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PITTS v. BOODY12/6/1996
On September 23, 1994, Lisa M. Pitts filed a complaint in the Montgomery County Circuit Court against Robert H. Boody, an uninsured motorist; Illinois National Insurance Company, Pitts's automobile insurance carrier; and the Elmer Tallant Agency, the agent that had sold Pitts the automobile insurance policy. Pitts asserted claims of negligence against Boody; bad faith refusal to pay against the Elmer Tallant Agency and Illinois National; and fraudulent misrepresentation, intentional misrepresentation, and fraudulent suppression against Illinois National. Pitts's claims arose out of a September 26, 1992, automobile accident in which Boody's automobile collided with Pitts's automobile. Pitts alleged that she had suffered physical injury and had incurred medical expenses, damage to her automobile, and lost wages. Pitts also alleged that she had made a claim under her automobile insurance policy on September 29, 1992, and that Illinois National and the Elmer Tallant Agency had intentionally refused to pay her claim. On October 20, 1994, Illinois National answered, asserting the affirmative defenses of accord and satisfaction, contributory negligence, and the statute of limitations. On October 25, 1994, Illinois National amended its answer to also assert the affirmative defense of payment.
On September 5, 1995, the Elmer Tallant Agency filed a motion for a summary judgment, along with a statement of the undisputed facts and supporting documents. On October 31, 1995, the trial court entered a summary judgment for the Elmer Tallant Agency. On February 12, 1996, Illinois National
filed a motion for a summary judgment on the ground of accord and satisfaction, along with a statement of the undisputed facts and supporting documents; Illinois National filed a memorandum brief on February 20, 1996. Pitts filed a response in opposition to Illinois National's motion, filing supporting affidavits and documents with the response. On March 6, 1996, the trial court entered a summary judgment for Illinois National. Thereafter, the summary judgment entered in Illinois National's favor was made a final judgment, pursuant to Rule 54(b), Ala.R.Civ.P.
Pitts appealed to the Alabama Supreme Court. That court, pursuant to ยง 12-2-7, Ala. Code 1975, transferred the appeal to this court. Pitts raises one issue: whether the trial court erred in entering the summary judgment on her fraudulent misrepresentation and fraudulent suppression claims against Illinois National. The record on appeal contains only the basic pleadings, the summary judgment filings, and portions of Pitts's deposition testimony and the exhibits attached thereto. A summary judgment is proper when "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), Ala.R.Civ.P. The burden is on the movant to show that there exists no genuine issue of material fact; however, once a party moving for a summary judgment makes a prima facie showing that no genuine issue of material fact exists, then the burden shifts to the nonmovant to rebut the prima facie showing. McClendon v. Mountain Top Indoor Flea Market Inc., 601 So.2d 957 (Ala. 1992).
Facts
Pitts alleged that she had suffered neck and back injuries on September 26, 1992, when her automobile was struck by Boody's automobile. Pitts made a claim under the automobile insurance policy issued to her by Illinois National. Illinois National issued Pitts a check on October 7, 1992, for the damage to her automobile.
Between March 29, 1993, and June 7, 1993, an Illinoi
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