The Appellate Corner, 0317 ALBJ, 78 The Alabama Lawyer 154 (2017)
RECENT CIVIL DECISIONS
From the Alabama Supreme Court
RULE 59.1
Ex parte Pittman, No. 1150947 (Ala. Dec. 2, 2016)
Because of the 90-day limitation under ARCP 59.1, trial court had no jurisdiction to grant motion to vacate summary judgment under Rule 59(e) where motion was granted 110 days after motion was filed.
Service of Process
Ex parte LERETA, LLC, no. 1151054 (Ala. Dec. 2, 2016)
Service was not proper on LLC under ARCP 4(c)(6) when sent by certified mail, but not in care of any particular person, where signing party was not party authorized by rule to receive service of process, and did not check the “agent” box on the certified mail receipt.
FORUM NON CONVENIENS
Ex parte Benton, No. 1151181 (Ala. Dec. 2, 2016)
Shelby County plaintiff sued Bibb County defendant in Bibb County Circuit Court for injuries arising from MVA occurring in Shelby County. After denial of transfer motion, the supreme court granted mandamus relief: interests of justice mandated transfer because Bibb County had a weak connection to the controversy, despite the plaintiff’s choice of a permissible forum.
Estates; attorneys’ fees
Ex parte Hill, No. 1150162 (Ala. Dec. 9, 2016)
Circuit court’s administrative-expense status determination on attorneys’ fees was not subject to challenge under the invited error doctrine, given appellant’s request in the circuit court to make the challenged determination; however, ordering payment of the fees in cash and in lump sum was against the plain language of the fee agreement, which did not specify payment as lump sum in cash.
Insurance; Beneficiary Designation
Aderholt v. McDonald, No. 1150878 (Ala. Dec. 16, 2016)
Beneficiary designation of an ex-spouse remains effective after divorce; only exceptions are (1) where enforcement of a designation would violate terms of court order requiring that ex-spouse be designated, and (2) where decedent attempted to change designation, but insurer failed to process it. Neither party cited or relied upon Ala. Code § 30-4-17, a 2015 act which provides for revocation of certain transferable interests in property in the event of divorce or annulment.
Insurance; Declaratory Judgment
Privilege Underwriters Reciprocal Exchange v. Grayson, No. 1150927 (Ala. Dec. 16, 2016)
Despite lack of determination as to triggering of UM coverage on core liability question, UM carrier and potential insured had justiciable controversy concerning UM coverage based on putative insured’s residency/ household status, which was essential to the issue of coverage.
Wrongful Death; Pre-viable fetus
Stinnett v. Kennedy, No. 1150889 (Ala. Dec. 30, 2016)
Mack v. Carmack, 79 So.3d 597 (Ala. 2011), recognized that the Wrongful Death Act permits an action for the death of a pre-viable fetus, and an alleged mistake or error by licensed physician is potentially actionable.
Relation Back; Fictitious Parties
Ex parte VEL, LLC, No. 1150542 (Ala. Dec. 30, 2016)
(1) Amendment substituting MDCI for fictitious defendant after expiration of statute did not relate back; plaintiff was aware of MDCI’s involvement well before lawsuit was filed;
(2) two-month delay from filing to issuing discovery to ascertain identities of individual pharmacists did not amount to a failure to exercise due diligence so as to destroy relation-back effect of amendment substituting individual pharmacists; (3) one-month delay from obtaining answers to discovery to time of amendment adding individual defendants did not constitute a failure of due diligence; and (4) plaintiff was not entitled to equitable tolling as to statute on claims against MDCI, because MDCI had been identified as the responsible party.
Default Judgments
Hilyer v. Fortier, No. 1140991 (Ala. Jan. 6, 2017)
In MVA case, defendant met all three Kirtland factors for setting aside default judgment: (1) a meritorious defense (established through multiple affidavits; (2) lack of undue prejudice, given no loss of evidence from the time default was imposed to the time for set-aside; and (3) the default was not the result of “culpable conduct” where defendant was relying on his third-party liability carrier to defend him, and where ad-justor negligently failed to assign claim to counsel.
Arbitration
FMR Corp. v. Howard, no. 1151149 (Ala. Jan. 13, 2017)
(1) Any issue of ripeness of the claims on their merits was for arbitrator; and (2) Howard failed to point to litigation conduct by Fidelity, rather than conduct outside of litigation concerning the dispute generally, to support claim of waiver of right to compel arbitration.
Automobile Insurance
Grimes v. Alfa Mutual Insurance Company, no. 1150041 (Ala. Jan. 27, 2017)
Despite Ala. Code § 32-7-22, auto policy need not provide coverage for individuals operating the vehicle with either the express or implied permission of the insured, where policy specifically included coverage for those with express consent.
Appellate Jurisdiction
Alabama Dept. of Conservation & Nat. Resources v. Kellar, No. 1150654 (Ala. Jan. 27, 2017)
Suit to declare a statute unconstitutional was void because it was brought against a state agency; Section 14 immunity applied.
Legal Malpractice
Yarbrough v. Eversole, No. 1150400 (Ala. Jan. 27, 2017)
Typical “but for” causation required in legal malpractice not required where the allegation was that plaintiff’s Rule 32 petition should have never been filed in the first place because it had no merit, thus causing plaintiff to incur unnecessary legal fees.
Workers’ comp Exclusivity; special Employer doctrine
Ex parte Tenax Corporation, No. 1151122 (Ala. Jan. 27, 2017)
Dees, the employee of temp agency Onin, brought tort action against Tenax (where he was assigned) based on on-the-job injury; Tenax moved to dismiss based on workers’ comp exclusivity, contending that Tenax was Dees’s “special employer” under comp law. The trial court denied dismissal and Tenax sought mandamus relief. The supreme court granted the writ, reasoning that “Dees intended to enter into a contract of hire with Tenax. After asking Tenax’s plant manager f or a job, Dees applied to Onin for the job at Tenax at the direction of Tenax’s plant manager for the specific purpose of placement with Tenax; thus, Dees necessarily agreed to a contract of hire with Tenax. Also, Dees clearly submitted to Tenax’s control and supervision, and he testified that it was his understanding that he was employed by Tenax.”
Arbitration
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