Pedigo v. Valley Mobile Homes, Inc.

643 P.2d 1247, 97 N.M. 795
CourtNew Mexico Court of Appeals
DecidedApril 6, 1982
Docket5327
StatusPublished
Cited by26 cases

This text of 643 P.2d 1247 (Pedigo v. Valley Mobile Homes, Inc.) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pedigo v. Valley Mobile Homes, Inc., 643 P.2d 1247, 97 N.M. 795 (N.M. Ct. App. 1982).

Opinions

OPINION

NEAL, Judge.

Plaintiffs mobile home, purchased from Valley Mobile Homes (Valley) and manufactured by Berkley Homes, Inc. (Berkley), was destroyed in a fire. It was undisputed that the fire was caused by a gap in the fireplace flue which allowed combustion gases to ignite structural material surrounding the fireplace. As a result of the fire, plaintiff sustained substantial property damage and incidental expenses including rental of alternative housing and lost wages and travel expenses incurred in looking for a new mobile home. American Modern Home Insurance Company, plaintiff Pedigo’s insurer, and co-plaintiff in this case, compensated plaintiff under the terms of Pedigo’s policy. American Modern Home purchased a new mobile home, gave plaintiff Pedigo money for personal property lost in the fire, and living expenses allowed under the policy.

The case was tried to the court. The court found for plaintiffs, awarding American Modern Home $16,724.90 and Pedigo $4,015.70. We are concerned here only with the appeal of Valley, the seller of the mobile home. Berkley, the manufacturer, has had its appeal dismissed. Valley appeals contending:

1. Summary judgment determining that Valley and Berkley were liable was improper.

2. Damages were excessive.

We affirm.

1. Summary judgment.

Plaintiffs’ theory of the case included negligence and breach of warranty of fitness. Plaintiffs moved for summary judgment against Valley and Berkley on the issue of liability; this motion was granted.

The trial court based its ruling on the affidavit and report of John Wright, an engineer who determined that the fire occurred because “[t]he first section of the flue piping was incorrectly connected to the fire box. Because of this; combustion gases were able to enter the annular space between the shield piping and ignite combustable [sic] structural material.” He stated that the fire seemed to begin at the four foot level (above the ground); this was consistent with Pedigo’s deposition in which he stated that a fireman had told him that the fire began at the four foot level. Wright, the engineer, stated in his affidavit: “[i]t was my conclusion, and is my conclusion, that the cause of the fire was because the flue piping was incorrectly connected to the fire box by the individuals who had originally installed the fireplace.” The defendant presented evidence that plaintiff Pedigo installed an eighteen inch fireplace extension. This extension was installed by removing a cap from the top of the chimney, snapping the extension into place, and replacing the cap. To counter the evidence presented by Wright, the engineer, the defendant introduced the affidavit of Richard Villard, the service manager of Valley, in which he stated that “when the fireplace extension is installed it must be done with care, or the fireplace may be damaged. The extension is merely an 18" metal extension, which is put on top of the regular vent pipe. It is possible that if this is not put on carefully, that it could crimp the flu [sic] lining and leave a gap in the firebox.” The question is whether this evidence, balanced against the evidence presented by the engineer is enough to defeat a motion for summary judgment. The trial court did not think so. We agree.

The purpose of summary judgment is to hasten 'the administration of justice and to expedite litigation by avoiding needless trials and to enable one promptly to obtain a judgment by preventing the interposition of frivolous defenses for purpose of delay. Agnew v. Libby, 53 N.M. 56, 201 P.2d 775 (1949). The movant must show there is no reasonable doubt as to a genuine issue of material fact. Goodman v. Brock, 83 N.M. 789, 498 P.2d 676 (1972). When reasonable minds would differ, summary judgment is inappropriate. Kelly v. Montoya, 81 N.M. 591, 470 P.2d 563 (Ct.App.1970).

The service manager’s affidavit is no more than self-serving speculation, and did not create a genuine issue of material fact that would defeat a motion for summary judgment. It is factually unsupported opinion testimony and the affiant had no personal knowledge as required by N.M.R.Civ.P. 56(e), N.M.S.A.1978 (Repl.Pamp.1980). See Martinez v. Metzgar, 97 N.M. 173, 637 P.2d 1228 (1981). In determining whether an affidavit is sufficient to preclude a summary judgment, certain factors must be considered. A satisfactory explanation of how the expert arrived at his opinion must be given, or the opinion is not competent evidence. An affidavit in a summary judgment must set forth facts admissible in evidence. See Smith v. Klebanoff, 84 N.M. 50, 499 P.2d 368 (Ct.App.1972). Measured by the standards set forth in Martinez and Smith, the service manager’s affidavit is not sufficient to defeat a motion for summary judgment.

Although we conclude that summary judgment was proper, we remand for a modification of the judgment. Valley was given summary judgment against plaintiff on the issue of negligence on June 7, 1979. Valley obtained summary judgment of indemnity against Berkley in the amount of any judgment entered against it on January 23,1981; Berkley was ordered to indemnify Valley, including Valley’s costs, on February 9, 1981. Insofar as the decision awards judgment “against defendants jointly and severally,” it is inconsistent with the prior orders. We remand for entry of a judgment against Valley, with indemnification by Berkley pursuant to the prior orders.

2. Excessive damages.

Defendant Valley challenges the damage award as excessive. Valley contends:

1. Regarding two Taos to Roswell trips, the trial court erred in awarding travel mileage damages based on a round trip figure of 1000 miles when the actual figure is 524 miles.

2. The trial court erred when it allowed personal property damages in excess of depreciated value.

3. The trial court erred when it allowed plaintiff American Modern Home Insurance damages for the costs incurred in hiring an independent adjuster ($500.00) and the engineer who investigated the cause of the fire ($442.56).

We find no merit in these contentions.

Plaintiff Pedigo testified that he made two round trips, Taos to Roswell, looking for a new mobile home, and that the round trip mileage was 1000 miles. Based on this, the court awarded him $0.15 per mile for 2000 miles. In fact, the round trip mileage was 524 miles. The damages, based on the correct mileage, are excessive by $142.80. Valley, however, did not contradict the incorrect mileage, nor did they ask the court to take judicial notice of the correct mileage. Valley did not request specific findings concerning this. Incidental to this is Valley’s claim that plaintiff Pedigo should not have been awarded $60.00 per day for five days wages lost in looking for a new mobile home. Valley did not present evidence that he was paid for those days, nor did they request specific findings.

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Bluebook (online)
643 P.2d 1247, 97 N.M. 795, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pedigo-v-valley-mobile-homes-inc-nmctapp-1982.