Alabama. Butler held the manager’s position until June 20, 1977, when his employment by Walker County was terminated. Following his dismissal, Butler claimed that certain defamatory statements concerning him were made by the Wallaces and Walker County. Butler filed suit for these alleged statements on August 2, 1977, and on Sep[951]*951tember 24, 1979, a judgment was entered against John Wallace, Johnny Wallace, and Walker County Mobile Homes in the amount of $200,000.

On December 12, 1979, Butler filed suit against Michigan Mutual Insurance Company, the insurer of the defendants in the previous action, on the aforementioned judgment, pursuant to Code 1975, § 27-23-2. Michigan Mutual filed for summary judgment based upon certain provisions and exclusions contained in the policy in effect between it and Walker County and the Wallaces. The pertinent provisions of the policy provide:

1. COVERAGE P — PERSONAL INJURY LIABILITY
The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury (herein called “personal injury”) sustained by any person or organization and arising out of one or more of the following offenses committed in the conduct of the named insured’s business:
Group B — The publication or utterance of a libel or slander or of other defamatory or disparaging material, or a publication or utterance in violation of an individual’s right of privacy; except publications or utterances in the course of or related to advertising, broadcasting or telecasting activities conducted by or on behalf of the named insured;
EXCLUSIONS
This insurance does not apply:
(c) To personal injury sustained by any person as a result of an offense directly or indirectly related to the employment of such person by the named insured. [Emphasis added.]

Subsequently, Butler filed affidavits in opposition to Michigan Mutual’s motion. On May 28, 1980, however, the trial judge granted the motion for summary judgment. Butler appeals from the granting of that motion.

A party moving for summary judgment has the burden of clearly showing that under no discernible set of circumstances could the other party recover and that there is an absence of a genuine issue as to any material fact. Amason v. First State Bank of Lineville, 369 So.2d 547 (Ala.1979); Ragland v. Alabama Power Company, 366 So.2d 1097 (Ala.1978); Ancora Corp. v. Miller Oil Purchasing Co., 361 So.2d 1008 (Ala.1978); Loveless v. Graddick, 295 Ala. 142, 325 So .2d 137 (1975); Fleming v. Alabama Farm Bureau Mutual Casualty Insurance Co., 293 Ala. 719, 310 So.2d 200 (1975). The moving party must be entitled to the summary judgment as a matter of law. Papastefan v. B & L Construction Co., 356 So.2d 158 (Ala.1978); Studdard v. South Central Bell Telephone Co., 356 So.2d 139 (Ala.1978); Birmingham Television Corp. v. Water Works, 292 Ala. 147, 290 So.2d 636 (1974). Furthermore, all reasonable inferences from the facts are to be viewed most favorably to the non-movant. Campbell v. Alabama Power Co., 378 So.2d 718 (Ala.1979); Papastefan v. B & L Construction Co., 356 So.2d 158 (Ala.1978); Loveless v. Graddick, 295 Ala. 142, 325 So.2d 137 (1975).

Rule 56(e), Alabama Rules of Civil Procedure, however, provides that once a motion for summary judgment has been made and supported as required by the rule, the motion is to be granted unless the adverse party makes an evidentiary or factual showing in opposition to show that there is a genuine issue of fact for trial. Campbell v. Alabama Power Co., 378 So.2d 718 (Ala.1979); Gulf American Fire & Casualty Co. v. Azar, 364 So.2d 332 (Ala.Civ.App.), cert. denied, 364 So.2d 335 (Ala.1978). Michigan Mutual carried its burden by introducing sworn testimony taken in the previous action, proceedings of record in the court file from the previous action, and a certified copy of the insurance policy in question.1 [952]*952We hold that these records clearly establish that any defamatory statements made were directly or indirectly related to Butler’s employment with Walker County, and thus were within the exclusionary provisions of the insurance policy.

The exclusionary clause in the insured’s policy is, without doubt, a valid exercise of Michigan Mutual’s rights. The law is clear that insurance companies, in the absence of statutory provisions to the contrary, have the right to limit their liability and write their policies with narrow coverage. Aetna Insurance Co. v. Pete Wilson Roofing & Heating Co., 289 Ala. 719, 272 So.2d 232 (1973); Mooradian v. Canal Insurance Co., 272 Ala. 373, 130 So.2d 915 (1961); Life & Casualty Ins. Co. v. Whitehurst, 226 Ala. 687, 148 So. 164 (1933). These insurance contracts must be enforced as written and courts cannot defeat express provisions in a policy by judicial interpretation. Aetna Insurance Co. v. Pete Wilson Roofing & Heating Co., 289 Ala. 719, 272 So.2d 232 (1973); Calvert Fire Insurance Co. v. Green, 278 Ala. 673, 180 So.2d 269 (1965); General Motors Acceptance Corp. v. Kendrick, 274 Ala. 566, 150 So.2d 185 (1962). Thus, the burden was shifted, upon submission of testimony and records by Michigan Mutual, to Butler, to present at least a scintilla of evidence to the contrary, that tends to raise significant issues of material fact.

Butler contends that the affidavits presented by him did indeed raise factual issues. We hold, however, that as a matter of law, these affidavits are insufficient to prevent a summary judgment from issuing. The affidavits presented by Butler were his own and that of Toni Malone. Butler’s affidavit shows no facts or circumstances regarding the defamatory statements allegedly made about him.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Montz v. Mead & Charles, Inc.
557 So. 2d 1 (Supreme Court of Alabama, 1987)
Gardner v. Pepper Tree Apartments
413 So. 2d 1077 (Supreme Court of Alabama, 1982)
Missildine v. Avondale Mills, Inc.
415 So. 2d 1040 (Supreme Court of Alabama, 1981)
Butler v. Michigan Mut. Ins. Co.
402 So. 2d 949 (Supreme Court of Alabama, 1981)

Cite This Page — Counsel Stack

Bluebook (online)
402 So. 2d 949, 1981 Ala. LEXIS 3697, Counsel Stack Legal Research, https://law.counselstack.com/opinion/butler-v-michigan-mutual-insurance-ala-1981.