The Appellate Corner, 1120 ALBJ, Vol. 81 No. 6 Pg. 462 (November, 2020)

AuthorWilson F. Green, Marc A. Starrett
PositionVol. 81 6 Pg. 462


No. Vol. 81 No. 6 Pg. 462

Alabama Bar Lawyer

November, 2020

Wilson F. Green, Marc A. Starrett


From the Alabama Supreme Court

GALs, Reasonableness of Attorneys 'Fees

Ex parte Shinaberry, No. 1180935 (Ala. July 31, 2020)

Insufficient evidence supported GAL fee, both with respect to hourly rate approved by the court and the time expended. Fee awarded was almost twice the damages awarded the minor plaintiffs and almost twice the fee awarded the attorneys who represented the plaintiffs.

Respondeat Superior; Negligent Hiring

Synergies3 Tec Services, LLC v. Corvo, No. 1170765 (Ala. August 21, 2020)

(Plurality panel opinion): (1) plaintiff's insurer was not real party in interest on claims against third party arising from property loss, because policy simply provided for right of reimbursement; (2) despite there being substantial evidence of conversion by alleged agent, alleged principals were entitled to JML on respondeat superior theory, because agent's theft was so unusual a deviation from the employee's duties, the employer benefitted in no way, and there was no evidence that employer ratified alleged agent's conduct; (3) substantial evidence supported negligent hiring claim, given agent's prior criminal theft history.


Holt v. Holt, No. 1190025 (Ala. August 21, 2020)

Circuit court never obtained jurisdiction over probate proceeding removed under Ala. Code § 12-11-41, due to circuit court's failure to enter order of removal.

Estates; Administrators Ad Litem

Ex parte Stephens, No. 1190457 (Ala. August 28, 2020)

Petitioner challenging intervivos transfer of funds by holder of power of attorney (who was appointed PR of estate) was entitled to order appointing administrator ad litem of estate under Ala. Code § 43-2-250 regarding the transfers, because PR had a conflict of interest regarding the issue.

Necessary Parties

Capitol Farmers Market, Inc. v. Delongchamp, No. 1190103 (Ala. August 28, 2020)

Adjacent landowner potentially subject to restrictive covenants involved in litigation was a necessary party under Rule 19(a); remand was required for trial court to consider, in the first instance, whether landowner can be joined in the action.

"Protective Services;" Immunity

Ex parte Smith, No. 1180834 (Ala. Sept. 4, 2020)

DHR employees were entitled to immunity under the Protective Services Act, Ala. Code § 38-9-11, because they had exercised their duties in "good faith"and in compliance with the DHR Adult Policy Services Manual; the statute is not confined to situations in which investigations of abuse reports are at issue and thus extended to decision regarding placement in group home.

"As Is" Clauses; Caveat Emptor

Kidd v. Benson, No. 1190413 (Ala. Sept. 4, 2020)

Despite the doctrine of caveat emptor in real estate sales contracts (which is often contractually grafted into transactions with "AS IS" clauses, as in this case), Alabama law has recognized three exceptions: (1) if a fiduciary relationship exists between buyer and seller; (2) seller must disclose material defects affecting health or safety not known to or readily observable by buyer; and (3) seller has a duty to disclose if buyer inquires directly about a material defect or condition of the property. The plurality (three justices) concluded that "under Alabama law, when a buyer elects to purchase real property subject to an "as is" clause in the purchase agreement and neglects to inspect the property, the buyer cannot take advantage of any exceptions to the doctrine of caveat emptor."

Open Meetings

Casey v. Seeker, No. 1190400 (Ala. Sept. 4, 2020)

Hearing presided over by an ALJ at the direction of the PSC under Ala. Code § 37-1-89 was not a "meeting" under the Open Meetings Act, even though the PSC commissioners themselves attended the hearing. Whether a "meeting" occurred at the hearing depends on whether the commissioners "deliberated" a matter at the hearing, which requires that information was exchanged "among" the commissioners. Ala. Code § 36-25A-2(1)

Medical Liability

Spencer v. Remillard, No. 1180650 (Ala. Sept. 4, 2020)

Circuit court erred by granting JML to defendant doctor at the close of plaintiff's case: (1) the requirement in § 6-5-548(c)(4) that an expert must have "practiced in this specialty" in the year preceding the alleged breach of the standard of care refers to the actual practice of the specialty, not the exact setting in which the defendant doctor practices the specialty; (2) plaintiff's causation expert's testimony, viewed in its entirety, was sufficient to establish a probability "that [decedent's] cancer had not metastasized in 2009, and probability, not certainty, is what is required to present substantial evidence of causation under the AM LA."

"Good Cause" for Amendments

Ex parte Gulf Health Hospitals, Inc., No. 1180596 (Ala. Sept. 4, 2020)

Mandamus review is not available for review of trial court's order allowing amendment to complaint for "good cause" to allege additional specific facts against the original defendant; appeal is an adequate remedy.

Venue; PEEHIP Program

Ex parte Blue Cross and Blue Shield of Alabama, No. 1190232 (Ala. Sept. 4, 2020)

Under Ala. Code § 16-25A-7(e), Montgomery Circuit Court is exclusive venue for action arising from denial of health insurance benefits under PEEHIP program covering public education employees.

Public Employment; Immunity

Anthony v. Datcher, No. 1190164 (Ala. Sept. 4, 2020)

Instructors at junior college brought action challenging the classification of their positions for salary and credentialing. Among other holdings: (1) agency's interpretation of its own regulation must stand if it is reasonable, even though it may not appear as reasonable as some other interpretation, as long it is not plainly erroneous; (2) notwithstanding Barn-hart v. Ingalls, 275 So.3d 1112 (Ala. 2018), claims for back pay were not barred by state immunity, because the plain meaning of the existing policies required the plaintiffs to be classified in Group A, and thus they were entitled to Group A pay because there was no discretion to classify them otherwise.

Insurance; Contract Interpretation; UIM Coverage; "Stacking"

Mid-Century Ins. Co. v. Watts, No. 1180852 (Ala. Sept. 18, 2020)

Vehicle's insurance policy provided UM coverage of $50,000 per person and $100,000 per "accident." Five vehicles were covered under the policy, and the policy contained a provision allowing stacking of benefits. Nine plaintiffs traveling in insured vehicle brought claims after accident (case involved four deaths and five injuries). Insurer contended that because the policies allowed the stacking of up to three UIM coverages, the maximum available coverage was $300,000 ($100,000 per accident). Injured parties contended that each of the nine occupants of the vehicle was involved in an "accident," and thus was entitled to $150,000 for each occupant ($50,000 stacked three times) for a total coverage limit of $1.35 million. The trial court denied insurer's motion for partial summary judgment on the issue and certified the issue under Rule 5. The supreme court held: (1) Rule 5 certification was proper; the controlling question of law was a matter of contract interpretation and the contract's construction in a manner consistent with Ala. Code § 32-7-6(c), and there was substantial ground for difference of opinion because the question was one of first impression; (2) On the merits, the court held that under § 32-7-6(c). "when two or more persons are injured or killed in an accident, the per accident limit of liability contained in the policy is the proper coverage limit to be applied. "Thus, per accident limit of $100,000 applied, and the permissible stacking created aggregate coverage of $300,000.

Rule 19; Indispensable Parties

Ex parte Advanced Disposal Services South, Inc., No. 1190148 (Ala. Sept. 18, 2020)

City of Tallassee (potential joint tortfeasor with Advanced) was not an indispensable party to action regarding effluent emissions pending in Macon County. Considering each of the Rule 19 factors (prejudice to the existing parties from a judgment rendered in the city's absence, the potential for avoiding prejudice in the city's absence, whether a judgment rendered in the city's absence would be adequate, and the adequacy of any remedy in the event the case is dismissed), landowner plaintiff (who sued to challenge the legality of effluents into water) had an interest in proceeding in the chosen forum. Advanced did not demonstrate that the other factors weighed so heavily in favor of outright dismissal that the existence of an alternative forum should be controlling.

Insurance; Material Policy Misrepresentations

Protective Life Ins. Co. v. Apex Parks Group, LLC, No. 1180508 (Ala. Sept. 18, 2020)


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