PER CURIAM.
The original opinion in this case, dated October 7, 1983, is withdrawn, and the following opinion is substituted therefor:
These appeals are the result of the trial court's award of money damages to the plaintiffs, and the trial court's finding that United States Fidelity Guaranty Company (USF G) was bound under the policy of insurance to Warwick Development Company, Inc. (Warwick). We affirm in part, reverse in part, and render.
FACTS
The plaintiffs, Jerry G. Adams and Nancy B. Adams (Adamses), were purchasers of a home in Grayson Valley Estates, Highland Sector, in Jefferson County. The contract for purchase was signed on or about March 17, 1980, and the sale closed on June 24, 1980. The Adamses alleged defects throughout the structure of the residence and some nineteen are listed in the complaint. The Adamses filed suit against Warwick, the contractor/seller, and National Mortgage Company (National), the holder of the first mortgage, alleging unworkmanlike construction and misrepresentations of material facts by Warwick. Plaintiffs brought this action in the Equity Division of the Circuit Court of Jefferson County seeking rescission and cancellation of the sale and mortgage, and money damages. Defendant, Warwick, filed a third-party complaint against USF G and Northern Assurance Company of America (Northern Assurance), claiming both were liable under comprehensive general liability policies (CGL) issued to Warwick. Both companies had refused to defend Warwick in this action and denied coverage under the policies. Warwick sought recovery from the insurance companies for any sums adjudged against Warwick in favor of the Adamses, plus reasonable attorney's fees.
On the day of the trial, National, the holder of the mortgage, was dismissed upon stipulation of the parties, and Northern Assurance's motion for summary judgment was granted, resulting in its dismissal. USF G's motion for summary judgment was denied, based on Cotton States Mutual Ins. Co. v. Norrell Heating Air Conditioning Co., Inc., 370 So.2d 270 (Ala. 1979).
The trial proceeded and at the close of the evidence the Adamses, pursuant to a former ruling by the trial judge, elected the remedy of rescission rather than damages for breach of contract. The trial court expressly found that under the evidence presented the Adamses were not entitled to rescission of the contract. Notwithstanding the election of remedies by plaintiffs, the trial court found within the complaint a prayer for damages and a prayer for general relief. Citing the Alabama Rules of Civil Procedure, Rule 15 (b) and (c), and Tilley's Alabama Equity Pleading and Practice, Section 168, the trial court awarded the Adamses $4,600.00 based on the following principle:
"`If, under the averments, Complainant is entitled to relief of the character prayed, the Court under the general prayer will mold the relief to meet the equities as they appear.' (See
Dees v. Dees, [
285 Ala. 597], 235 So.2d [236] at page 237 [1970];
Wood v. Cantrell, [
224 Ala. 294],
140 So. 345 [1932];
Cox v. Cox, [
267 Ala. 372],
102 So.2d 23 [1958];
Crawford v. Crawford, 349 So.2d 65 [Ala.Civ.App. 1977])."
With regard to the third-party complaint of Warwick against USF G, the trial court found that USF G was bound under its policy of insurance to Warwick and awarded Warwick the amount of the judgment ($4,600.00), plus a reasonable attorney's fee of $6,500.00.
USF G appeals from the denial of its motion for summary judgment and from the judgment entered for Warwick on the third-party complaint. Additionally, Warwick cross-appeals from the money judgment in favor of the Adamses and the Adamses cross-appeal from the judgment. Three issues were presented for review which will be addressed separately.
I.
The first issue is whether USF G's policy provided coverage for alleged faulty workmanship and noncomplying materials in the construction of plaintiff's residence when the alleged damage was confined to the residence itself. USF G contends that the policy affords no coverage because (1) no insurable loss occurred within the policy period and (2) damages to the work of the insured attributable to faulty workmanship are expressly excluded from coverage. After a review of the record and the policy involved, we conclude that the trial court incorrectly held that USF G was bound under its policy of insurance to Warwick. In our view, there was no "occurrence" within the definition of "occurrence" found in the pertinent policy provisions. The policy clearly states that the company will pay damages for: "A. bodily injury or B. property damage to which this insurance applies caused by an occurrence." The USF G policy defines "occurrence" as "an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the Insured." For a contrary holding under circumstances amounting to "an occurrence," see Moss v. Champion Ins. Co., 442 So.2d 26 (Ala. 1983).
We cannot agree with the argument set forth by the Adamses that "a reliance upon the misrepresentations" made by Warwick constitutes an occurrence within the language of the policy. Further, we agree with USF G that if a misrepresentation were an "occurrence" within the definition of the policy then "any misrepresentations in this case would not be an `occurrence' which caused `property damage' as required to support liability under the policy." "Property damage" is defined in the policy as follows:
"(1) physical injury to or destruction of tangible property which occurs during the policy period, including the loss of use thereof at any time resulting therefrom, or
"(2) loss of use of tangible property which has not been physically injured or destroyed provided such loss of use is caused by an occurrence during the policy period."
There was no evidence in this case that a misrepresentation by Warwick caused physical injury to or destruction of tangible property. For property damage to come under the coverage of USF G, there must have been an "occurrence" within the definition of the policy. A majority of courts have held that in order to have liability under the terms of such a policy the "occurrence" must arise during the policy period, for it is the insurance that is in force at the time of the property damage that is applicable rather than insurance that was in force when the work was performed. See, e.g., Deodato v. Hartford Ins. Co., 143 N.J. Super. 396, 363 A.2d 361 (1976); Singsaas v. Diederich, 307 Minn. 153, 238 N.W.2d 878 (1976); Oceanonics, Inc. v. Petroleum Distributing Co., 280 So.2d 874 (La.Ct.App. 1973), aff'd, 292 So.2d 190 (La. 1974). USF G also asserts, and we agree, that "as a general rule the time of an `occurrence' of an accident within the meaning of an indemnity policy is not the time the wrongful act was committed but the time the complaining party was actually damaged." Muller Fuel Oil Co. v. Insurance Company of North America, 95 N.J. Super. 564, 232 A.2d 168 (1967), quoted in Deodato v. Hartford Ins. Co., 363 A.2d at 365. See also Annot., 57 A.L.R.2d 1385. By adopting this view, we necessarily overrule Wixom Brothers Co. v. Truck Insurance Exchange, 435 So.2d 1231 (Ala. 1983).
The trial court denied USF G's motion for summary judgment on the basis of Cotton States, supra. Warwick argued and reiterates on appeal that under Cotton States certain exclusions found within the policy provisions were ambiguous when read in light of each other, and that the ambiguity should be resolved in favor of the insured. Because we find that the damages claimed were not within the USF G policy coverage, we need not reach the question of ambiguity as to the policy exclusions.
II.
The next issue presented is whether the plaintiff's "election" of the relief of rescission at the close of the evidence barred the trial court's award of money damages. While it is true, as urged by Warwick, that a plaintiff may not both rescind a contract and receive money damages, this argument overlooks the fact that the Adamses were not requesting both forms of recovery, but rather were pleading and pursuing their claims for relief in the alternative, as expressly allowed by the Alabama Rules of Civil Procedure. ARCP 8 (a).
Rule 8 is identical in relevant aspects to the corresponding Federal Rule of Civil Procedure. The federal courts have consistently upheld the right of a plaintiff to try his case on alternate theories of relief and the "plaintiff cannot be required to elect upon which theory to proceed." Breeding v. Massey, 378 F.2d 171, 178 (8th Cir. 1967); Campbell v. Barnett, 351 F.2d 342, 344 (10th Cir. 1965); Pulliam v. Gulf Lumber Co., 312 F.2d 505, 507 (5th Cir. 1963); Herlihy Mid-Continent Co. v. Bay City, 293 F.2d 383, 385 (6th Cir. 1961).
Breeding v. Massey, supra, involved an appeal by the Defendant/Appellant, asserting that the claims of negligent entrustment and respondeat superior were alternative grounds for liability, and that recovery for the former could only be made when respondeat superior liability did not exist. The court found such a position unsupported by authority or logic, stating, "A party may . . . state as many separate claims or defenses as he has regardless of consistency and whether based on legal, equitable or maritime grounds." 378 F.2d at 178.
Where the plaintiff was required to elect between two inconsistent causes of action prior to submitting his case to the jury, the Third Circuit found reversible error. German v. Carnegie-Illinois Steel Corporation, 156 F.2d 977, 979 (3rd Cir. 1946). In reversing the trial court, the panel determined that the plaintiff was entitled to have the jury pass on both causes of action and if his proof sustained either, or both, he could recover damages. Id.
The Ninth Circuit, in E.H. Boly Son, Inc. v. Schneider, 525 F.2d 20 (9th Cir. 1975), affirmed the trial court's determination that while damages and restitution cannot be requested concurrently in a complaint, a plaintiff may claim these remedies as alternatives, leaving the ultimate election for the court. 525 F.2d 20, 23, n. 3; Bernstein v. United States, 256 F.2d 697, 706 (10th Cir. 1958), cert. dismissed, 358 U.S. 924, 79 S.Ct. 296, 3 L.Ed.2d 298 (1959).
At the beginning of trial in the instant case, the trial judge in effect granted the Defendant's motion to require election by saying to Plaintiffs' lawyer:
"You do have to elect, but that election need not be made until all the evidence is before the Court. . . . But the election must be made before the case rests."
The trial judge was in error in requiring the Adamses to elect under which theory they would proceed. The case had been completely tried, except for closing arguments, at the time of the "election." Warwick was not prejudiced by the Plaintiffs' presentation of evidence in support of either, or both, theories. See Senter v. B.F. Goodrich Company, 127 F. Supp. 705 (D.Colo. 1954).
Had the judge found in favor of Warwick on the basis that he was not convinced by the evidence of the breach of the contract, he would have mooted his error. Having found breach of contract, however, he was then faced with the task of awarding the appropriate relief. Because he was of the opinion that rescission was inappropriate under the circumstances, he corrected his own error, and, correctly in our opinion, found evidence to support an award of damages. "If an actionable wrong has taken place, recovery is to be granted regardless of theory and relief must not be denied through the vehicle of a forced election." Senter, supra, at 708.
We need not rely solely on federal cases. In National Security Fire and Casualty Co. v. Vintson, 414 So.2d 49 (Ala. 1982), this Court held:
"[W]here the plaintiff claims misrepresentation in the inception of the contract, the plaintiff has the right to present his case to the jury under either a breach of contract theory or the tort of misrepresentation
or both because the same facts could support a finding that the contract did exist. . . ."
"The plaintiff may then elect to submit either theory,
or both, to the factfinder, ARCP 8 (a), with the proper instructions by the court to the jury that it must determine whether one, or both, of these theories are supported by the evidence, if at all. If the jury returns a verdict for the plaintiff, it may only award damages under one of the theories, not both. However, the choice rests with the jury.
See, USF G v. McKinnon, 356 So.2d 600 (Ala. 1978)." (Emphasis supplied.)
414 So.2d at 51.
See Mid-State Homes, Inc. v. Johnson, 294 Ala. 59, 311 So.2d 312 (1975), for an example of multiple claims where the claimant may be entitled to concurrent recoveries. See, also, Alabama Football, Inc. v. Stabler, 295 Ala. 551, 319 So.2d 678 (1975). For a case dealing with certain procedural aspects and review standards in a multi-claim suit, see Aspinwall v. Gowens, 405 So.2d 134 (Ala. 1981).
Our recent cases interpreting ARCP 8 (a) clearly evidence an erosion of the former practice of requiring the plaintiff's lawyer to elect as between alternative remedies or theories of recovery. While these Plaintiffs were not entitled to concurrent recoveries on inconsistent theories (rescission and damages for the breach), we find no reason in logic or precedent to persuade us to reverse the trial court for rejecting rescission and awarding damages.
III.
Finally, we consider the Adamses' contention that the court's award of money damages should be increased. We have carefully reviewed the record in this case; and, while the evidence proffered by the Adamses would support a considerably higher award, essentially all of this evidence of defective materials and substandard workmanship was sharply contradicted. We are not inclined, under our review of the evidence of record, to revise the award upward.
As to the appeal by USF G (Case No. 81-686), the judgment is reversed and the cause is rendered. As to the appeal by Warwick (Case No. 81-697), the judgment is affirmed. As to the appeal by the Adamses (Case No. 81-707), the judgment is affirmed.
OPINION SUBSTITUTED ON REHEARING EX MERO MOTU; AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.
FAULKNER, ALMON and ADAMS, JJ., concur.
TORBERT, C.J., and MADDOX, J., concur as to Part I; dissent as to Part III; and dissent as to Part II, joining separate opinion of BEATTY, J., as to Part II.
JONES, J., concurs as to Parts II and III; and concurs specially as to Part I, with a separate opinion.
SHORES, J., concurs as to Part III; concurs in the result as to Part II; and concurs specially as to Part I, with a separate opinion.
EMBRY, J., concurs as to Part III; concurs specially as to Part I, joining JONES and SHORES, JJ., in their separate opinion; and concurs specially as to Part II, with separate opinion.
BEATTY, J., dissents as to Part III; and, with separate opinion, concurs specially as to Part I and dissents as to Part II.