Economy Fire & Cas. Co. v. GoarEconomy Fire & Cas. Co. v. Goar
On July 9, 1985, Rosella Pugh, a pedestrian, was injured when a cattle trailer dislodged from a vehicle operated by Leroy Craft, an uninsured motorist, and struck her while she was in her front yard. The cattle trailer was owned by Charles Goаr and was on loan to Craft at the time of the accident. Pugh was insured by Economy, including uninsured motorist coverage of $40,000.1
On May 11, 1987, Pugh sued Economy and Craft. On June 18, 1987, Economy filed a motion to add Goar as a third-party defendant. This motion was granted on June 19, 1987. On September 4, 1987, Goar filed a motion to dismiss, alleging that the
After remand, Goar filed a motion for summary judgment on September 6, 1989, wherein he asserted three grounds: 1) statute of limitations; 2) imрermissible contribution among joint tortfeasors; and 3) Economy‘s lack of standing to file the third-party complaint. Economy, on September 28, 1989, filed a motion and a brief in opposition to Goar‘s motion for summary judgment. On October 16, 1989, the trial court entered the following ordеr:
“Third-party Defendant having filed a Motion for Summary Judgment requesting the dismissal of the third-party complaint herein and the Court having heard arguments by аll parties concerned together with briefs filed by the respective parties and after consideration of same, it is, therefore,
“ORDERED BY THE COURT that the Motion of third-party Defendant is hereby granted on the grounds that third-party Plaintiff, Economy Fire Casualty Co., has no standing upon which tо base a third-party action against third-party Defendant. Third-party Plaintiffs’ rights arise out of a policy of insurance, on which they allege they are subrogated to the rights of Plaintiff, Pugh. This claim has not been paid.
“It is FURTHER ORDERED BY THE COURT that third-party Defendant‘s Motion for Summary Judgment is specifically ovеrruled as to the contentions that third-party Plaintiff‘s third-party complaint is barred by the statute of limitation of two years and that third-party Plaintiff‘s third-party complaint constitutes an improper use of Rule 14 in that it attempts an impermissible contribution among alleged joint tortfeasors.”
Economy appeals from that order.
In entering the summary judgment, the trial court held that Economy did not have standing to bring its third-party complaint against Goar, because Economy had not paid its insured, Pugh. In Smith v. Brownfield, 553 So.2d 573 (Ala. 1989), a cross-defendant argued that the insurer/cross-plaintiff did not have the right of subrogation because there wаs no evidence that the insurer had paid its insured. We held in Smith, quoting from Brown Mechanical Contractors, Inc. v. Centennial Insurance Co., 431 So.2d 932, 937 (Ala. 1983), that a third-party defendant had no right to object to the insurer‘s lack of payment, because the right to payment as a prerequisite to the right of subrogation is for the benefit of the insured. Thus, the only party with standing to object to the insurer‘s lack of payment is the insured. Moreover, Ecоnomy paid into the circuit court its policy limit of $40,000. We hold, therefore, that Economy had standing to bring its third-party complaint against Goаr.
Goar does not address the standing issue in his brief, but has elected to argue as alternative grounds for his summary judgment those grounds the trial court specifically rejected in its October 17, 1989, order. Goar argues that the applicable statute of limitations bars Economy‘s third-pаrty suit and that Economy‘s action seeks contribution among joint tort-feasors. Pursuant to McMillan, Ltd. v. Warrior Drilling Engineering Co., 512 So.2d 14 (Ala. 1986), we will address these issues.
Goar raised the statute of limitations issue for the first time in his motion for summary judgment filed on September 6, 1989, approximately two years after his initial pleading. Economy objected to Goаr‘s failure to affirmatively plead the statute of limitations defense pursuant to
“The statute of limitations is specifically listed as an affirmative defense in
A.R.Civ.P. 8(c) ; and the rule requires that it be specially pleaded. Once an answer is filed, if an affirmative defense is not pleaded, it is waived. The defense may be revived if the adverse party offers no objection; or if the party who should have pleaded it is allowed to amend his pleading; or if the defensе appears on the face of the complaint. But, specifically, a defendant ‘cannot revive [the waived affirmativе defense] in a memorandum in support of a motion for summary judgment.‘”
(Citations omitted.) Here, like the defendant in Wallace, Goar seeks to raise the affirmative defense of the statute of limitations in his motion for summary judgment. He does so two years after Economy filed its third-party complaint and he filed his motion to dismiss that comрlaint and answer to that complaint; in both the motion to dismiss and the answer he omitted that defense. We hold that Goar has waived the аffirmative defense of the statute of limitations he now asserts as an alternative ground for granting his motion for summary judgment.
Next, Goar argues аs an alternative ground for his summary judgment that Economy‘s complaint seeks contribution among joint tort-feasors. Goar‘s argument is without merit. Eсonomy, as Pugh‘s uninsured motorist coverage carrier, stands in Pugh‘s shoes in regard to its contractual right of subrogation. Economy‘s claim agаinst Goar concerns the underlying accident, wherein, had Pugh elected, she could have joined Goar. It is Craft who, as an original defеndant in the lawsuit by Pugh on the underlying accident, is prohibited by the rule against contribution among joint tort-feasors from bringing suit against Goar, not Economy.
In Olive v. State Farm Mutual Automobile Insurance Co., 456 So.2d 310 (Ala.Civ.App. 1984), the court allowed the original defendant, an uninsured motorist coverage carrier, to bring a third-party action against the tort-feasor.
Accordingly, we reverse the summary judgment in favor of Goar and remand this cause.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, ALMON and ADAMS, JJ., concur.