author: LYONS, Justice. SEE, Justice

text:
    Susan GIAMBRONE, individually, and as mother and next friend of Jake Giambrone, a minor v. Michael DOUGLAS et al.
    1020234.
    Supreme Court of Alabama.
    Aug. 1, 2003.

      Dana G. Taunton of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery, for appellant.
    Mark S. Boardman, Philip F. Hutche-son, and Dana J. Bolden of Boardman, Carr, Weed & Hutcheson, P.C., Chelsea, for appellees.
   LYONS, Justice.

Susan Giambrone, individually, and as mother and next friend of Jake Giam-brone, a minor, appeals from a summary judgment in favor of Michael Douglas, the former head wrestling coach for Auburn High School; Charles Furlow, the athletics director at Auburn High School; and Dr. Cathy Long, the principal of Auburn High School (the defendants are hereinafter referred to collectively as “the faculty members”), based upon discretionary-function immunity, now referred to as State-agent immunity. We reverse in part, affirm in part, and remand.

I. Facts and Procedural History

At the time of the incident that forms the basis of this action, Jake was a 15-year-old freshman at Auburn High School and had recently become a member of the school’s wrestling team. Douglas, a certified teacher and the head wrestling coach, scheduled a team practice for December 27, 2000. At the practice, Jake and Douglas were “kidding around” and “poking fun” about whether Jake could win a wrestling match against Douglas. Douglas weighed approximately 200 pounds, and Jake weighed approximately 130 pounds. Although Jake testified that he did not know who initiated the challenge match, Douglas testified that Jake challenged him to wrestle at practice and that he accepted the challenge because he believed it would be “motivational” for his wrestling team.

As the other members of the wrestling team watched, Jake and Douglas began to wrestle in a “full-speed” challenge match. According to Douglas, Jake “immediately shot in with his head down” and attempted to grab Douglas’s legs. Douglas testified that he countered Jake’s move by “sprawling” away from Jake. Douglas testified that he then attempted a “cement job,” an offensive move that involved Douglas’s wrapping his arm underneath Jake’s arm in an effort to roll Jake over and bring him down to the mat. However, as Douglas was ' performing this move, he heard a “pop,” and he released Jake. Jake testified that immediately following the move he could no longer feel his feet. Jake was transported to the hospital; it was determined that he had suffered a severe spinal-eord injury. As a result, he is a quadriplegic.

The “cement job” move was one of the first wrestling techniques the members of the wrestling team were taught. Jake tes-tilled that when Douglas attempted to perform the “cement job,” Douglas failed to properly encircle Jake’s arm and that that failure to execute the move properly led to his injury. However, Douglas, along with an assistant coach and other team members, testified that Douglas had performed the move properly.

At the time the incident occurred, Douglas was in his first year as head wrestling coach. Although Douglas had previously coached football and baseball, he had no experience coaching wrestling. Douglas did not attend a wrestling clinic before he began coaching the wrestling team; he testified that he was not given an opportunity to attend such a clinic.

Long, the principal of Auburn High School, testified that her supervision of the athletic programs at the high school was indirect and that she had deferred coaching recommendations to Furlow, the athletics director. Furlow testified that he had recommended Douglas to the Auburn City Board of Education (“the Board”) because of Douglas’s superior coaching abilities and his good relationship with the students. He testified that the only criterion for selecting a coach was that the coach have a teaching certificate. Based upon Furlov/s recommendation, the Board hired Douglas as the head wrestling coach at Auburn High School.

The Board also hired two coaching aides, John Gregg and Aaron Tutwiler; the aides were hired based upon Furlow’s recommendation. The Board hired the aides to assist Douglas during the wrestling practices and to teach the members of the wrestling team the technical aspects of the sport of wrestling. Gregg and Tut-wiler both had been members of wresting teams while they were in high school, had taught wrestling techniques during summer wrestling camps at junior high schools, and had worked in conjunction with the Auburn University club wrestling team.

Douglas testified in his affidavit that he learned wrestling techniques from Gregg and Tutwiler and from watching wrestling videotapes. He described his duties as head coach:

“5. I was not provided any guidelines on how to run wrestling practices. Although I consulted with my assistant coaches, I made the final decisions on how practices were to be run. Working within the school schedule, I made the final decision as to when practices would take place and how long they would last. I made the final decisions on what drills the wrestlers needed and how long the drills should last. I was responsible for motivating the wrestlers and made the final decision concerning such. I made the final decision as to who would be a ‘starter’ at matches, which included evaluating the skill level of each student athlete on the team. I used my own discretion and judgment based on my education, experience and training in making such decisions.
“6. No one instructed me not to wrestle with the student wrestlers. In my own discretion and judgment, based on my education, experience and training, I accepted a challenge to wrestle with student wrestler Jake Giambrone at wrestling practice, believing this was motivational for the wrestling team.
“7. Due to my education, experience and training, I am familiar with the standard of care required of a high school athletic coach in the State of Alabama during the 2000-2001 school year. At all times relevant to this lawsuit, I met that standard of care.”

On May 29, 2001, Giambrone, individually, and as mother and next friend of Jake, brought this action. In it.she alleged that Douglas was negligent and wanton in wrestling with Jake without having the proper qualifications or training. Giam-brone also alleged that Furlow and Long had been negligent and wanton in failing to provide a qualified coach for the wrestling team. Giambrone claimed that the decisions and actions of the faculty members that had resulted in Jake’s injury did not involve the exercise of judgment.

The faculty members filed a summary-judgment motion, as well as a summary of undisputed facts, a brief, and evidentiary material. The faculty members argued, among other things, that they were entitled to State-agent immunity. Giambrone opposed the summary-judgment motion and filed evidentiary material supporting her claims. The trial court entered a summary judgment in the faculty members’ favor based on State-agent immunity.

II. Standard of Review

Our review of a summary judgment is de novo. “A motion for summary judgment is granted only when the evidence demonstrates that ‘there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ Rule 56(c), Ala. R. Civ. P.” Reichert v. City of Mobile, 776 So.2d 761, 764 (Ala.2000). We apply “the same standard as that of the trial court in determining whether the evidence before the court made out a genuine issue of material fact.” Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988); System Dynamics Int’l, Inc. v. Boykin, 683 So.2d 419, 420 (Ala.1996). In order to defeat a properly supported motion for a summary judgment, the nonmoving party must present substantial evidence creating a genuine issue of material fact. “Substantial evidence” is “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).

III. Discussion

Giambrone claims that the faculty members violated clear guidelines and rules that govern their respective positions. Giambrone claims that Douglas is not entitled to State-agent immunity because (1) he failed to attend a wrestling clinic hosted by the Alabama High School Athletic Association (“the AHSAA”), which all wrestling coaches were required to attend and at which potentially dangerous and illegal holds would have been discussed; (2) he violated the competition guidelines as promulgated by the National Federation of Wrestling (“NFW”); and (8) he engaged in “inequitable competition” with Jake in violation of the code of conduct contained in the Alabama High School Athletic Directors and Coaches Association Directories (“the Athletic Directories”). Giambrone also claims that Furlow is not entitled to State-agent immunity because he violated the rules of the AHSAA in failing to send Douglas to a mandatory wrestling clinic. Finally, Gi-ambrone claims that Furlow and Long violated the guidelines of the AHSAA in hiring Douglas. Giambrone claims that, because of the failure to follow the rules governing their positions and their failure to exercise due care, the faculty members are not entitled to the protection of State-agent immunity as restated in Ex parte Cranman, 792 So.2d 392 (Ala.2000).

The faculty members claim that they are entitled to State-agent immunity because, they say, their actions fall within their duties of supervising personnel and educating students. They point out that the guidelines and rules Giambrone alleges they violated were not adopted by the Board, and, therefore, the rules were not applicable to and did not impose any duties on the faculty members. Even if the rules were applicable to them, they argue, the rules Giambrone relies on are not so specific as to impose a duty upon them. The faculty members also argue that Giambrone failed to present substantial evidence to support her claims that the faculty members had been negligent and wanton and that their negligence and wantonness had caused Jake’s injury.

In Cranman, this Court restated the doctrine of State-agent immunity as follows:

“A State agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent’s
“(1) formulating plans, policies, or designs; or
“(2) exercising his or her judgment in the administration of a department or agency of government, including, but not limited to, examples such as:
“(a) making administrative adjudications;
“(b) allocating resources;
“(c) negotiating contracts;
“(d) hiring, firing, transferring, assigning, or supervising personnel; or
“(3) discharging duties imposed on a department or agency by statute, rule, or regulation, insofar as the statute, rule, or regulation prescribes the manner for performing the duties and the State agent performs the duties in that manner; or
“(4) exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement officers’ arresting or attempting to arrest persons; or
“(5) exercising judgment in the discharge of duties imposed by statute, rule, or regulation in releasing prisoners, counseling or releasing persons of unsound mind, or educating students.
“Notwithstanding anything to the contrary in the foregoing statement of the rule, a State agent shall not be immune from civil liability in his or her personal capacity
“(1) when the Constitution or laws of the United States, or the Constitution of this State, or laws, rules, or regulations of this State enacted or promulgated for the purpose of regulating the activities of a governmental agency require otherwise; or
“(2) when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.”

792 So.2d at 405 (first and last emphasis original; other emphasis added).

We have established a “burden-shifting” process when a party raises the defense of State-agent immunity. Ex parte Wood, 852 So.2d 705 (Ala.2002). In order to claim State-agent immunity, the faculty members bear the burden of demonstrating that Giambrone’s claims arise from a function that would entitle them to immunity. Wood, 852 So.2d at 709; Ryan v. Hayes, 831 So.2d 21 (Ala.2002). If the faculty members make such a showing, the burden then shifts to Giambrone, who, in order to deny the faculty members immunity from suit, must establish that the faculty members acted willfully, maliciously, fraudulently, in bad faith, or beyond their authority. Wood, 852 So.2d at 709; Ex parte Davis, 721 So.2d 685, 689 (Ala.1998). A State agent acts beyond authority and is therefore not immune when he or she “fail[s] to discharge duties pursuant to detailed rules or regulations, such as those stated on a checklist.” Ex parte Butts, 775 So.2d 173, 178 (Ala.2000).

A Douglas

Giambrone’s action against Douglas arises from the decision Douglas made to engage in a wrestling match with Jake in an attempt to motivate the members of the wrestling team. Such a decision involves the exercise of judgment in educating students, a category included in the Cranman restatement of State-agent immunity. 792 So.2d at 405. Nevertheless, Giambrone argues that Douglas was engaged in a ministerial act and that he was not “exercising judgment” because, she says, he violated clear rules and regulations governing his position as head coach of the wrestling team.

State agents are entitled to immunity for actions taken in the exercise of their judgment in educating students when they are discharging duties imposed by statute, rule, or regulation. Ex parte Nall, [Ms. 1012099, June 6, 2003] — So.2d - (Ala.2003); Ex parte Spivey, 846 So.2d 322 (Ala.2002); Ex parte Blankenship, 806 So.2d 1186, 1190 (Ala.2000); Cranman, 792 So.2d at 405. In Nall, a high-school student was injured during baseball practice while one coach was hitting balls and another coach was instructing runners how to “read” the ball after the coach hit each ball. One of the batted balls struck a student, who had been instructed to watch the practice drill, in the head. — So.2d at -. The student sued the coaches, claiming that they had been negligent and wanton in conducting the practice and in supervising the players. — So.2d at -. We acknowledged in Nall that the Escambia County Board of Education had not adopted any rules or regulations specifying how the baseball practices at the high school were to be conducted. — So.2d at -. We concluded that the coaches were entitled to State-agent immunity because they exercised “broad judgment in planning the safe conduct of the session and in deciding whether safety hazards existed.” — So.2d at -. See also Blankenship, 806 So.2d at 1190 (State-agent immunity protects agents in the exercise of judgment in educating students, and “[w]e will not second-guess their decisions”).

In the present action, the guidelines and rules Giambrone alleges the faculty members violated all promote safety in the sport of wrestling. The AHSAA is an association organized by member schools to control and promote athletic programs in high schools in Alabama. Among other things, it provides mandatory clinics for head coaches. The NFW governs high-school wrestling and provides rules for wrestling competitions such as, for example, which wrestling moves are illegal and unsafe. Finally, the Athletic Directories is an association designed to foster professional relationships among coaches of this State. It provides that all coaches shall be carefully selected and well trained and that coaches should not arrange competition between individuals whose physical abilities are widely disparate.

However, as was the case in Nall, the rules and regulations cited by Giambrone were not adopted by the Board. Dr. Terry Jenkins, the superintendent of the Auburn City School System, testified:

“As Superintendent of the Auburn City School System, I am familiar with the rules, regulations, policies and procedures of the [Board]. The [Board] has not at any time adopted the Constitution, the Athletic Code for Coaches, the Code of Ethics for Coaches or any other recommendations or suggestions contained in [the Athletic Directories]. The [Board] does not require its principals, athletic directors or coaches to follow the recommendations or suggestions contained in said [Athletic Directories].
“There were no rules, regulations, policies or procedures adopted by the [Board] that established how wrestling practice was to be conducted on December 27, 2000, or at any other time. No rules or guidelines of [the NFW] or [the AHSAA] or [the Athletic Directories] had been adopted by the [Board] as applicable to practice activities.”

(Emphasis added.) Thus, the Board had not imposed any mandatory requirements on how Douglas was to conduct each wrestling practice; instead, Douglas was permitted to exercise broad judgment in the education of his students. See Nall, — So.2d at-.

Our inquiry does not end here, however. Under our standard in Cranman, as applied in Butts, State-agent immunity is unavailable to Douglas if he “failed to discharge duties pursuant to detailed rules or regulations, such as those stated on a checklist.” Butts, 775 So.2d at 178. Unlike Nall, in this case Furlow, who was in a supervisory position, furnished Douglas with the guidelines and rules of the AH-SAA, the NFW, and the Athletic Directories, and we must consider whether Fur-low’s furnishing those guidelines and rules imposed a duty upon Douglas to regulate his conduct during the practices of the wrestling team.

It is clear from the record that the Board gave Furlow broad authority to supervise the coaches employed at Auburn High School and to impose on them any duties he believed were necessary to perform their jobs. Furlow testified that he was responsible for “administering” the athletics program and that he reported directly to the superintendent of the Auburn City School System. He also testified that he conducted an annual meeting of the coaches of Auburn High School in which he instructed the coaches (1) to follow the guidelines of the AHSAA, which, according to Furlow, answer questions concerning the “dos and don’ts” of each sport; (2) to complete their applications for the Athletic Directories and to follow the guidelines in the Athletic Directories; and (3) to complete their paperwork regarding administrative issues such as transportation and purchase orders. Fur-low also testified that he provided Douglas with a book containing rules promulgated by the NFW in order to make sure that Douglas knew the rules for conducting wrestling matches. Although Furlow was not directed by the Board to impose on the coaches at Auburn High School the guidelines and rules of the AHSAA, the NFW, and the Athletic Directories, it was within the exercise of his judgment to “insist” that the coaches comply with those guidelines and rules.

Therefore, Douglas’s “broad authority” to exercise judgment in the safe conduct of his wrestling team practices was limited by the guidelines and rules furnished and imposed by Furlow. For example,, the code of conduct contained in the Athletic Directories provided that coaches should not arrange competitions between individuals whose physical abilities are widely disparate. This rule reasonably can be construed to apply to a challenge match between a coach and a student. Moreover, a wide disparity existed between Douglas, who was 29 years old and weighed approximately 200 pounds, and Jake, who was 15 years old and weighed approximately 130 pounds. Steven Gaydosh, an expert witness presented by Douglas who had 21 years of experience as a head wrestling coach, testified that Douglas and Jake did not have “equal physical ability.” The challenge match between Douglas and Jake violated the code of conduct for coaches contained in the Athletic Directories, which Douglas, as mandated by Fur-low, was required to follow.

Furthermore, the AHSAA and the NFW provide rules addressing potentially dangerous wrestling holds and illegal headlocks. Under the NFW rules, “any headlock in which the arms or hands are locked around the opponent’s head without encircling an arm ... or leg” is illegal. The NFW rules also indicate that a hold that forces a body part to the limit of the normal range of movement is potentially dangerous and could be considered an illegal move. Jake testified that Douglas improperly failed to encircle his arm in executing the move during the challenge match that led to his injury. Douglas, an assistant coach, and other team members all testified that Douglas properly performed the move. Viewing the evidence in the light most favorable to Giambrone, as we are required to do in our review of a summary judgment, we cannot determine, as a matter of law, that Douglas’s technique while engaging in the challenge match with Jake was proper according to the guidelines provided by the AHSAA and the NFW rules.

Douglas argues that the guidelines and rules Giambrone alleges he violated cannot give rise to a legal responsibility in the absence of their formal acceptance or adoption by the Board. However, Furlow specifically furnished the guidelines and rules to the coaches at the annual coaches meeting. In authorizing the use of the guidelines and rules by the coaches, Fur-low exercised that judgment the Board allowed him to exercise. We cannot agree that such guidelines and rules must be adopted by the Board before they can create a duty on Douglas’s part.

Douglas also contends that the guidelines and rules are not sufficiently detailed enough to create specific duties, citing Spi-vey, supra, and Butts, supra. In Spivey, a student injured while using a shaper that lacked certain safety guards sued his teacher and the teacher’s supervisor. The student claimed that the teacher had removed a guide fence from the shaper and that the removal of the guide fence led to his injuries. 846 So.2d at 832. The student claimed that neither his teacher nor his teacher’s supervisor was entitled to State-agent immunity because, he argued, the teacher failed to follow what the student alleged to be “clear rules and regulations” concerning the safety of the shaper. 846 So.2d at 332. The student cited regulations including, among others, guidelines from the faculty handbook and job descriptions that stated that teachers should ensure the safety of the students and report injuries. We concluded that those safety guidelines were “general statements” regarding safety and that they were not the type of “ ‘detailed rules and regulations’ that would remove a State agent’s judgment in the performance of required acts.” 846 So.2d at 333 (quoting Butts, 775 So.2d at 178).

The guidelines in Spivey merely established the general responsibility to apply safety rules to the conduct of students and teachers; here, the guidelines and rules provided specific instructions regarding the proper techniques to be used in coaching the sport of wrestling. The guidelines and rules removed Douglas’s judgment in determining whether he should participate in a “full speed” challenge match with a student who was less experienced, much younger, and smaller than Douglas. Moreover, the guidelines and rules restricted the type of moves that are permissible in the sport of wrestling. Because a trier of fact could determine that Douglas performed an illegal move during an “inequitable” challenge match, thereby failing to discharge his duties pursuant to “detailed rules or regulations,” we cannot determine at this stage in the proceedings that Douglas is entitled to State-agent immunity. Douglas did not meet his burden of establishing that his actions and decisions involved functions that entitled him to immunity.

B. Furlow and Long

Giambrone’s action against Fur-low and Long arises from Furlow’s decision to recommend Douglas to the Board as the head wrestling coach and Long’s decision to defer such recommendations regarding athletic personnel to Furlow. Both decisions involved the exercise of judgment in educating students or in supervising personnel, categories within the Cranman restatement of State-agent immunity. 792 So.2d at 405. However, unlike the duties Furlow imposed upon Douglas by his acceptance of the AHSAA guidelines and the NWF rules, no guidelines or rules were imposed upon Furlow and Long specifying how Furlow should choose a coach for the wrestling program and how involved Long should have been in the hiring process for athletic personnel. Because the Board had not adopted any guidelines or rules addressing those issues, Furlow and Long “were left to exercise broad judgment” in making their respective decisions regarding the appropriate level at which to supervise personnel, the qualifications required in a wrestling coach, and the safety measures that were to be provided at each wrestling practice. See Nall, — So.2d at -; Spivey, 846 So.2d at 331.

Giambrone also claims that the AHSAA. guidelines mandated that Furlow send Douglas to a wrestling clinic at which potentially dangerous and illegal holds would have been discussed. Douglas did not attend the wrestling clinic, and Furlow testified that he had merely assumed that Douglas had attended the clinic because he did not receive a notice from the AH-SAA indicating that he had not. According to Giambrone, Furlow’s failure to follow the mandate of the AHSAA abrogates his State-agent immunity. However, Fur-low was not required by the Board or any other entity or person in a supervisory position to follow the AHSAA mandates. While Furlow had the authority to require subordinates to comply with those rules, his failure to submit himself voluntarily to those rules does not make his conduct a violation of “duties imposed on a department or agency by statute, rule, or regulation.” Cranman, 792 So.2d at 405. Furlow exercised his own judgment in determining the extent to which he should follow the AHSAA mandates and in determining the level of training required for new coaches. Furlow is entitled to immunity from liability because in supervising Douglas he was exercising his judgment.

Even assuming that Furlow and Long were under a mandatory duty to follow the guidelines and rules Giambrone argues they should have been following, the guidelines and rules that applied to Furlow and Long, unlike the guidelines and rules that applied to Douglas, were not sufficiently detailed to impose specific duties. See Spivey, 846 So.2d at 331-32; Ex parte Butts, 775 So.2d 173 (Ala.2000) (State-agent immunity withheld if a State agent fails to discharge duties pursuant to “detailed rules or regulations”). The Athletic Directories provide that coaches are to be “carefully selected” and “well-trained members of the school staff.” It also states that a coach should “show a mastery of the principles that he is going to teach” and that “athletes have a right to expect the coach to have a genuine and up-to-date knowledge of that which he proposes to teach.” The AHSAA provides that the high-school principal “shall be ultimately responsible in all matters” relating to high-school sports. These general statements are not the type of detailed rules and regulations that could remove the exercise of Furlow and Long’s judgment in the performance of required acts. See Spivey, 846 So.2d at 331-32. Furlow and Long met their burden of establishing that their actions and decisions involved functions entitling them to immunity.

In order to deny Furlow and Long immunity from suit, therefore, Giambrone must establish that they acted willfully, maliciously, fraudulently, in bad faith, or beyond their authority. See Cranman, 792 So.2d at 405; Wood, 852 So.2d at 709. Giambrone initially claimed that Furlow and Long acted beyond their authority by violating the guidelines or rules promulgated by the AHSAA, the NFW, and the Athletic Directories. However, because the guidelines and rules do not impose mandatory duties upon Furlow and Long, the decision whether to follow the guidelines and rules was within their judgment.

Giambrone also argues in her reply brief that Furlow and Long acted in bad faith by failing to adhere to the same safety rules that they had previously promised parents and students they would adhere to. Giambrone refers to the waiver in the high school’s liability insurance policy in which the faculty members promised to “abide by all written rules regarding behavior and safety.” As previously stated, Furlow and Long were not required to follow any of the guidelines and rules Gi-ambrone argues they violated. As educators, they are required to exercise their judgment in supervising personnel and in educating students. Moreover, it is well-settled that Giambrone may not raise an issue for the first time in a reply brief filed on appeal. See Sanders v. Smitherman, 776 So.2d 68, 73 n. 4 (Ala.2000).

With the benefit of hindsight, one might conclude that judgment could have been better exercised and the incident avoided if Furlow had recommended a coach with more wrestling experience or if Long had been more involved in Douglas’s hiring. See Spivey, 846 So.2d at 333. However, under our standard in Cranman, supra, we do not hold State agents answerable in money damages for the consequences of poor judgment in the education of students. The immunity afforded State agents who exercise their judgment in the education of students and the supervision of personnel is not abrogated for negligent and wanton behavior; instead, immunity is withheld only upon a showing that the State agent acted willfully, maliciously, fraudulently, in bad faith, or beyond his or her authority. Cranman, 792 So.2d at 405. The facts here do not fit within this exception to State-agent immunity.

IV. Conclusion

We reverse the summary judgment in favor of Douglas, affirm the summary judgment in favor of Furlow and Long, and remand the case for proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

HOUSTON, JOHNSTONE, HARWOOD, WOODALL, and STUART, JJ., concur.

SEE and BROWN, JJ., concur specially.

MOORE, C.J., recuses himself.

SEE, Justice

(concurring specially).

As I understand the main opinion, the Court reverses the summary judgment in favor of Michael Douglas, the former head wrestling coach, because Douglas engaged in an “ ‘inequitable’ challenge match” with Jake, a student, in which Douglas performed an allegedly “illegal” move, i.e., a move not permitted under the guidelines and rules promulgated by the AHSAA and the NFW, and, therefore, Douglas is not entitled to State-agent immunity. I agree that Douglas’s actions in engaging in an “ ‘inequitable’ challenge match” with Jake fell outside the protection of the doctrine of State-agent immunity and that Douglas is therefore subject to suit for the injuries Jake allegedly sustained as a result of that violation. I do not believe, however, that, standing alone, Douglas’s alleged failure to properly execute a wrestling move is a sufficient independent basis for denying State-agent immunity.

This Court has afforded educators State-agent immunity to protect them in their exercise of discretion in educating students. See Ex parte Nall, [Ms. 1012099, June 6, 2003] — So.2d - (Ala. 2003); Ex parte Spivey, 846 So.2d 322 (Ala.2002); Ex parte Blankenship, 806 So.2d 1186, 1190 (Ala.2000); Lennon v. Petersen, 624 So.2d 171, 173-74 (1993). Teachers perform a public responsibility; to deny teachers State-agent immunity and to require them to defend themselves in civil actions brought by students or parents would discourage them in the performance of their public responsibility. In this case, the parties do not argue that Douglas’s employment prohibited him from conducting practice drills and demonstrating proper and improper wrestling holds in order to educate his students. There are a multitude of rules in all sports — football, basketball, gymnastics— that for safety and other reasons deem certain moves “illegal.” If a coach merely fails to properly perform a move that if properly performed would be “legal,” then I cannot agree .that his or her actions will for that reason fall outside the scope of State-agent immunity and subject the coach to litigation. A coach’s flawed demonstration of a tackle, a tag, or a wrestling hold, absent other circumstances, should not remove the coach from the protection afforded by the doctrine of State-agent immunity.

BROWN, J., concurs.

      . The immunity available to individuals sued for actions taken on behalf of the State is now referred to as "State-agent immunity.” Ex parte Cranman, 792 So.2d 392, 397 (Ala.2000). See also Ex parte Butts, 775 So.2d 173 (Ala.2000), in which a majority of this Court adopted the Cranman restatement of the rule governing State-agent immunity.

      . "Sprawling” is a wrestling technique in which a player throws his legs back, typically landing on his knees, in order to avoid having his legs grabbed by his opponent.

      . Furlow testified that Auburn High School is a member of the AHSAA.

      . See Ex parte Coleman, 861 So.2d 1080 (Ala.2003) (when considering a summary-judgment motion, [t]he court must accept the tendencies of the evidence most favorable to the nonmoving party and must resolve all reasonable doubts in favor of the nonmoving party").

      . See Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991)("One of the purposes of immunity, absolute and quali-Bed, is to spare a defendant not only unwarranted liability but unwarranted demands customarily imposed upon those defending a long drawn out lawsuit.”); Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (stating that qualified immunity "is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial”).


source: Caselaw Access Project

author: JOHNSTONE, Justice.

license: Public Domain

text:
    Elton O. TANNER, Jr., and Tanner & Company, P.C. v. STATE FARM FIRE & CASUALTY COMPANY.
    1010888.
    Supreme Court of Alabama.
    Aug. 1, 2003.

      Robert H. Smith of Galloway, Smith, Wettermark & Everest, L.L.P., Mobile, for appellants.
    C. Robert Gottlieb, Jr., Mobile, for ap-pellee.
   JOHNSTONE, Justice.

The defendants Elton O. Tanner, Jr. (“Tanner”), and Tanner & Company, P.C. (“Tanner & Co.”), appeal a summary judgment for the plaintiff State Farm Fire & Casualty Company in a declaratory judgment action. The judgment declared that a State Farm liability insurance policy (“the policy”) did not cover Tanner and Tanner & Co. for a lawsuit Wayne R. Mitchell had filed against them (“Mitchell’s lawsuit”). We affirm in part, reverse in part, and remand with directions.

Facts

Mitchell, a partner in two partnerships named MASCO I and MASCO IV, sued the other partners, including Tanner, for suppression; breach of fiduciary duty; conversion; and intentional, reckless, and innocent misrepresentation. Mitchell alleged that Tanner and the other partners had swapped the maritime vessels constituting the principal assets of the partnerships for replacement vessels without Mitchell’s knowledge; that Tanner and the other partners had concealed these swaps from Mitchell; that Tanner and the other partners had misled Mitchell concerning these swaps; and that Tanner and the other partners had withheld information and documents Mitchell had requested relating to MASCO I and MASCO IV.

Subsequently, Mitchell amended his complaint to add separate claims against Tanner, who was also Mitchell’s accountant, for accounting malpractice allegedly committed in rendering accounting services that related to Mitchell’s investments in MASCO I and MASCO IV.

On receiving Mitchell’s lawsuit papers, Tanner requested that State Farm defend and indemnify him under a policy of liability insurance. State Farm refused Tanner’s request and, instead, brought this declaratory judgment action for a declaration that the policy did not afford Tanner coverage for Mitchell’s claims. Meanwhile, in Mitchell’s lawsuit, Tanner’s accounting-malpractice insurer, Interstate Insurance Company, defended Tanner.

Tanner filed his answer to the State Farm declaratory judgment action. While the answer is not also entitled a counterclaim for declaratory judgment, it is, by its content, tantamount to a counterclaim for a declaration that Tanner was due defense and indemnification under the State Farm policy.

Subsequently, Mitchell amended his complaint again to add Tanner & Co., Tanner’s professional corporation, as an additional defendant. Mitchell’s amended allegations included Tanner & Co. itself as a partner in MASCO I and MASCO IV and charged Tanner in his capacity as the “owner and principal” of Tanner & Co. as well as in his capacity as an individual partner for his allegedly tortious partnership participation:

“5. In or about 1984, Plaintiff Wayne R. Mitchell, an adult resident citizen of Mobile County, Alabama, entered into general partnership agreements with, among others, Defendants James Michael Rice, Elton 0. Tanner, Jr., Tanner & Co., Professional Corporation, Master Boat Builders and MASCO Boats, Inc. The purpose of these partnership agreements [was] for the partners to contribute sums of money so that Master Boat Builders could manufacture certain motor vessels which, upon completion, would be leased for the purpose of generating income on behalf of the partnerships. ...
“6.
“7. In or about October, 1996, Plaintiff was notified by Defendant, Elton 0. Tanner, Jr. the owner and principal of Defendant, Tanner & Co., Professional Corporation, that all the other partners wanted to terminate the partnership agreements and that Plaintiffs share, upon dissolution of the partnerships, was $20,000.00 for MASCO I and $20,000.00 for MASCO IV.
“8. Plaintiff objected to the dissolution of the partnership agreements and called upon Tanner, as oumer and principal of Tanner & Co., Professional Corporation, and as general partner of the partnerships and as Plaintiffs professional accountant, to explain how his proportionate shares had been calculated and to provide an accounting of Plaintiffs shares and of the shares of the other partners in MASCO I and MAS-CO IV. Tanner refused to provide any information whatsoever in response to Plaintiffs requests.... ”

(Emphasis added.) Mitchell’s complaint as last amended alleged against Tanner and Tanner & Co. in these capacities all of the claims Mitchell had already alleged against Tanner as an individual partner. State Farm then amended its complaint in this declaratory judgment action to add Tanner & Co. as an additional defendant and to seek a declaratory judgment that Tanner & Co. was not entitled to coverage either.

State Farm declined to participate in settlement negotiations in Mitchell’s lawsuit. When Tanner notified State Farm that he intended to settle Mitchell’s claims for $50,000, State Farm refused to contribute any of the settlement funds. Interstate Insurance Company contributed $20,000 of the settlement funds, and Tanner paid the remaining $30,000.

After Tanner settled Mitchell’s lawsuit, State Farm moved for summary judgment in this declaratory judgment action on the grounds that: (1) Mitchell had sued Tanner and Tanner & Co. for intentional conduct which did not constitute an “occurrence” under the insuring clause of the policy and which would incur the exclusion in the policy for damages “intended or expected from the standpoint of the insured”; and (2) Mitchell had sued Tanner and Tanner & Co. for conduct which would incur the exclusion in the policy for damages “due to the rendering of professional services.” State Farm conceded in the supporting brief that, because Mitchell had claimed damages for mental anguish as well as pecuniary loss, State Farm was not entitled to a summary judgment on the ground that Mitchell’s lawsuit had not claimed damages for “bodily injury.” Although State Farm did initially assert as a ground for summary judgment that Tanner had failed to give timely notice of Mitchell’s claims, State Farm subsequently conceded that it could not prevail on this ground. State Farm did not assert as a ground for summary judgment either that Tanner & Co. was not an insured as defined by the policy or that Tanner himself was not an insured as defined by the policy-

As evidence in support of summary judgment, State Farm submitted the policy, Mitchell’s lawsuit complaint, and the depositions of Mitchell and Tanner taken in this declaratory judgment action.

The policy defines who is an insured, in pertinent part:

“1. If you are designated in the Declarations as:
“c. an organization other than a partnership or joint venture, you are an insured. Your executive officers, directors and trustees are insureds but only with respect to their duties as your officers, directors, or trustees. Your stockholders are also insureds but only with respect to their liability as stockholders.”
“2. Each of the following is also an insured:
“a. your employees, other than your executive officers, but only for acts within the scope of their employment by you.”

The insuring clause of the policy provides, in pertinent part:

“[State Farm] will pay those sums that the insured becomes legally obligated to pay as damages because of bodily injury ... to which this insurance applies.... This insurance applies only:
1. to bodily injury ... caused by an occurrence.... ”

The policy defines “occurrence,” in pertinent part, as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions which result in bodily injury....”

The duty-to-defend clause in the policy provides, in pertinent part:

“We will have the right and duty to defend any claim or suit seeking damages payable under this policy even though the allegations of the suit may be groundless, false or fraudulent....”

The exclusion for damages “expected or intended from the standpoint of the insured” provides, in pertinent part:

“[T]his insurance does not apply:
“1. to bodily injury ...:
“a. expected or intended from the standpoint of the insured .... ”

The exclusion for damages “due to the rendering of professional services” provides, in pertinent part:

“[T]his insurance does not apply:
“10. to bodily injury ... due to rendering or failure to render any professional services.... This includes but is not limited to:
“a.... accounting ... services ....”

Mitchell testified in the deposition State Farm took after Mitchell had settled his lawsuit that, although Mitchell’s lawsuit complaint had contained claims that Tanner, in his capacity as Mitchell’s partner, had wronged Mitchell unintentionally, Mitchell had actually “felt” or “contended” that Tanner had been acting in his capacity as Mitchell’s accountant when Tanner wronged Mitchell and that Tanner had been acting intentionally when he wronged Mitchell:

“Q. And so regardless of what your lawyers may have done in their legalese or legal couching of claims, your contention all along was he should have told me as my accountant and rendered a professional service to me by telling me as my accountant and my financial ad-visor, these things are going on, because I was entitled to know and he didn’t tell me?
“A. I feel he should have told me.
“Q. And you feel like he intentionally didn’t tell you?
“I—
“A. I feel like he intentionally didn’t tell me.
“Q. That’s been your claim all along?
“A. That’s been my claim all along.”

Tanner and Tanner & Co., opposing summary judgment for State Farm and cross-moving for summary judgment, argued that: (1) Mitchell’s claims for innocent misrepresentation, reckless misrepresentation, and suppression constituted “occurrences” under the insuring clause of the policy and did not incur the exclusion for damages “expected or intended from the standpoint of the insured” because Tanner did not subjectively expect or intend to cause any damage to Mitchell; and (2) the exclusion for damages “due to the rendering of professional services” did not exclude Mitchell’s claims against Tanner or Tanner & Co. for innocent misrepresentation, reckless misrepresentation, or suppression because those claims arose from Tanner and Mitchell’s relationship as partners rather than their relationship as accountant and client.

Tanner and Tanner & Co. submitted an affidavit from Tanner in opposition to State Farm’s summary-judgment motion. In the affidavit, Tanner testified that he had not intentionally misrepresented any facts to Mitchell; had not intentionally misled Mitchell in any way; and, specifically, had not intentionally misrepresented any facts regarding the swaps of the vessels:

“Never did I intend to misrepresent anything to [Mitchell] or intentionally mislead him in any way.
“I never intended to misrepresent anything to Mr. Mitchell concerning the swaps of the vessels.... ”

Entering summary judgment for State Farm, the trial court held that State Farm owed no duty to defend Tanner or Tanner & Co. in Mitchell’s lawsuit and that State Farm owed no duty to indemnify Tanner or Tanner & Co. for Mitchell’s claims. In entering summary judgment for State Farm, the trial court said:

“4. The Court finds that Wayne R. Mitchell, by his very testimony, has established that he was seeking damages only for intentional conduct. Further, the Court finds that the basis of the claims of Wayne R. Mitchell against Elton 0. Tanner, Jr. deal with rendering or failure to render accounting services. The Court finds that the professional services exclusion applies as does the intentional act exclusion to preclude coverage for the claims of Wayne R. Mitchell. The Court finds that there has been no ‘occurrence’ as defined by the State Farm policy....”

Although the trial court did not expressly state that it was denying the cross-motion of Tanner and Tanner & Co. for summary judgment, the entry of judgment for State Farm necessarily constituted a denial of the cross-motion of Tanner and Tanner & Co.

Issues

This appeal presents these issues: (1) whether the evidence before the trial court established, without genuine dispute of material fact and as a matter of law, that State Farm did not owe a duty to defend Tanner and Tanner & Co.; and (2) whether the evidence before the trial court established, without genuine dispute of material fact and as a matter of law, that State Farm did not owe a duty to indemnify Tanner and Tanner & Co.

Standard of Review
“ We review a summary judgment de novo. We apply the same standard of review as the trial court in determining whether the evidence presented to the trial court demonstrated the existence of a genuine issue of material fact. A summary judgment is proper where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” ’ ”

Slay v. Keller Indus., Inc., 823 So.2d 623, 624-25 (Ala.2001) (citations omitted) (quoting Northwest Florida Truss, Inc. v. Baldwin County Comm’n, 782 So.2d 274, 276 (Ala.2000)).

Duty to Defend

Liability insurance coverage includes two separate duties: (1) the duty to defend; and (2) the duty to indemnify. Porterfield v. Audubon Indem. Co., 856 So.2d 789, 791-92 (Ala.2002).

“It is well settled ‘that [an] insurer’s duty to defend is more extensive than its duty to [indemnify].’ United States Fid. & Guar. Co. v. Armstrong, 479 So.2d 1164, 1168 (Ala.1985) (citations omitted). Whether an insurance company owes its insured a duty to provide a defense in proceedings instituted against the insured is determined primarily by the allegations contained in the complaint. Id. at 1168. If the allegations of the injured party’s complaint show an accident or an occurrence within the coverage of the policy, then the insurer is obligated to defend, regardless of the ultimate liability of the insured. Ladner & Co. v. Southern Guar. Ins. Co., 347 So.2d 100, 102 (Ala.1977) (citing Goldberg v. Lumber Mut. Cas. Ins. Co., 297 N.Y. 148, 77 N.E.2d 131 (1948)). However, ‘[t]his Court ... has rejected the argument that the insurer’s obligation to defend must be determined solely from the facts alleged in the complaint in the action against the insured.’ Ladner, 347 So.2d at 103. In Pacific Indemnity Co. v. Run-A-Ford Co., 276 Ala. 311, 161 So.2d 789 (1964), this Court explained:
“ We are of opinion that in deciding whether a complaint alleges such injury, the court is not limited to the bare allegations of the complaint in the action against insured but may also look to facts which may be proved by admissible evidence.... ’
276 Ala. at 318, 161 So.2d at 795; see Ladner, 347 So.2d at 103 (quoting this language). ‘[I]f there is any uncertainty as to whether the complaint alleges facts that would invoke the duty to defend, the insurer must investigate the facts surrounding the incident that gave rise to the complaint in order to determine whether it has a duty to defend the insured.’ Blackburn v. Fidelity & Deposit Co. of Maryland, 667 So.2d 661, 668 (Ala.1995) (citing United States Fid. & Guar. Co. v. Armstrong, 479 So.2d 1164 (Ala.1985)) (other citations omitted). When a complaint alleges both acts covered under the policy and acts not covered, the insurer is under a duty to at least defend the allegations covered by the policy. Blackburn, 667 So.2d at 670 (citing Tapscott v. Allstate Ins. Co., 526 So.2d 570, 574 (Ala.1988)).”

Acceptance Ins. Co. v. Brown, 832 So.2d 1, 14 (Ala.2001) (emphasis added). The allegations of the allegedly injured person’s complaint against the insured in Acceptance Ins. Co. -were ambiguous in that they could be construed either to allege, or not to allege, a covered claim. In the insured’s action against the insurer, Acceptance Ins. Co. therefore held that the evidence of record tending to prove that the allegedly injured person’s claim was covered justified the trial court in its submitting to the jury the insured’s contention that the claim was covered.

In three cases, Pacific Indemnity Co. v. Run-A-Ford Co., 276 Ala. 311, 161 So.2d 789 (1964); Ladner & Co. v. Southern Guaranty Ins. Co., 347 So.2d 100 (Ala.1977); and Tapscott v. Allstate Ins. Co., 526 So.2d 570 (Ala.1988), this Court held that, if the complaint against the insured does not, on its face, allege a covered accident or occurrence, “other facts which did exist but were not alleged could be taken into consideration” to establish coverage because the policy “should be liberally construed in favor of the insured.” Ladner, 347 So.2d at 103. However, this Court has never held that, even though the allegations of a complaint do allege a covered accident or occurrence, the courts may consider evidence outside the allegations to disestablish the duty to defend. In Run-A-Ford, this Court explained why it concluded that the courts can consider admissible evidence outside the injured person’s complaint for the benefit of the insured if the allegedly injured person’s complaint does not allege a covered accident or occurrence:

“That conclusion is reached by the following reasoning. The question is: Is insurer’s agreement, to defend any suit ‘alleging such injury,’ to be construed as an agreement to defend only a suit in which the complaint, in itself and without the aid of other facts, contains alie-gations sufficient to establish the conclusion that the injury alleged is covered by the policy; or, is the agreement to be construed as one to defend a suit in which the complaint alleges an injury which is within the policy coverage but can be shown to be within the coverage only when facts, which do exist but are not alleged in the complaint, are taken into consideration? The policy does not provide which construction shall be adopted. Under the rule that the policy must be liberally construed in favor of the insured, the latter construction must be adopted. Under the latter construction, facts not alleged in the complaint may be considered.”

276 Ala. at 318, 161 So.2d at 795 (emphasis added); accord Ladner, 347 So.2d at 103.

Accordingly, we will summarize the law for determining the existence or nonexistence of an insurer’s duty to defend. If the allegedly injured person’s complaint against the insured alleges a covered accident or occurrence, then the insurer owes the duty to defend even though the evidence may eventually prove that the gravamen of the complaint was not a covered accident or occurrence. If the complaint against the insured does not, on its face, allege a covered accident or occurrence, but the evidence proves one, then the insurer likewise owes the duty to defend. The insurer owes no duty to defend only if neither does the complaint against the insured allege a covered accident or occurrence nor does the evidence in the litigation between insurer and insured prove a covered accident or occurrence. Acceptance Ins. Co., supra; Run-A-Ford, supra; Ladner, supra. If the allegedly injured person’s complaint against the insured alleges or the evidence proves not only claims based on a covered accident or occurrence but also claims not based on a covered accident or occurrence, the insurer owes a duty to defend at least the claims based on a covered accident or occurrence. E.g. Acceptance Ins. Co., supra; Porterfield, supra; Townsend Ford, Inc. v. Auto-Owners Ins. Co., 656 So.2d 360 (Ala.1995).

In alleging innocent misrepresentation and reckless misrepresentation, an allegedly injured person alleges an “occurrence” with damages not “expected or intended from the standpoint of the insured,” and the insurer owes a duty to defend its insured against such claims. Universal Underwriters Ins. Co. v. Youngblood, 549 So.2d 76 (Ala.1989); American States Ins. Co. v. Cooper, 518 So.2d 708 (Ala.1987).

“[Suppression of a material fact is not necessarily an intentional tort .... ” Townsend Ford, 656 So.2d at 364. Consequently, in alleging suppression, an allegedly injured person alleges an “occurrence” with damages not “expected or intended from the standpoint of the insured.” Id.

In Ex parte Master Boat Builders, Inc., 779 So.2d 192 (Ala.2000), this Court, in deciding petitions for writs of mandamus brought by Tanner and the other partners sued in Mitchell’s lawsuit, held that, although Mitchell’s separate claims against Tanner for accounting malpractice arose out of Tanner and Mitchell’s relationship of accountant and client, Mitchell’s claims for suppression; conversion; breach of fiduciary duty; and innocent, reckless, and intentional misrepresentation arose out of the partner relationship existing between Mitchell and Tanner. Id. at 196-98. Mitchell’s complaint as last amended alleged the same partnership relationship claims against Tanner & Co. in its capacity as a partner in MASCO I and MASCO IV and against Tanner in his capacity as “owner and principal” of Tanner & Co. Although State Farm argues in brief to us that the holdings of Master Boat Builders do not foreclose the conclusion that the claims arising out of the partner relationship nonetheless “relate to rendering or failing to render professional [accounting] services” (appellee’s brief p. 6), State Farm does not argue that it is not bound by the holdings of Master Boat Builders.

Despite Mitchell’s testimony that he had always “felt” or “contended” that Tanner had injured him intentionally rather than accidentally, Mitchell alleged claims for innocent misrepresentation, reckless misrepresentation, and suppression, which obliged State Farm to defend Tanner and Tanner & Co. against at least those claims. Acceptance Ins. Co., supra; Porterfield, supra; Toumsend Ford, supra. Therefore, we reverse the summary judgment insofar as it declares that State Farm did not owe a duty to defend Tanner and Tanner & Co. against Mitchell’s claims for innocent misrepresentation, reckless misrepresentation, and suppression. We affirm the summary judgment insofar as it declares that State Farm did not owe a duty to defend Tanner or Tanner & Co. against Mitchell’s claims for intentional torts and accounting malpractice.

The procedural posture of the cross-motions for summary judgment in this case is like the procedural posture of the cross-motions in Lloyd Noland Foundation v. City of Fairfield Healthcare Authority, 837 So.2d 253 (Ala.2002), which held that an “appeal from a pretrial final judgment disposing of all claims in the case (as distinguished from a Rule 54(b) summary judgment disposing of fewer than all claims) entitles the [appellant], for purposes of our review, to raise issues based upon the trial court’s ... denial of [the appellant’s] summary-judgment motions. See Ala. R.App. P. 4(a)(1).” Id. at 263. Accordingly, on remand, we direct the trial court to grant the cross-motion of Tanner and Tanner & Co. for summary judgment to the extent that it seeks a declaration that State Farm owed Tanner and Tanner & Co. a defense against Mitchell’s claims for innocent misrepresentation, reckless misrepresentation, and suppression and to deny the cross-motion insofar as it seeks a declaration that State Farm owed a duty to defend Mitchell’s claims for intentional torts and accounting malpractice.

Duty to Indemnify

“Although the bare allegations of the complaint may trigger an insurer’s duty to defend its insureds, ‘[t]he duty to pay ... must be analyzed separately.’ ” Porterfield, 856 So.2d at 792 (quoting United States Fid. & Guar. Co. v. Armstrong, 479 So.2d 1164, 1167 (Ala.1985)). The insured’s conduct rather than the allegedly injured person’s allegations determine whether the insurer has a duty to indemnify. City Realty, Inc. v. Continental Cas. Co., 623 So.2d 1039, 1047 (Ala.1993); see Calhoun County Economic Dev. Council v. National Sec. Fire & Cas. Co., 808 So.2d 24 (Ala.2001).

In Alabama Farm Bureau Mutual Casualty Insurance Co. v. Dyer, 454 So.2d 921 (Ala.1984), this Court held that a purely subjective standard governs the determination of what constitutes an “occurrence” causing bodily injury or property damage that is not “expected or intended from the standpoint of the insured”:

“Because the presumption in tort and criminal law that a person intends the natural and probable consequences of his or her intentional acts has no application to the interpretation of the terms used in the 'expected or intended from the standpoint of the insured’ policy exclusion, the policy term, ‘expected or intended injury,’ cannot be equated with ‘foreseeable injury.’ See Smith v. North River Ins. Co., 360 So.2d 313, 315 (Ala.1978) (question of intent in personal injury action not the same as question of ‘expected or intended’ injury in policy exclusion).
“... [A] purely subjective standard governs the determination of whether the insured Wayne Dyer either expected or intended to inflict bodily injury upon his brother, William. Under this subjective test, an injury is ‘intended from the standpoint of the insured’ if the insured possessed the specific intent to cause bodily injury to another, whereas an injury is ‘expected from the standpoint of the insured’ if the insured subjectively possessed a high degree of certainty that bodily injury to another would result from his or her act. See Continental Western Ins. Co. v. Toal, 309 Minn. 169, 244 N.W.2d 121, 125 (1976), for a thorough discussion of the proper standard used to interpret this policy exclusion.”

Id. at 925. Accord Calhoun County Econ. Dev. Council, 808 So.2d at 26; Jackson v. State Farm Fire & Cas. Co., 661 So.2d 232, 233 (Ala.1995); Haisten v. Audubon Indem. Co., 642 So.2d 404, 406-07 (Ala.1994); and Capital Alliance Ins. Co. v. Thorough-Clean, Inc., 639 So.2d 1349, 1351-52 (Ala.1994).

“[T]he question of whether an injury which the insured inflicts upon another person is ‘expected or intended from the standpoint of the insured’ is a question of fact for the jury or judge.” Dyer, 454 So.2d at 924.

In the present case, the trial court erred in entering summary judgment for State Farm on the duty to indemnify. Mitchell’s testimony that he “felt” or “contended” that Tanner had wronged him intentionally is not relevant to the duty to indemnify, which is determined by Tanner’s actual subjective state of mind rather than by Mitchell’s contentions. City Realty, Inc., supra. Whether State Farm owes a duty to indemnify Tanner and Tanner & Co. depends on the fact-finder’s assessment of the circumstantial evidence and Tanner’s testimony concerning whether Tanner either possessed a specific intent to cause Mitchell bodily injury or subjectively possessed a high degree of certainty that his actions would cause Mitchell bodily injury. Calhoun County Econ. Dev. Council, supra; City Realty, Inc., supra.

Therefore, we reverse the summary judgment insofar as it declares that State Farm does not owe a duty to indemnify Tanner and Tanner & Co. for Mitchell’s claims for innocent misrepresentation, reckless misrepresentation, and suppression. We affirm the summary judgment insofar as it declares that State Farm does not owe a duty to indemnify Tanner or Tanner & Co. for Mitchell’s claims for intentional torts and accounting malpractice. We remand for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH DIRECTIONS.

HOUSTON, SEE, LYONS, HARWOOD, and WOODALL, JJ., concur.

MOORE, C.J., and BROWN and STUART, JJ., concur in the result.

      . Although State Farm initially sought declaratory relief concerning three policies, the parties subsequently stipulated that the only policy at issue in this declaratory judgment action is State Farm’s policy number 93-33-5214-7 issued to Tanner & Co., P.C., as the named insured.

      . In moving for summary judgment, State Farm did not challenge the status of either Tanner & Co. or Tanner as an insured as defined by the policy within the context of Mitchell's lawsuit. Had State Farm asserted such a challenge, it would have been unavailing insofar as Mitchell’s complaint as last amended expressly identified and sued Tanner & Co. itself as a partner in MASCO I and MASCO IV and ascribed Tanner’s allegedly tortious partnership participation to him in his capacity as the "owner and principal” of Tanner & Co. That is, the definition of insured., already quoted, in the policy includes both Tanner and Tanner & Co. to the extent of these allegations.

      . State Farm did not base its motion for summary judgment on a challenge to the status of either Tanner & Co. or Tanner as an insured as defined by the policy within the context of Mitchell’s lawsuit. The motion does not assert that Tanner & Co. was not a partner of MASCO I and MASCO IV. Indeed, the motion affirmatively recites:
      "Mitchell says that he entered into partnership agreements in 1984 with Elton Tanner, Tanner & Co. and others with regard to two boats (p. 12,14). The partnerships were called MASCO I and MASCO IV (p. 14).”

        Likewise, the summaiy-judgment motion does not assert that Tanner's allegedly tortious participation in these partnerships was not among his duties as an officer of Tanner & Co.
      "[A] party seeking a summary judgment always bears the initial responsibility of informing the [trial] court of the basis of its motion. Rector v. Better Houses, Inc., 820 So.2d 75, 80 (Ala.2001) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). When a motion for summary judgment is based on a failure of the nonmovant's evidence, the moving party must indicate where the non-movant's case suffers an evidentiary failure. Id."

        Kennedy v. Western Sizzlin Corp., 857 So.2d 71, 78 (Ala.2003)(internal quotation marks omitted; alterations original). If a summary-judgment motion does not inform the trial court (and the nonmovant) of a failure of the nonmovant’s evidence on a fact or issue, no burden shifts to the nonmovant to present substantial evidence on that fact or issue. Rector, supra, and Kennedy, supra. Therefore, summary judgment for a failure of proof not asserted by the motion for summary judgment is inappropriate. Id. Thus, in the case before us, no burden shifted to Tanner or Tanner & Co. to present substantial evidence that Tanner's allegedly tortious participation in MAS-CO I and MASCO IV was a duty he owed as an officer of Tanner & Co., or that Tanner & Co. itself was a partner in these partnerships, or that either Tanner or Tanner & Co. was otherwise an insured within the definition of the policy within the context of Mitchell's lawsuit. Accordingly, the summary judgment against Tanner and Tanner & Co. cannot be justified or affirmed on a rationale that they were not such insureds.


author: BROWN, Justice.

text:
    Ronald Michael CUNNINGHAM v. Helen C. LAVOIE, as personal representative of the estate of Lucy B. Cunningham, deceased.
    1012232.
    Supreme Court of Alabama.
    Aug. 8, 2003.

      Jay M. Ross of Ross & Jordan, P.C., Mobile, for appellant.
    Thomas H. Benton, Jr., of McFadden, Lyon & Rouse, L.L.C., Mobile, for appel-lee.
   BROWN, Justice.

Ronald Michael Cunningham appeals from the dismissal by the Mobile County Probate Court of his notice of claim filed against the estate of his mother, Lucy B. Cunningham. We reverse and remand.

Facts

Lucy B. Cunningham died on August 28, 2001. Lucy’s will named Helen C. Lavoie, Lucy’s daughter, as her personal representative. The will also called for Lucy’s house to be sold immediately and thfe proceeds distributed equally among Lucy’s five children, including Ronald and Helen. However, the will also gave Ronald, who was living with Lucy in her house before she died, the option to “continue to reside in [the house] and make the payments due on the mortgage for the house and utilities (not to be reimbursed) for a period not to exceed nine months or until the house is sold.”

On September 25, 2001, Helen filed a petition in the Mobile County Probate Court to probate the will. Letters testamentary were issued to Helen on November 6, 2001. The record indicates that Ronald exercised his option under the will to remain in Lucy’s house.

On February 19, 2002, Helen filed a motion in the probate court seeking possession of the house, alleging that Ronald had failed to make any mortgage payments on the house since Lucy’s death. The trial court found that Ronald had failed to make the mortgage payments and had failed to cooperate with Helen in her attempt to sell the house. The trial court granted Helen’s motion and ordered Ronald to deliver possession of the premises to Helen.

On May 3, 2.002, Ronald’s attorney, on Ronald’s behalf, filed a notice of claim against Lucy’s estate in the “judicial division” of the Mobile County Probate Court. No filing fee was paid at that time. The notice of claim alleged that Lucy’s estate owed Ronald $45,500 for services.he performed in caring for Lucy before her death. Helen received a copy of the notice of claim in the mail “a few days” after it was filed.

On May 28, 2002, Helen filed a motion to dismiss the notice of claim. In her motion, Helen argued that the claim was not filed in accordance with Ala.Code 1975, §§ 43-2-350 and 43-2-352, because, she argued, the claim, which was filed in the “judicial division” rather than the “recording division,” was not filed “in the office of the judge of probate” as required by those Code sections. Additionally, Helen claimed that under § 43-2-350(b) the limitations period in which to file a claim against the estate expired on May 6, 2002. In response, Ronald’s attorney refiled the notice of claim in the “recording division” of the probate court on June 4, 2002. Ronald paid a filing fee with this second filing.

The probate court conducted a hearing on Helen’s motion to dismiss the notice of claim, and on July 15, 2002, the court issued an order dismissing Ronald’s claim against the estate. The order stated, in part:

“3. Ronald’s legal counsel filed Ronald’s Notice of Claim on May 3, 2002 in the Judicial Division of the Court. Said Notice of Claim bears the Court’s filing stamp confirming the filing in the Court’s Judicial Division. A copy of the Notice of Claim was mailed to the Personal Representative’s legal counsel, which said legal counsel received on May 5 or May 6, 2002.
“4. The Notice of Claim was filed by Ronald’s legal counsel in the Recording Division of the Court on June 4, 2002. At the time of the second filing, Ronald’s legal counsel paid the sum of $4.50 to file the Notice of Claim.
“6. Ronald argues that Alabama law does not specify which division of the Court claims must be filed in and filing in the incorrect division is not fatal as to the viability of the claim.
“7. Ala.Code [1975, § ] 43-2-350(b)[,] provides in pertinent part as follows:
“ ‘All claims against the estate of a decedent ... whether due or to become due, must be presented within six months after the grant of letters, ... and if not presented within that time, they are forever barred and the payment or allowance thereof is prohibited. Presentment must be made by filing a verified claim or verified statement thereof in the office of the judge of probate of the county in which the letters are granted.’
“8. Ala.Code [1975, § ]43-2-352[,] provides in pertinent part as follows:
“ ‘The presentation must be made by filing a verified claim, or a verified statement thereof, in the office of the judge of probate in which letters are granted, and the same must be docketed with a note of the date of such presentation; and, if required, a statement must be given by such judge, showing the date of presentation.... All claims not presented within six months from the granting of letters testamentary or letters of administration shall be forever barred, and the payment or allowance thereof is prohibited.’
“9. The general practice and procedure in Mobile County for many years has been that estate claims are filed in the Court’s Recording Division. Further, a fee is required to be paid at the time of filing. Ala. Code [1975, § ]12— 19 — 90(b)(20) and (21). See also, [Act No. 98-646, Ala. Acts 1998]. If the filing fee is not paid, the claim is not considered filed. The Court’s Judicial Division intake desk is not set up to accept money. If the filing fee had been tendered by Ronald’s legal counsel with the Notice of Claim at the time it was presented to the Judicial Division, it would have been referred to the Court’s Recording Division for processing.
“10. Once an estate claim is properly filed, it appears of record in the Court’s public records.
“11. As noted above, the filing fee for Ronald’s claim was not paid until June 4, 2002, when the claim was filed in the Recording Division of the Court. The Court is of the opinion, and therefore concludes, that the key point in determining the filing date is ascertaining the moment all of the requirements had been met for the filing of Ronald’s claim.
“12. As noted above, a filing fee is required at the time an estate claim is filed of record. No fee was paid at the time the Notice of Claim was submitted to the Judicial Division of the Court. The Court is of the opinion, and therefore concludes, that inasmuch as the filing fee was not paid in the instant cause until June 4, 2002, June 4, 2002 was the date Ronald’s claim is considered filed.
“13. Inasmuch as June 4, 2002, is outside the six-month period for filing claims in the estate proceeding, the Court is of the opinion, and therefore concludes that Ronald’s claim was not timely filed.
“14. The Court is of the opinion, and therefore concludes, that the Personal Representative’s Motion To Dismiss Notice of Claim is proper and due to be granted.”

Ronald appeals.

Discussion

Ronald claims that he substantially complied with Ala.Code 1975, §§ 43-2-350 and 43-2-352, because, he argues, he filed the notice of claim in the “office of the judge of probate” from which the letters testamentary were granted. Those Code sections, Ronald argues, do not specify that the claim must be filed in a specific division of the probate court. Thus, Ronald concludes, his claim against the estate was properly filed on May 3,- 2002. We agree.

Sections 43-2-350(b) and 43-2-352, Ala.Code 1975, require that claims against an estate must be must be filed “in the office of the judge of probate.” Those Code sections do not specify that such claims be filed in a particular division of the office of the judge of probate. The probate court’s order clearly demonstrates that Ronald’s attorney filed the notice of claim in the judicial division of the probate court on May 3, 2002. Helen was granted letters testamentary on November 6, 2001. May 3, 2002, is within six months of the date on which Helen was granted letters testamentary. Therefore, Ronald’s notice of claim was timely filed in the probate court.

Helen claims that the probate court correctly dismissed Ronald’s notice of claim because the required filing fee was not paid until June 4, 2002, when Ronald’s attorney refiled the notice of claim in the recording division of the probate court. Regarding this argument, the probate court stated in its final order:

“If the filing fee is not paid, the claim is not considered filed....
“11. As noted above, the filing fee for Ronald’s claim was not paid until June 4, 2002, when the claim was filed in the Recording Division of the Court. The Court is of the opinion, and therefore concludes, that the key point in determining the filing date is ascertaining the moment all of the requirements had been met for the filing of Ronald’s claim.”

In De-Gas, Inc. v. Midland Resources, 470 So.2d 1218 (Ala.1985), the plaintiffs filed an action in the Jefferson Circuit Court, but they did not pay the required filing fee until after the statutory limitations period had expired. 470 So.2d at 1219. This Court noted that Ala.Code 1975, § 12-19-70(a), provides:

“ ‘(a) There shall be a consolidated civil filing fee, known as a docket fee, collected from a plaintiff at the time a complaint is filed in circuit court or in district court.
“ ‘(b) The docket fee may be waived initially and taxed as costs at the conclusion of the case if the court finds that payment of the fee will constitute a substantial hardship. A verified statement of substantial hardship, signed by the plaintiff and approved by the court, shall be filed with the clerk of court.’ ”

470 So.2d at 1220 (emphasis added in DeGas). This Court further stated:

“The use of the term ‘shall’ in this provision makes the payment of the filing fee mandatory. See Prince v. Hunter, 388 So.2d 546, 547 (Ala.1980). It was the obvious intent of the legislature to require that either the payment of this fee or a court-approved verified statement of substantial hardship accompany the complaint at the time of filing.”

Id.

Alabama Code 1975, § 12-19-90, specifies the fees to be paid for services provided by probate courts. That Code section provides:

“(a) The following fees for service provided by the probate offices shall be charged and paid into the county treasury or to the judge of probate as may be authorized or required by law:
“(b) Fees for services other than those specified in subsection (a) shall be:
“(20) Each certificate without seal ... 3.00.
“(21) Filing and docketing each claim ... 3.00.

See also Act No. 98-646, Ala. Acts 1998 (providing for an additional filing fee for documents filed with the judge of probate for Mobile County). While § 12-19-90 states that a fee “shall” be paid, it does not, like § 12-19-70, require that the fee be collected from the claimant at the time the claim is filed. Additionally, neither § 43-2-350(b) nor § 43-2-352 requires that a fee be paid in order to file a claim. Helen does not dispute that she received a copy of the notice of claim filed on May 3, 2002. We cannot agree with the probate court’s conclusion that a claim is not considered filed for purposes of the limitations period until the filing fee is paid. Therefore, we reverse its judgment and remand this case for proceedings consistent with this opinion.

REVERSED AND REMANDED.

MOORE, C.J., and HOUSTON, SEE, LYONS, JOHNSTONE, HARWOOD, WOODALL, and STUART, JJ., concur.

      . According to the record, the Mobile County Probate Court maintains two "divisions” — the "judicial division” and the "recording division.” The specific nature of each division is not explained in the briefs or in the record.


text:
    Robert C. GILL v. Bob BURRELL et al.
    1021130.
    Supreme Court of Alabama.
    Aug. 29, 2003.

      Robert C. Gill, pro se.
    William H. Pryor, Jr., atty. gen., and Ellen Leonard, asst. atty. gen., for appel-lee Bob Burrell.
    Kelly Cain Bachuss, asst, city atty., City of Decatur, for appellees Keith Brown and Steven Campbell.
   JOHNSTONE, Justice.

By a “Certificate of Transfer” the Court of Criminal Appeals has transmitted the record and briefs in this case to us. We return these materials to that court, but we supply an explanation that will be helpful to that court as well as the Court of Civil Appeals.

The “Certificate of Transfer” reads:

“The appellant in the above-referenced cause is appealing the trial court’s order dismissing his civil claim pursuant to § 6-5-260, Ala.Code 1975, wherein the appellant sought return of $2,700 which he alleged was taken from his person incident to two separate arrests in 1990. Because this is an appeal from the dismissal of a civil claim, the appeal was originally transmitted to the Court of Civil Appeals. However, on January 28, 2003, the Court of Civil Appeals transferred the appeal to this Court for lack of subject-matter jurisdiction. Although the Court of Civil Appeals stated no basis for this determination in its transfer notice, this Court believes that this determination (lack of subject-matter jurisdiction) was based upon the Court of Civil Appeals’ misinterpretation of the Supreme Court’s holding in State v. Baker, 703 So.2d 333 (Ala.1997).
“In Baker, the Court of Civil Appeals had granted Baker’s petition for a writ of mandamus directing a circuit judge to order law enforcement officials to turn over money that was allegedly seized in a lawful search and later used as evidence in a criminal trial. Thereafter, the Attorney General moved the Court of Civil Appeals for a stay and requested an opportunity to respond to Baker’s petition, which request was granted. The Attorney General then responded by asserting that the Court of Civil Appeals lacked jurisdiction to issue the writ in this case. After the Court of Civil Appeals rejected the State’s response, the State then petitioned the Supreme Court to direct the Court of Civil Appeals to rescind its writ. In granting the State’s petition, the Supreme Court distinguished the facts in Baker from the facts in Adams v. State ex rel. Whetstone, 598 So.2d 967 (Ala.Civ.App.1992), the case upon which the Court of Civil Appeals relied as authority for granting Baker’s petition. In distinguishing these cases, the Supreme Court noted that the action in Adams arose out of a civil forfeiture action, but noted that no civil forfeiture action had been initiated in Baker.
“This Court notes that the action in this appeal, like the action in Adams, arose out of a civil proceeding, and because this Court has no appellate jurisdiction over conversion actions initiated pursuant to § 6-5-260, Ala.Code 1975, the Court of Criminal Appeals Orders that this appeal be and the same is hereby Transferred to the Supreme Court for that court to determine which appellate court, if any, does in fact have jurisdiction of this appeal.”

On the one hand, the particular jurisdictional analysis contained in the “Certificate of Transfer” is correct. State v. Baker, 703 So.2d 333 (Ala.1997), is distinguishable from the instant case. The reason the Court of Civil Appeals had no subject matter jurisdiction in Baker is that no party in Baker had filed any civil action, see Rules 2 and 3, Ala. R. Civ. P., and Baker, the party seeking relief, had filed only a petition in the Court of Civil Appeals for a writ of mandamus directing a judge who had tried a robbery case to order law enforcement officials to relinquish to Baker certain cash that had been seized in a search and introduced as evidence in the robbery trial, a matter within the exclusive appellate jurisdiction of the Court of Criminal Appeals, see §§ 12-3-9 and 12-3-11, Ala.Code 1975. In the instant case, the plaintiff-appellant Robert C. Gill has filed a civil action to recover monies, or compensation for monies, that have never been introduced into evidence in any criminal proceeding. Thus, if any appellate court has appellate jurisdiction of the instant case (and we will discuss this qualification), the Court of Civil Appeals is the one.

On the other hand, the Court of Criminal Appeals should not have purported to transfer this case to us. The only provisions in our law for the transfer of cases from the courts of appeals to this Court are §§ 12-1-4 and 12-3-14, Ala. Code 1975. Section 12-1-4 provides:

“When any case is submitted to the Supreme Court which should have gone to one of the courts of appeals or is submitted to one court of appeals when it should have gone to the other, it must not be dismissed but shall be transferred to the proper court; and, when any case is submitted to a court of appeals which should have gone to the Supreme Court, it shall be transferred to the Supreme Court.” (Emphasis added.)

Section 12-3-14 provides:

‘When it is deemed advisable or necessary for the proper dispatch of the business of the Alabama Court of Criminal Appeals, the Chief Justice of the Supreme Court, with the advice of the Supreme Court and the presiding judge of the Alabama Court of Criminal Appeals, may in writing designate any case in the Court of Criminal Appeals to be transferred to the Supreme Court for hearing and final determination by that court. Such written designation shall be entered upon the minutes of each of the courts, and the Clerk of the Court of Criminal Appeals shall deliver to the Clerk of the Supreme Court the transcript of the record and all other papers in the cases so designated, together with copies of any orders that may be made in any such cases by the Court of Criminal Appeals. Upon the making or entering of such designation, the jurisdiction and control of the Court of Criminal Appeals over the designated case shall cease and terminate.” (Emphasis added.)

Neither the instant case nor its procedural posture meets the criterion of § 12-1-4 or the criteria of § 12-3-14 for transfer to the Supreme Court. This Court has no original appellate jurisdiction of this case, see §§ 12-3-10 and 12-2-7(1), Ala.Code 1975, as § 12-1-4 would require; and the Chief Justice has not, with the requisite advice, designated this case for “final determination” by this Court as § 12-3-14 contemplates. Rather, under these circumstances, § 12-1-1 authorizes only a re-transfer to the Court of Civil Appeals. Thus, we cannot accept this case, and we must return the record and briefs to the Court of Criminal Appeals.

When the case finally returns to the Court of Civil Appeals, as we anticipate it will, that court may want first to determine whether the amount in controversy met the minimum threshold for the subject matter jurisdiction of the circuit court, § 12-11-30, Ala. Code 1975, where Gill filed this civil action. Unless the circuit court had such subject matter jurisdiction, its power was limited to transferring the case to the district court, see § 12-11-9, Ala.Code 1975, and the power of the Court of Civil Appeals would be limited to addressing this jurisdictional defect in the order by the circuit court, see Ex parte Smith, 438 So.2d 766, 768 (Ala.1983) (holding that “[ljack of subject matter jurisdiction may not be waived by the parties and it is the duty of an appellate court to consider lack of subject matter jurisdiction ex mero motu”). Whether the appeal should be so circumscribed, however, should be decided by an appellate court which at least otherwise has appellate jurisdiction, as we do not.

We therefore order that the record and briefs be returned to the Court of Criminal Appeals.

CASE RETURNED TO COURT OF CRIMINAL APPEALS.

HOUSTON, SEE, LYONS, BROWN, HARWOOD, and STUART, JJ., concur.

WOODALL, J., concurs in the result.