Opinion
Civ. 733.
March 24, 1976.
Appeal from the Circuit Court, Coffee County, Enterprise Division, Eris F. Paul, J.
Richard W. Whittaker, Enterprise, for appellant.
The Alabama Supreme Court stated in Folmar v. Montgomery Fair Company, Inc., 293 Ala. 686, 309 So.2d 818, "In this jurisdiction we must also consider the effects of the scintilla rule on a summary judgment. If the plaintiff has produced a scintilla of evidence on the issue . . ., then summary judgment will not lie".
Lee McInish and Alan C. Livingston, Dothan, for appellee Auto-Owners Ins. Co.
Whether the breach of a policy condition precedent by an insured absolves the insurer of liability under the policy. Royal Indemnity Co. v. Pearson, 287 Ala. 1, 246 So.2d 652 (1971); Alabama Farm Bureau Mut. Cas. Co. v. Mills, 271 Ala. 192, 123 So.2d 138 (1960); American Fire and Cas. Co. v. Tankersley, 270 Ala. 126, 116 So.2d 579 (1959); Almeida v. State Farm Mut. Auto. Ins. Co., 53 Ala. App. 175, 178, 298 So.2d 260 (1974). Whether there existed a genuine issue of material fact which would require submission of the issue to a jury for determination. Alabama Rules of Civil Procedure, Rule 56; Taughber v. Roddam, Ala., 10 ABR 221 (1975); Twine v. Liberty National Life Ins. Co., 294 Ala. 43, 311 So.2d 299 (1975); Hoomes v. International Harvester Co., 295 Ala. 16, 321 So.2d 657 (1975); Folmar v. Montgomery Fair, Inc., 293 Ala. 686, 309 So.2d 818 (1975); Herbert v. Regency Apts. Inc., 292 Ala. 417, 295 So.2d 404 (1974); Wright Miller, Federal Practice Procedure, § 2729, p. 570. Whether the testimony of Reese that he did forward summons and complaint to auto-owners could be considered by the court in light of a later admission that he had no personal knowledge of the facts. City National Bank v. Nelson, 218 Ala. 90, 117 So. 681, 61 A.L.R. 938 (1928); Colonial L. Acc. Ins. Co. v. Collins, 280 Ala. 373, 194 So.2d 532 (1967); Dollar v. McKinney, 272 Ala. 667, 103 So.2d 791 (1958). Whether there existed any genuine issue of material fact as to waiver or estoppel raised only in pleadings by plaintiff. Rainey v. Ford Motor Credit Co., 294 Ala. 139, 313 So.2d 179 (1975).
The facts and issues involved in this appeal are identical to the facts and issues involved in Martin v. Auto-Owners Insurance, 57 Ala. App. 489, 329 So.2d 547, decided this date and designated Civ. 735.
In view of our decision in Martin v. Auto-Owners Insurance, this case is due to be reversed and remanded.
REVERSED AND REMANDED.
WRIGHT, P. J., and BRADLEY, J., concur.