Opinion
2941196.
March 8, 1996. Rehearing Denied April 12, 1996. Certiorari Denied July 12, 1996 Alabama Supreme Court 1951277.
Appeal from the Circuit Court, Russell County, Paul J. Miller, Jr., J.
Wesley Schuessler, Auburn, for Appellant.
Benjamin A. Land of Buchanan Land, Columbus, Georgia, for Appellee.
Sue Blake appeals from a summary judgment entered in favor of King Lube, Inc.
The facts, viewed in a light most favorable to Blake, Wilma Corp. v. Fleming Foods of Alabama, 613 So.2d 359 (Ala. 1993), are as follows: Blake owns a 1985 Mercedes Benz diesel automobile. She began using King Lube for oil changes in 1989. In 1992 King Lube found that the threads on the oil pan were stripped. It replaced the metal oil drain plug with a rubber oil drain plug. There is a conflict in the evidence as to whether Blake knew about the replacement.
King Lube serviced Blake's automobile in August 1992, November 1992, March 1993, and June 1993. On July 29, 1993, while Blake was traveling to Mobile, Alabama, her automobile experienced abrupt engine failure from the loss of oil. Phillip Ellinburg inspected the automobile in Mobile. Ellinburg stated in deposition that oil was pouring out of the turbo charger drain line. He did not find any oil leaking from the oil drain plug.
The automobile was subsequently transferred to Columbus, Georgia, where Roy Bass, a certified Mercedes Benz mechanic, and Pete Getskow, a registered Mercedes Benz master technician, inspected it. Bass and Getskow believed that the oil was leaking from the oil pan that was sealed with the rubber drain plug. They based their determination on the spray pattern of oil underneath the automobile. Bass testified in deposition that although there was a leak in the turbo drain tube, the leak was not large enough to cause the abrupt engine failure. Bass and Getskow testified that the rubber oil plug was damaged and that it was no longer useable. Both agreed that a rubber drain plug was inappropriate for a Mercedes Benz.
Blake filed a complaint against King Lube, alleging material suppression of a material fact, wantonness, negligence, and breach of warranty. King Lube subsequently filed a motion for a summary judgment, which was granted.
Summary judgment is proper only where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Southern Guaranty Ins. Co. v. First Alabama Bank, 540 So.2d 732 (Ala. 1989). Where, however, the nonmovant produces substantial evidence to support its complaint, a summary judgment cannot be entered. Southern Guaranty Ins. Co. Substantial evidence is evidence of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions as to the existence of the fact sought to be proven. Economy Fire Casualty Co. v. Goar, 551 So.2d 957 (Ala. 1989).
The trial court entered a summary judgment without setting forth its reasons. King Lube asserts that summary judgment was proper because, it says, Blake failed to present substantial evidence connecting the damage to the automobile with King Lube's actions in maintaining the automobile.
Blake asserts that the summary judgment was made in error because, she says, there remained genuine issues of material fact to be resolved by a jury.
We find that the contradictory evidence supplied by Ellinburg, Bass, and Getskow as to the source of the oil leak presented issues of material fact to be decided by a jury. The entry of a summary judgment was, therefore, error.
The judgment of the trial court is reversed and the cause remanded for further proceedings.
The foregoing opinion was prepared by Retired Appellate Judge L. CHARLES WRIGHT while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e), Code 1975.
REVERSED AND REMANDED.
ROBERTSON, P.J., and YATES and CRAWLEY, JJ., concur.