author: CRAWLEY, Judge. YATES, Presiding Judge, MURDOCK, Judge,

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. Nicholas Shane CARLTON.
    2991014.
    Court of Civil Appeals of Alabama.
    May 11, 2001.
    Rehearing Denied June 22, 2001.

      Ronald G. Davenport and R. Austin Huf-faker, Jr., of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellant.
    Richard A. Lawrence, Montgomery, for appellee.
   CRAWLEY, Judge.

This case requires us to decide an issue of first impression in Alabama: whether a worker can receive uninsured-motorist (“UM”) benefits under his family automobile liability policy when he is injured on the job by a negligent coworker who is immune to suit because of the exclusivity provisions of the Workers’ Compensation Act (“the Act”).

In October 1998, Nicholas Shane Carlton was injured in a motor-vehicle accident while acting within the scope of his employment with Montgomery Landscaping Contractors, Inc. Carlton was a passenger in a vehicle owned by his employer and driven by a coemployee. The coemployee-driver negligently turned in front of an oncoming vehicle. Carlton received workers’ compensation benefits. He also sought benefits under a State Farm automobile policy that provided UM coverage.

State Farm refused to pay, insisting that Carlton could not fulfill the condition precedent to recovery of UM benefits — -that he be “legally entitled to recover” from the negligent driver — because, State Farm says, Carlton was barred by the exclusivity and coemployee-immunity provisions of the Act from suing a coemployee for negligence. See §§ 25-5-52; 25-5-53; 25-5-11, Ala.Code 1975.

State Farm filed a declaratory-judgment action, seeking a determination that it was not liable under the UM provision of an automobile policy issued to Carlton’s mother and including Carlton as an insured. Before he was served in State Farm’s action, Carlton sued State Farm to collect the UM benefits of his mother’s policy. In State Farm’s declaratory-judgment action, Carlton answered and counterclaimed for the proceeds of the policy. The two cases were consolidated and the facts were stipulated by the parties. Each party moved for a summary judgment, with a supporting brief. The circuit court entered a judgment in favor of Carlton for $50,000, the limits of his mother’s UM coverage. State Farm appealed to this court.

Section 32-7-23, Ala.Code 1975, mandates that every insurer in this state offer UM coverage in its automobile liability insurance policies, “for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles.” (Emphasis added.) The State Farm policy that insures Carlton echoes the words of the UM statute: “We will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle.” (Emphasis added.) Carlton is barred by § 25-5-11, Ala.Code 1975, from suing his negligent coworker. Therefore, State Farm argues, it does not owe Carlton any UM benefits because Carlton is not “legally entitled to recover” from the negligent coworker.

At least 19 jurisdictions have considered the issue presented here, and 17 have concluded that an injured employee has no cause of action against his own UM insurer for on-the-job injuries arising out of the negligence of a fellow employee., See gen erally John P. Ludington, Annot., Automobile Uninsured Motorist Coverage: “Legally Entitled to Recover” Clause as Barring Claim Compensable Under Workers’ Compensation Statute, 82 A.L.R.4th 1096 (1990). Carlton argues that a line of cases decided by our supreme court would allow the negligent coworker — precisely because he is not amenable to suit — to be deemed the operator of an “uninsured motor vehicle,” and would, therefore, require State Farm to pay Carlton the UM proceeds of his mother’s automobile policy. See Hogan v. State Farm Mut. Auto. Ins. Co., 730 So.2d 1157 (Ala.1998) (holding that a driver not amenable to suit because of the Guest Statute is deemed an “uninsured motorist”), overruled on other grounds by Williamson v. Indianapolis Life Ins. Co., 741 So.2d 1057 (Ala.1999); State Farm Mut. Auto. Ins. Co. v. Jeffers, 686 So.2d 248 (Ala.1996) (holding that a driver with governmental immunity is deemed an “uninsured motorist”); State Farm Auto. Ins. Co. v. Baldwin, 470 So.2d 1230 (Ala.1985) (same). All three cases— Hogan, Jeffers, and Baldwin — were decided in response to certified questions from federal courts.

In Baldwin, the first of the trio of cases, a United States Army sergeant at Fort Rucker was injured when an uninsured Government vehicle, driven by an employee of the United States Government, collided with the sergeant’s motorcycle. It was undisputed that the civilian’s negligence caused the accident. Nevertheless, the sergeant had no recourse against the civilian or the Government because of the Feres doctrine. See Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950) (interpreting the Federal Tort Claims Act, 28 U.S.C. § 1346, to bar actions against the Government or its employees for injuries incurred by a member of the military arising out of and in the course of his military service).

First, the court reiterated the legislative policy underlying the UM statute — to provide coverage “to protect those financially and ethically responsible enough to obtain automobile liability insurance from injuries caused by those not so responsible.” Baldwin, 470 So.2d at 1233. The court stated that the UM statute is read into every insurance policy contract and, unless the statute itself restricts coverage, an individual policy may not restrict UM coverage.

Next, the court discussed an earlier decision of this court in State Farm Mutual Automobile Insurance Co. v. Griffin, 51 Ala.App. 426, 286 So.2d 302 (1973). Griffin had held that an insured was entitled to UM benefits if he could establish fault on the part of the uninsured motorist and damage, subject to any available policy defenses the insurer might have, as well as “substantive defenses that would have been available to the uninsured motorist.” Griffin, 51 Ala.App. at 431, 286 So.2d at 306.

Acknowledging that, under Griffin, State Farm could assert the Feres-doctrine defense to deny liability to its insured, the supreme court stated the issue as follows: “[T]his court must decide if the legislative policy of the uninsured motorist statute would allow State Farm to assert that defense and deny the otherwise valid claim of the Baldwins.” Baldwin, 470 So.2d at 1234. The court concluded that the policy underlying the UM statute — to protect a person who is injured by a financially irresponsible motorist — would not allow the insurer to assert the defense and that the insured could recover UM benefits from State Farm.

The second case in the trio, Jeffers, also involved a driver who was immune from suit. In that case, Jeffers was injured when her vehicle collided with a vehicle being driven by a deputy sheriff. Unlike the vehicle in Baldwin, the vehicle in Jef-fers was insured, but the deputy sheriff had substantive immunity. The court framed the issue as follows:

“[WJhether, under § 32 — 7—23(b), Ala. Code 1975, an insured motorist can be deemed to be an ‘uninsured motorist’ when the injured party’s claim against the insured motorist is barred by the doctrine of substantive immunity.”

The court determined that the only material distinction between Jeffers and Baldivin was the fact that the vehicle in Jeffers was insured but the vehicle in Baldwin was uninsured.

Once again referring to the purpose underlying the UM statute, the court stated:

“ ‘[T]he design of the statute is to protect [an] injured [person] who can prove that the accident did in fact occur and that he was injured as a proximate result of the negligence of [another] motorist who cannot respond in damages for such injuries.’ ”

Jeffers, 686 So.2d at 250 (quoting State Farm Fire & Cas. Co. v. Lambert, 291 Ala. 645, 649, 285 So.2d 917, 919 (1973)).

With one justice dissenting, the court held that “because of the application of substantive immunity, Deputy Anderson, in effect, was not insured.” Jeffers, 686 So.2d at 250. Justice Houston dissented, pointing out that the UM statute addressed “uninsured motor vehicles,” not “uninsured motorists.” He stated:

“The mere fact that a vehicle insured for bodily injury liability is operated by someone who is immune from liability while operating that vehicle cannot make the vehicle an ‘uninsured motor vehicle.’ ”

Jeffers, 686 So.2d at 250 (Houston, J., dissenting).

In Hogan, the most recent of the trio of cases, an injured passenger was unable to recover against a negligent driver with whom she was traveling because the Alabama Guest Statute, § 32-1-2, Ala.Code 1975, allowed recovery only against willful or wanton drivers. Therefore, relying on Baldwin and Jeffers, the passenger sought UM benefits under her own automobile policy. The supreme court held that she was entitled to the proceeds of the policy. Also relying on Baldwin and Jeffers, the court determined that “[t]he passenger, even though she [was] precluded from suing the owner or the operator of the vehicle in which she was a passenger because of the provisions of the guest statute, may nevertheless be ‘legally entitled to recover damages’ under the Uninsured Motorist Statute.” 730 So.2d at 1159.

Justice Lyons dissented, stating that he thought the court, in Baldwin and Jeffers, had misapplied the language of the UM statute. Justice Lyons explained:

“I believe that whether an insured is ‘legally entitled to recover’ depends entirely on the merits of the insured’s claim against a tortfeasor under the laws of the state. However, today’s decision, like Baldwin and Jeffers, has construed the phrase to mean ‘legally entitled to recover but for a defense that does not arise out of any wrongful conduct of the insured,’ a defense such as immunity or an insured’s status as a guest.”

Hogan v. State Farm Mut Auto. Ins. Co., 730 So.2d at 1159 (Lyons, J., dissenting). Justice Lyons’s dissent then predicted the factual scenario we have before us now:

“Under the majority’s expansive rationale, an employee/passenger in a company-owned automobile who is precluded, by § 25-5-11, Ala.Code 1975, from recovering against a fellow employee/driver for negligence or wanton misconduct would be entitled to payment under his or her uninsured motorist coverage.”

730 So.2d at 1159-60 (Lyons, J., dissenting).

This court is bound by the decisions of the Alabama Supreme Court, see § 12-3-16, Ala.Code 1975, and we have no authority to overrule that court’s decisions. The first issue we must decide, therefore, is whether Justice Lyons was correct in his Hogan dissent: is the result in this case dictated by the Baldwin-Jeffers-Hogan line of authority? If not, then on what grounds are Baldwin, Jeffers, and Hogan distinguishable?

State Farm contends that the result here is not dictated by those three cases. It argues that this case is distinguishable from Baldwin, Jeffers, and Hogan on two grounds. First, State Farm claims that Carlton’s right to sue his own insurer for UM benefits is preempted by the exclusive-remedy provisions of §§ 25-5-52 and 25-5-53. Section 25-5-52 provides:

“Except as provided in this chapter, no employee of any employer subject to this chapter, nor the personal representative, surviving spouse, or next of kin of the employee shall have a right to any other method, form, or amount of compensation or damages for an injury or death occasioned by an accident or occupational disease proximately resulting from and while engaged in the actual performance of the duties of his or her employment and from a cause originating in such employment or determination thereof.”

Section 25-5-53 provides:

“The rights and remedies granted in this chapter to an employee shall exclude all other rights and remedies of the employee, his or her personal representative, parent, dependent or next of kin, at common law, by statute, or otherwise on account of injury, loss of services, or death. Except as provided in this chapter, no employer shall be held civilly liable for personal injury to or death of the employer’s employee, for purposes of this chapter, whose injury or death is due to an accident or to an occupational disease while engaged in the service or business of the employer, the cause of which accident or disease originates in the employment. In addition, immunity from civil liability for all causes of action except those based upon willful conduct shall also extend to the workers’ compensation insurance carrier of the employer; to a person, firm, association, trust, fund, or corporation responsible for servicing and payment of workers’ compensation claims for the employer; to an officer, director, agent or employee of the carrier, person, firm, association, trust, fund, or corporation; to a labor union, an official, or representative thereof; to a governmental agency providing occupational safety and health services, or an employee of the agency; and to an officer, director, agent, or employee of the same employer, or his or her personal representative. Nothing in this section shall be construed to relieve a person from criminal prosecution for failure or neglect to perform a duty imposed by law.
“For the purpose of this section, a carrier, person, firm, association, trust, fund, or corporation shall include a company or a governmental agency making a safety inspection on behalf of a self-insured employer or its employees and an officer, director, agent, or employee of the company or a governmental agency.”

(Emphasis added.)

The exclusivity provisions of the Act do not furnish a way to distinguish this case from Baldtvin, Jeffers, and Hogan because Carlton’s action against State Farm is not affected by those provisions. Sections 25-5-52 and 25-5-53 state the exclusive remedy for an injured worker as against his employer, his coemployees, the compensation insurance carrier, and the compensation service companies of the employer. See A. Larson & L. Larson, Larson’s Workers’ Compensation Law, § 100.01 at 100-2 (2000) (“[o]nce a workers’ compensation act has become applicable ..., it affords the exclusive remedy for the injury by the employee or the employee’s dependents against the employer and insurance carrier ”). (Emphasis added.)

Although § 25-5-52 and the first sentence of § 25-5-53 could be argued to imply that the Act provides an injured employee’s sole remedy against the world at large, the history and purpose of the Act indicate that those two statutes provide an injured employee’s sole remedy only against his employer and those entities identified with his employer. The bargain struck in the creation of the workers’ compensation system, or the quid pro quo for the Act, is based on the fact that

“the sacrifices and gains of employees and employers are to some extent put in balance, for, while the employer assumes a new liability without fault, it is relieved of the prospect of large [damages] verdicts.”

Larson, Id. § 100.1 at 100-3. See also Reed v. Brunson, 527 So.2d 102, 107 (Ala. 1988). In Reed, our supreme court reviewed the history of the Act, specifically the development of its coemployee-immunity provisions. The court stated:

“[The first Alabama Workmens’ Compensation Act] took effect on January 1, 1920. Act 245, Acts of Alabama 1919, pages 206-39. As between the employer and employee, in exchange for a guarantee of compensation, based on the type of injury received and the weekly wages of the employee, the employee agreed to allow the employer to be immune from common law liability.”

Reed v. Brunson, 527 So.2d at 107 (emphasis added).

In 1984, the legislature set out its intent with regard to the exclusivity provisions of the Act:

“The intent of the Legislature is to provide complete immunity to employers and limited immunity to officers, directors, agents, servants or employees of the same employer and to the workers’ compensation insurance carrier and compensation service companies of the employer or any officer, director, agent, servant, or employee representative thereof, from civil liability in all causes of action except those based on willful conduct and such immunity is an essential aspect of the workers’ compensation scheme. The Legislature hereby expressly reaffirms its intent, as set forth in section 25-5-53 ... regarding the exclusivity of the rights and remedies of an injured employee, except as provided for herein.”

Section 25-5-14, Ala.Code 1975 (emphasis added). The portions of § 25-5-14 emphasized here indicate the legislature’s intent to provide complete immunity to employers, and limited immunity to coemployees and other entities connected with employers because, according to the legislature, “such immunity is an essential aspect of the workers’ compensation scheme.” On the other hand, the legislature has determined that immunity for third parties unconnected to the employer or to the employment relationship is not an essential aspect of the workers’ compensation scheme. See § 25-5-ll(a), Ala.Code 1975 (allowing an action by the worker against a third-party tortfeasor). Compare § 25 — 5—57(c), Ala.Code 1975 (permitting the employer a set-off against workers’ compensation benefits “if and only if’ the employer paid the worker benefits under a disability retirement plan). When a worker contracts with his own insurer for UM coverage, that contract has no connection with the worker’s employment relationship. We, therefore, cannot conclude that a contract action against a worker’s own insurer to recover UM benefits pursuant to coverage for which the worker, or someone on his behalf, paid a premium undermines any essential aspect of the workers’ compensation scheme.

State Farm contends that Carlton’s suit for UM benefits is barred by the exclusivity provisions of the Act because, to be entitled to UM benefits, Carlton must invoke the Act and must rely on his negligent coemployee’s immunity under the Act. In other words, State Farm argues that because Carlton cannot sue his coemployee, he also cannot sue State Farm because, for purposes of UM coverage, State Farm steps into the shoes of the immune coemployee. We believe that Baldwin, Jeffers, and Hogan foreclose that argument. Those decisions stand for the proposition that a UM insurer does not step into the shoes of the immune tortfea-sor for purposes of asserting an immunity defense. It would be unlikely, as well as illogical, for our supreme court to decide that the insurer steps into the immune tortfeasor’s shoes for one purpose but not for another. Therefore, we conclude that Carlton’s action against State Farm cannot be distinguished from Baldwin, Jeffers, and Hogan on the basis of the exclusivity provisions of the Act.

State Farm next argues that the outcomes in Baldwin, Jeffers, and Hogan turned on the fact that, in each of those three cases, the injured party’s inability to bring a tort action against the negligent party caused the injuries to be unre-dressed. Thus, State Farm maintains, UM benefits were the only source of indemnification in Baldwin, Jeffers, and Hogan.

In contrast, State Farm points out that, although Carlton cannot bring a tort action against his negligent coemployee, his injuries have not been unredressed because he has received worker’s compensation benefits. In Allstate Insurance Co. v. Boynton, 486 So.2d 552 (Fla.1986), the Florida Supreme Court agreed with the argument now advanced by State Farm. It stated:

“In Florida a source of indemnification for a worker injured by a co-worker driving an uninsured vehicle is already available, i.e., the benefits of the Workers’ Compensation Law. Society’s goal of protecting the worker under this circumstance has been achieved. We do not need to torture the meaning of a statute [requiring UM coverage] aimed at curing another ill entirely to provide a remedy where one has already been provided.”

Boynton, 486 So.2d at 558. In Rough v. New Jersey Automobile Full Insurance Underwriting Ass’n, 237 N.J.Super. 460, 568 A.2d 127 (1990), the New Jersey court, commenting on the concern our own supreme court, in Baldwin, expressed with regard to the problem of uncompensated injuries, stated:

“Baldwin, supra, the Alabama serviceman’s case, found coverage at least in part because it detected a legislative intent to provide some source of recompense for the victim of an uninsured motorist. 470 So.2d at 1233. However, where the victim can obtain some redress through workers’ compensation benefits that problem is not present. This point was emphasized by the Perkins [v. Insurance Co. of North America, 799 F.2d 955, 961 (5th Cir.1986) (construing Mississippi law)] court:
“ ‘In these cases involving tort immunities, there exists a situation where there may be no compensation whatever from any source (including Workers’ Compensation) for injuries incurred in an accident, and as the Baldwin court held, this result runs counter to the theme of providing coverage which underlies uninsured motorist statutes. [Baldwin, 470 So.2d] at 1234. Here, on the other hand, there is recovery under Workers’ Compensation for this particular injury and the result is not a complete bar to any recovery by a claimant for his injuries.’ ”

Rough v. New Jersey Auto. Full Ins. Underwriting Ass’n, 237 N.J.Super. at 466, 568 A.2d at 131.

We conclude that the fact that Carlton had received workers’ compensation benefits for his injuries does distinguish this case from Baldwin, Jeffers, and Hogan. In the event that our supreme court finds that distinction insufficient to remove this case from the rule of Baldwin, Jeffers, and Hogan, we ask the court to revisit the holdings of those cases. See Knowles v. State Farm Mut. Auto. Ins. Co., 781 So.2d 211, 214 (Ala.2000) (Houston, J., concurring in the result, and Lyons, J., concurring in the result, joined by Hooper, C.J., and See, J.).

The judgment of the Montgomery Circuit Court is reversed, and the cause is remanded.

REVERSED AND REMANDED.

THOMPSON and PITTMAN, JJ., concur.

YATES, P.J., and MURDOCK, J., dissent.

YATES, Presiding Judge,

dissenting.

I would affirm the judgment of the trial court based on the authority of Hogan v. State Farm Mutual Automobile Insurance Co., 730 So.2d 1157 (Ala.1998), overruled on other grounds, Williamson v. Indianapolis Life Insurance Co., 741 So.2d 1057 (Ala.1999); State Farm Mutual Automobile Insurance Co. v. Jeffers, 686 So.2d 248 (Ala.1996); and State Farm Automobile Insurance Co. v. Baldwin, 470 So.2d 1230 (Ala.1985); therefore, I respectfully dissent from the main opinion.

MURDOCK, Judge,

dissenting.

Both the statute and the insurance policy at issue in this case contain rather straightforward, unambiguous language. Section 32-7-23, Ala.Code 1975, provides “protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles.” (Emphasis added.) In accord with this statutory provision, the automobile insurance policy purchased by Carlton’s family from State Farm provides that “[State Farm] will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle.” (Emphasis added.)

Because of the bar imposed by § 25-5-11, Ala.Code 1975, Carlton is not “legally entitled to recover,” or “collect,” damages from the tortfeasor, his coemployee. Initially, therefore, State Farm logically argues that Carlton is not entitled to uninsured-motorist (“UM”) benefits under the terms of the policy. See, e.g., Laidlaw Trans., Inc. v. Alabama Educ. Ass’n, 769 So.2d 872 (Ala.2000) (words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says); City of Rainsville v. State Farm Mut. Auto. Ins. Co., 716 So.2d 710 (Ala.Civ.App.1998) (unambiguous insurance policy is not to be construed to mean anything except what is set out in plain language).

However, this court’s review of this case cannot end with the terms of the statute or the policy. Beginning with the case of State Farm Automobile Insurance Co. v. Baldwin, 470 So.2d 1230 (Ala.1985), our Supreme Court has looked to the “legislative policy” underlying Alabama’s UM statute in construing § 32-7-23 and insurance policies such as that herein at issue.

State Farm’s threshold position in the present case is the same position it took in Baldiuin. In Baldwin, the Alabama Supreme Court responded to that position by acknowledging (1) that § 32-7-23 does contain the restricting language “legally entitled to recover”; (2) that the claimants therein were not legally entitled to recover from the tortfeasors, because of governmental immunity; and (3) that, under State Farm Mutual Automobile Insurance Co. v. Griffin, 51 Ala.App. 426, 286 So.2d 302 (Ala.Civ.App.1973), the insurer’s obligation under its UM policy provisions was limited by “substantive defenses that would have been available” to the tortfeasor. 470 So.2d at 1233. The Baldwin court therefore concluded that State Farm’s position was “technically correct.” Baldwin, 470 So.2d at 1234. Nevertheless, the court determined that the “legislative policy” underlying the statute did not allow State Farm to prevail.

That legislative policy, as the Baldwin court identified it, was to enable “one who wishes to protect himself against the negligence of an uninsured driver ... to contract with an insurer and, by paying an appropriate premium, receive such coverage.” Id. at 1233 (emphasis added). Similarly, in State Farm Mutual Automobile Insurance Co. v. Jeffers, 686 So.2d 248 (Ala.1996), our Supreme Court stated that “the design of the statute is to protect an injured person who can prove ... that he was injured as a proximate result of the negligence of another motorist who cannot respond in damages for such injuries.” 686 So.2d at 249-50 (emphasis added). Similarly, in Hogan v. State Farm Mutual Automobile Insurance Co., 730 So.2d 1157 (Ala.1998), the court decided that the fact that Alabama’s Guest Statute, § 32-1-2, Ala.Code 1975, “immunizes the tortfea-sor” does not affect the injured party’s entitlement to UM benefits. 730 So.2d at 1158-59 (emphasis added).

In his dissenting opinion in Hogan, Justice Lyons voiced concern that the Supreme Court’s decisions had construed the statutory phrase “legally entitled to recover” as “legally entitled to recover but for a defense [of the tortfeasor] that does not arise out of any wrongful conduct of the insured.” 730 So.2d at 1159 (Lyons, J., dissenting). As the majority notes, Justice Lyons then predicted that, under that construction, an “employee/passenger in a company-owned automobile who is precluded, by § 25-5-11, Ala.Code 1975, from recovering against a fellow employee/driver for negligence or wanton misconduct would be entitled to payment under his or her uninsured motorist coverage.” Hogan, 730 So.2d at 1159-60 (Lyons, J., dissenting). See also Knowles v. State Farm, Mut. Auto. Ins. Co., 781 So.2d 211, 214 (Ala.2000) (Houston, J., concurring in the result and stating that he would overrule Hogan; Lyons, J., concurring in the result with an opinion to the same effect, joined by.Hooper, C.J., and See, J.).

Unlike the majority, I believe Justice Lyons'predicted correctly. If, as indicated by the above-quoted passages from Baldwin, Jeffers, and Hogan, the legislative policy governing the construction of § 32-7-23 is one that focuses on a negligent motorist’s lack of responsibility, whether by virtue of lack of insurance or by virtue of legal immunity, I can see no distinction between the viability of the insured’s claim for benefits in the present case and the claims for benefits in Baldwin, Jeffers, and Hogan.

.State Farm argues, however, that this case is distinguishable from Baldwin, Jef-fers, and Hogan because there is a source of compensation for the injured party through his workers’-compensation benefits. Even if workers’-compensation benefits were properly considered for this purpose, such benefits do not cover all the damages that an employee might suffer (e.g., pain • and suffering and some lost wages). Yet, our law protects insureds against undeñnsured motorists (“UIM”) just as it does against troinsured motorists. See Ala.Code 1975, § 32-7-23(b)(4). To the extent that one-third of the insured’s lost wages or some other aspect of his or her damages are not to be paid under the workers’-compensation statute, the offending motor vehicle logically would have to be considered underinsured, thereby entitling the insured to a payment of UIM benefits.

Moreover, I do no believe the availability of workers’-compensation benefits makes the vehicle that injured Carlton an “insured motor vehicle” within the meaning of Alabama’s uninsured-motorist statute. A^ applied in this case, that statute is concerned with the potential liability of two separate tortfeasors from whom an injured party typically might be entitled to recover: the owner of a vehicle and the operator of the vehicle. (AJthough, in some situations, the owner may have imputed responsibility for the acts of the operator (e.g., if there is a principal/agent or employer/employee relationship), the injured party has separate causes of action and separate rights of recovery against each of these separate tortfeasors.) Thus, under the statute, if there is no insurance on an offending vehicle, or either the owner or the operator is not covered by any insurance that does exist, then the vehicle is an “uninsured motor vehicle” in that respect, and UM benefits are payable.

Further, treatment of workers’-compensation benefits as a substitute for motor vehicle insurance within the meaning of § 32-7-23 will, in my opinion, give rise to additional questions in an endless variety of other circumstances, questions that cannot be answered in a consistent and logical manner from one case to another. For example, if an employee’s entitlement to workers’-compensation benefits prevents him from receiving UM benefits under the circumstances of the present- case, what result when the injury occurs while an employee is on company business in an uninsured car driven negligently by a customer or contractor of his employer? The employee will receive the same workers’compensation benefits that, it is contended, deprive him of the right to receive UM benefits in the present case. Yet, he clearly has been injured by the “owner or operator” of an “uninsured motor vehicle.” This and other potential inconsistencies are, in my view, the product of attempting to merge two legislatively created schemes, the workers’-compensation statute and the uninsured/underinsured-motorist statute, not designed to be interjected into one another. I therefore believe the majority in this case is right when, in the context of the issue of exclusivity, it states that “when a worker contracts with his own insurer for UM coverage, that contract has no connection with the worker’s employment relationship.” 867 So.2d at 327.

Finally, State Farm points to a Florida Supreme Court decision holding that injured parties are not entitled to UM benefits if their injuries are to be redressed through workers’-compensation benefits, because, under the Florida court’s reasoning, a very broadly defined public-policy objective — “[sjociety’s goal of protecting the worker” by ensuring at least some compensation from at least some source— will be met. Allstate Ins. Co. v. Boynton, 486 So.2d 552, 559 (Fla.1986) (also concluding that it need not “torture the meaning of a statute [requiring UM coverage] ... to provide a remedy where one has already been provided”). Similarly, the New Jersey court in Rough v. New Jersey Automobile Full Insurance Undenuriting Association, 237 N.J.Super. 460, 568 A.2d 127 (App.Div.1990), pinned its analysis on a perceived broad legislative intent behind New Jersey’s uninsured-motorist statute: to provide “some source of recompense” for the victim of the uninsured motorist. Id. at 468, 568 A.2d at 132. I do not read Alabama’s UM statute in this manner, and, again, I do not believe that such a reading will yield logically consistent and proportionate results in all cases that might arise.

The text of Alabama’s UM statute does not, in my opinion, evidence an in intent simply to provide to an insured at least some compensation from some source. Instead, as indicated by both the statute and the above-discussed cases, the purpose of the uninsured-motorist coverage is to enable one who wishes to do so to pay an appropriate premium and, in return, receive from his insurer a contractually agreed-upon measure of protection against the acts of uninsured motorists. Indeed, in Higgins v. Nationwide Mutual Insurance Co., 291 Ala. 462, 282 So.2d 301 (1973), our Supreme Court rejected the argument that the fact that an uninsured motorist might be financially responsible in damages would cause the case to fall within any exclusion in the UM statute. 291 Ala. at 466, 282 So.2d at 305. Yet, the New Jersey court in Rough purports to distinguish Baldwin, which expressly relied upon Higgins (see Baldwin, 470 So.2d at 1232), on the ground that a third party — not even the uninsured driver himself — is able to respond in damages. Rozigh, 568 A.2d at 131. I find nothing in the language of the statute suggesting that whether some third party is available to pay any or all of the insured’s damages was within the calculus of the Legislature in enacting Alabama’s UM statute.

The approach of the Florida and New Jersey courts may have some surface attraction by virtue of the three-way relationship that exists between the injured party and the two tortfeasors at issue: a coemployee and an employer. If the policy objective of simply assuring some compensation from some source is to be deemed appropriate, however, it must be found to yield consistent results from one case to another. What result when an employee entitled to workers’-compensation benefits is injured while on business in a car driven by an insured third party? What if he is injured by two tortfeasors who have no relation to one another or to the insured’s employer, yet one of them agrees to pay for all or part of the damages? Under the broad Florida/New Jersey policy objective, should UM benefits not be denied in these situations? Again, I see nothing in the language of the statute to suggest such results.

The language of § 32-7-23 and the language of State Farm’s policy, taken alone, would not appear to entitle Carlton to UM benefits. The holdings of Baldwin, Jeffers, and Hogan do. This court is bound by the latter.

Accordingly, I must respectfully dissent.

      . The decisions that allow UM benefits are Southern Farm Bureau Cas. Ins. Co. v. Pettie, 54 Ark.App. 79, 924 S.W.2d 828 (1996), and Barfield v. Barfield, 742 P.2d 1107 (Okla.1987).
      The decisions that deny UM benefits are Allstate Ins. Co. v. Boynton, 486 So.2d 552 (Fla.1986); Williams v. Thomas, 187 Ga.App. 527, 370 S.E.2d 773 (1988); State Farm Mut. Auto. Ins. Co. v. Royston, 72 Haw. 338, 817 P.2d 118 (1991); Williams v. Country Mut. Ins. Co., 28 Ill.App.3d 274, 328 N.E.2d 117 (1975); O'Dell v. State Faim Mut. Auto. Ins. Co., 173 Ind.App. 106, 362 N.E.2d 862 (1977), overruled on other grounds by Thiellen v. Graves, 530 N.E.2d 765 (Ind.App.1988); Mayfield v. Casualty Reciprocal Exchange, 442 So.2d 894 (La.App.1983), cert. denied, 445 So.2d 1230 (La.1984); Hopkins v. Auto-Owners Ins. Co., 41 Mich.App. 635, 200 N.W.2d 784 (1972); Peterson v. Kludt, 317 N.W.2d 43 (Minn.1982); Kough v. New Jersey Auto. Full Ins. Underwriting Ass’n, 237 N.J.Super. 460, 568 A.2d 127 (1990); Cormier v. National Farmers Union Prop. & Cas. Co., 445 N.W.2d 644 (N.D.1989); State Farm Mut. Auto. Ins. Co. v. Webb, 54 Ohio St.3d 61, 562 N.E.2d 132 (1990) (superseded by statute, Ohio Rev. Code Ann. § 3937.18(F) (Anderson 1996)); Cope v. West American Ins. Co., 309 Or. 232, 785 P.2d 1050 (1990); Federal Kemper Ins. Co. v. Wales, 430 Pa.Super. 208, 633 A.2d 1212 (1993); Valentine v. Safeco Lloyds Ins. Co., 928 S.W.2d 639 (Tex.Ct.App.1996); Peterson v. Utah Farm Bureau Ins. Co., 927 P.2d 192 (Utah Ct.App.1996); Aetna Cas. & Sur. Co. v. Dodson, 235 Va. 346, 367 S.E.2d 505 (1988); Romanickv. Aetna Cas. & Sur. Co., 59 Wash.App. 53, 795 P.2d 728 (1990).

      . The general rule is that "[¡Insofar as the uninsured motorist coverage has been bought and paid for by someone other than the injured employee, ... [t]he injured employee cannot recover uninsured motorist benefits under the uninsured motorist coverage in policies obtained by his or her employer, partner, or the negligent coemployee." See Ludington, Annot., 82 A.L.R.4th at 1099. See also Medders v. United States Fidelity & Guar. Co., 623 So.2d 979 (Miss.1993); Chance v. Farni Bureau Mut. Ins. Co., 756 F.Supp. 1440 (D.Kan.1991); Hubbelv. Western Fire Ins. Co., 218 Mont. 21, 706 P.2d 111 (1985); Wisman v. Rhodes & Shamblin Stone, Inc., 191 W.Va. 542, 447 S.E.2d 5 (1994). Kentucky appears to be the sole exception to the rule. See Philadelphia Indem. Ins. Co. v. Morris, 990 S.W.2d 621 (Ky.1999).
      In Alabama, such a claim would probably be denied on grounds unrelated to the interplay between the Workers' Compensation Act and the UM statute. See Allstate Ins. Co. v. Hardnett, 763 So.2d 963 (Ala.2000) (holding that a vehicle is not within the definition of 'uninsured auto” if it is included in the liability coverage of the same policy). See also Dale v. Home Ins. Co., 479 So.2d 1290 (Ala.Civ.App.1985) (holding that a fireman injured by a negligent coworker was not entitled to UM benefits under his employer's automobile policy because the firetruck in which he was injured was an insured vehicle under the same policy).

      . The UM insurer may be able to take advantage of a right of set-off held by either the owner or the operator when damages are paid by or on behalf of the other, but that fact relates to the threshold issue whether an ki-jured party is “legally entitled to recover” from the tortfeasor who has the set-off right, a different question from the question whether the vehicle is uninsured as to either the owner or the operator.


source: Caselaw Access Project

author: STUART, Justice. WOODALL, Justice

license: Public Domain

text:
    Ex parte Nicholas Shane CARLTON. (In re State Farm Mutual Automobile Insurance Company v. Nicholas Shane Carlton).
    1001781.
    Supreme Court of Alabama.
    April 11, 2003.
    Rehearing Denied June 20, 2003.

      Richard A. Lawrence, Montgomery, for petitioner.
    Ronald G. Davenport and R. Austin Huf-faker, Jr., of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for respondent.
   STUART, Justice.

This Court granted certiorari review in this case to consider an issue of first impression involving Aabama’s uninsured-motorist statute. The question presented is whether an employee, injured in a motor-vehicle accident while acting in the scope of his employment, who is barred by the exclusivity-of-remedy provision in the Workers’ Compensation Act, § 25-5-1 et seq., Aa.Code 1975, from suing a co-employee based on negligence, is entitled to uninsured-motorist benefits under his mother’s liability automobile insurance policy.

I.

In October 1998, Nicholas Shane Carlton was injured in a motor-vehicle accident while acting within the scope of his employment with Montgomery Landscaping Contractors, Inc. Carlton was a passenger in a vehicle owned by his employer and driven by a co-employee. The co-employee driver negligently turned in front of an oncoming vehicle. Carlton received workers’ compensation benefits from his employer for his injuries. He also sought benefits under an automobile insurance policy his mother had with State Farm Mutual Automobile Insurance Company that included Carlton as an insured and that provided uninsured-motorist coverage.

State Farm refused to pay the benefits and filed an action seeking a declaration of the parties’ rights under the policy. Before he was served with State Farm’s action, Carlton sued State Farm to collect uninsured-motorist benefits under his mother’s policy. In State Farm’s action, Carlton answered and counterclaimed for the proceeds due under the policy. The two cases were consolidated, and the parties stipulated to the facts. Each party moved for a summary judgment and filed a supporting brief.

State Farm took the position that Carlton cannot fulfill the condition precedent to recovery of uninsured-motorist benefits— that he be “legally entitled to recover” from the negligent driver — because, State Farm says, Carlton is barred by the exclusivity-of-remedy and co-employee-immunity provisions of the Workers’ Compensation Act from suing a co-employee based on negligence. See §§ 25-5-52, 25-5-53, and 25-5-11, Aa.Code 1975.

The circuit court disagreed; it entered a judgment in favor of Carlton and awarded him $50,000 — the limits of his mother’s uninsured-motorist coverage under her automobile insurance policy with State Farm. State Farm appealed.

The Court of Civil Appeals reversed the trial court’s judgment and remanded the case to the trial court. State Farm Mut. Aido. Ins. Co. v. Carlton, 867 So.2d 320 (Ma.Civ.App.2001). This Court granted Carlton’s petition for a writ of certiorari. Having considered the applicable statutes and reviewed existing caselaw, we affirm.

II.

State Farm and Carlton agree that this case presents an issue of first impression in this state: whether an employee, who is barred by the Workers’ Compensation Act from suing a co-employee based on negligence, is entitled to uninsured-motorist benefits under his family’s automobile liability insurance policy even though he is entitled to, and in fact has received, workers’ compensation benefits. The facts were stipulated to at the trial court level; therefore, the issue on appeal is strictly a question of law. Where the evidence is stipulated and no testimony is presented orally in the trial court, this Court indulges no presumption of correctness in the trial court’s judgment. See Sevigny v. New South Fed. Sav. & Loan Ass’n, 586 So.2d 884, 886 (Ala.1991); Epps Aircraft, Inc. v. Montgomery Airport Auth, 570 So.2d 625, 629 (Ala.1990).

III.

State Farm urges that the issue can be resolved simply by looking at the plain and unambiguous language of the uninsured-motorist statute, Ala.Code 1975, § 82-7-28, and the State Farm automobile insurance policy, both of which, it asserts, require that an insured be legally entitled to recover against the negligent party in order for the insured to be entitled to uninsured-motorist benefits.

The uninsured-motorist statute provides, in pertinent part:

“No automobile liability or motor vehicle liability policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered ... unless coverage is provided ... for bodily injury or death ... for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom.... ”

Ala.Code 1975, § 32-7-23. The State Farm policy echoes the language of the uninsured-motorist statute, providing that State Farm “will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured vehicle.” The issue then, according to State Farm, is whether Carlton was legally entitled to recover damages from his co-employee.

This Court has held that “legally entitled to recover” means that “ ‘the insured must be able to establish fault on the part of the uninsured motorist, which gives rise to damages and must be able to prove the extent of those damages.’ LeFevre v. Westberry, 590 So.2d 154, 157 (Ala.1991) (quoting Quick v. State Farm Mut. Auto. Ins. Co., 429 So.2d 1033, 1035 (Ala.1983)). As the Court of Civil Appeals stated in State Farm Mutual Automobile Insurance Co. v. Griffin, 51 Ala.App. 428, 431, 286 So.2d 302, 306 (1973):

“[T]he insured must be able to establish fault on the part of the uninsured motorist, which gives rise to damages, and must be able to prove the extent of those damages. In a direct action by the insured against the insurer, the insured has the burden of proving in this regard that the other motorist was uninsured, legally liable for damage to the insured, and the amount of this liability.”

State Farm argues that Carlton cannot carry his burden of proof because he cannot prove that his co-employee is legally liable to him for damages. It points out that § 25-5-53, Ala.Code 1975, provides that the Workers’ Compensation Act is the exclusive remedy for injuries sustained by an employee in an on-the-job injury. Section 25-5-53 provides, in pertinent part:

“The rights and remedies granted in this chapter to an employee shall ex- elude all other rights and remedies of the employee ... at common law, by statute, or otherwise on account of injury, loss of services, or death.... ”

(Emphasis added.)

Carlton counters by arguing that a line of cases developed over a 15-year' period establishes that the vehicle driven by the co-employee was an “uninsured motor vehicle” under the uninsured-motorist statute and that the co-employee was an operator against whom Carlton was entitled to recover. He cites Hogan v. State Farm Mutual Automobile Insurance Co., 730 So.2d 1157 (Ala.1998); State Farm Mutual Automobile Insurance Co. v. Jeffers, 686 So.2d 248 (Ala.1996); and State Farm Automobile Insurance Co. v. Baldunn, 470 So.2d 1230 (Ala.1985). A- review of the development of that line of cases is helpful at this point.

In Baldwin, the Feres doctrine precluded the insured, a member of the armed forces, from maintaining a tort action against the government for injuries sustained when the insured was involved in a collision with a government vehicle being operated by a civil employee of the United States government. The Court held, that this did not preclude recovery under the uninsured-motorist provisions of the Baldwins’ automobile insurance policy. It stated:

“[I]t is in keeping with the intent of the uninsured motorist statute and with our principles of statutory construction- to hold that the Baldwins are ‘legally entitled to recover damages’ against White and the Government, within the meaning of § 32-7-23, regardless of the fact that David Baldwin is otherwise prohibited from such recover by the Feres doctrine. Therefore, they are entitled to recover under their policy with State Farm.”

470 So.2d at 1234.

In Jeffers, the United States District Court for the Middle District of Alabama certified to this Court a question arising out of a collision between an automobile driven by the plaintiff Jeffers and an automobile driven by a Houston County sheriffs deputy. The issue was whether . a vehicle covered under an insurance policy could be an “uninsured vehicle,” when the claim is barred because the other party involved in the accident is protected from liability by substantive immunity. The Court held that “[bjecause of the application of the doctrine of substantive immunity, Deputy Anderson, in effect, was not insured,” 686 So.2d at 250. The Court thus allowed the action in the federal court to proceed against Jeffers’s insurance carrier for-uninsured-motorist coverage.

In Hogan, the Court addressed another question certified by the United States District Court for the Middle District of Alabama — whether uninsured-motorist coverage applied where the tortfeasor was the driver of the vehicle and the injured party was the guest passenger. Alabama’s guest statute, § 32-1-2, Ala.Code 1975, prohibited any recovery by the passenger from the driver based on the driver’s negligence. In Hogan, the insurer argued that the passenger was not barred from recovery, he merely had a higher standard to meet because the guest statute allows recovery for willful or wanton misconduct. However, the Court could not “accept that distinction.” 730 So.2d at 1159. The Court followed Baldwin and Jeffers and held that the passenger could recover under her uninsured-motorist coverage. Carlton urges us to follow the rationale adopted in Baldwin, Jeffers, and Hogan, and to find State Farm liable for the uninsured-motorist benefits in spite of the plain language of the policy and of the Workers’ Compensation Act.

State Farm argued to the Court of Civil Appeals that the instant case is distinguishable from Baldwin, Jeffers, and Hogan, because this case involves workers’ compensation benefits and the exclusivity-of-remedy provision in the Workers’ Compensation Act and because the insured has received compensation for his injuries. It urged that court, if it found the cases indistinguishable, to revisit the earlier decisions and overrule them. The Court of Civil Appeals in its opinion correctly observed that it had no authority to overrule decisions of the Alabama Supreme Court; it held:

“We conclude that the fact that Carlton had received workers’ compensation benefits for his injuries does distinguish this case from [State Farm Auto. Ins. Co. u] Baldwin, [470 So.2d 1230 (Ala. 1985)], [State Farm Mut. Auto. Ins. Co. v.] Jeffers, [686 So.2d 248 (Ala.1996)], and Hogan [v. State Farm Mut. Auto. Ins. Co., 730 So.2d 1157 (Ala.1998), overruled on other grounds, Williamson v. Indianapolis Life Insurance Co., 741 So.2d 1057 (Ala.1999)]....
“The judgment of the Montgomery Circuit Court is reversed.... ”

Carlton, 867 So.2d at 328. The Court of Civil Appeals additionally requested that this Court revisit the decisions in Baldwin, Jeffers, and Hogan. We do so at this time. Because we do not follow the rationale used by the Court of Civil Appeals in which it found the present case distinguishable from Baldwin, Jeffers, and Hogan, we do not address the parties’ arguments on this issue.

Baldwin, Jeffers, and Hogan all carved out judicial exceptions to the legislative determination that an insured could recover uninsured-motorist benefits only when the insured was legally entitled to recover from the uninsured motorist. These were exceptions the Legislature could have provided for but did not see fit to do so.

Justice Houston called attention to the folly of judicially expanding the meaning of the unambiguous uninsured-motorist statute in his dissent in Jeffers, 686 So.2d at 250. He noted that the parties had stipulated that the vehicle the deputy sheriff was operating was insured for liability for bodily injury in an amount in excess of that required by the Alabama Motor Vehicle Safety Responsibility Act. He observed:

“Alabama Acts 1965, Act No. 866; Section 32-7-23 (before it was amended in 1984); Ala. Acts 1984, Act No. 84-301; and § 32-7-23 as it read after amendment, all address ‘uninsured motor vehicles,’ not ‘uninsured motorist’ (a term used by the Michie Company in its version of our Alabama Code of 1975 as a heading for § 32-7-23. That heading has no legal significance. See Ala.Code 1975, § 1-1-14).
“The mere fact that a vehicle insured for bodily injury liability is operated by someone who is immune from liability while operating that vehicle cannot make the vehicle an ‘uninsured motor vehicle.’ The certified question in State Farm Automobile Insurance Co. v. Baldwin, 470 So.2d 1230 (Ala.1985), involved an uninsured motor vehicle. 470 So.2d at 1231, 1234. The question presented in this case does not.”

686 So.2d at 250 (Houston, J., dissenting). Justice Houston properly pointed out the nonsensical result of the case: a sheriffs department vehicle, which was undisput-abiy insured, was transformed by judicial pronouncement into an “uninsured vehicle.”

Justice Lyons further pointed to the problems created by this line of cases and predicted that a case such as this one would arise. In Hogan, he stated:

“I respectfully dissent because I consider the holdings of State Farm Auto. Ins. Co. v. Baldwin, 470 So.2d 1230 (Ala.1985), and State Farm Mut. Auto. Ins. Co. v. Jeffers, 686 So.2d 248 (Ala.1996), to misapply the rather plain limitation in § 32-7-23(a), Ala.Code 1975. The statute requires coverage for persons carrying uninsured motorist insurance when such persons are ‘legally entitled to recover damages from owners or operators of uninsured motor vehicles.’ Id. I believe that whether an insured is ‘legally entitled to recover’ depends entirely on the merits of the insured’s claim against a tortfeasor under the laws of the state. However, today’s decision, like Baldwin and Jeffers, has construed that phrase to mean ‘legally entitled to recover but for a defense that does not arise out of any wrongful conduct of the insured,’ a defense such as immunity or an insured’s status as a guest.
“Under the majority’s expansive rationale, an employee/passenger in a company-owned automobile who is precluded, by § 24-5-11, Ala.Code 1975, from recovering against a fellow employee/driver for negligence or wanton misconduct would be entitled to payment under his or her uninsured motorist coverage. The expansive interpretation the majority reiterates today, which is not in harmony with the law of other states, has not provoked any amendments to the Uninsured Motorist Statute, § 32-7-23(a), since the Baldwin decision. I cannot equate the legislature’s inaction with approval of the Court’s treatment in prior cases of the phrase ‘legally entitled to recover damages from owners or operators of uninsured motor vehicles.’
“The public, not the insurer, ultimately will bear the cost, through increased insurance premiums, of today’s decision to require expanded uninsured motorist coverage. Expanded coverage is appropriate when the policyholder and the insurer contract for it or when the legislature requires it. But, such coverage should not be imposed by a court through an expansive interpretation of clear statutory language.”

730 So.2d 1157 at 1159-60 (Lyons, J., dissenting, with an opinion in which See, J., concurred)(footnotes omitted).

Today we return to the point from which this Court never should have departed — the language of the statute. The language of the uninsured-motorist statute is plain and unambiguous:

“No automobile liability or motor vehicle liability policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered ... unless coverage is provided ... for bodily injury or death ... for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom.... ”

Ala.Code 1975, § 32-7-23. This Court has often stated:

“ ‘ “Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.” ’ ”

DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270, 275 (Ala.1998)(quoting Blue Cross & Blue Shield v. Nielsen, 714 So.2d 293, 296 (Ala.1998), quoting in turn IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992)). No interpretation of the words of the uninsured-motorist statute is necessary. Furthermore, this Court is not at liberty to rewrite statutes or to substitute its judgment for that of the Legislature. Wal-Mart Stores, Inc. v. Patterson, 816 So.2d 1 (Ala.2001); see also Omni Ins. Co. v. Foreman, 802 So.2d 195 (Ala.2001).

Pursuant to the Alabama Workers’ Compensation Act, Carlton may not recover from his co-employee for the co-employee’s negligent or wanton conduct. The workers’ compensation benefits Carlton received are his only remedy against his employer. § 25-5-11, Ala.Code 1975. Therefore, Carlton is not “legally entitled to recover damages from the owner or operator of an uninsured vehicle” as the plain language of § 32-7-23(a), Ala.Code 1975, or the clear and unambiguous provisions of his mother’s State Farm policy require. Thus, he may not recover uninsured-motorist benefits under the policy.

To the extent that Baldwin, Jeffers, and Hogan authorize recovery under the uninsured-motorist provision of a policy despite the fact that the insured is “not legally entitled to recover damages from the owners or operators of an uninsured vehicle” as required by § 32-7-23(a), Ala.Code 1975, they are overruled. The judgment of the Alabama Court of Civil Appeals is affirmed.

AFFIRMED.

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

MOORE, C.J., and JOHNSTONE and WOODALL, JJ., dissent.

WOODALL, Justice

(dissenting).

In my opinion, the Court of Civil Appeals should have affirmed the judgment of the trial court, as clearly required by this Court’s decisions in State Farm Automobile Insurance Co. v. Baldwin, 470 So.2d 1230 (Ala.1985), State Farm Mutual Automobile Insurance Co. v. Jeffers, 686 So.2d 248 (Ala.1996), and Hogan v. State Farm Mutual Automobile Insurance Co., 730 So.2d 1157 (Ala.1998). Therefore, I respectfully dissent.

As this Court stated in Hogan, “the Legislature, of course, has the prerogative to change the statute so as to avoid the interpretation adopted by this Court in Baldwin, Jeffers, and [Hogan].” 730 So.2d at 1159 n. 1. Because the Legislature has chosen not to amend the statute, I am not convinced that this Court’s earlier interpretations of the statute were inconsistent with legislative intent. Therefore, I cannot agree that this Court should overrule Baldwin, Jeffers, or Hogan.

JOHNSTONE, J„ concurs.

      . Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950).


author: PER CURIAM.

text:
    Katerina KORN v. Michael KORN.
    2010685.
    Court of Civil Appeals of Alabama.
    Jan. 24, 2003.
    Certiorari Denied June 13, 2003 Alabama Supreme Court 1020747.

      Jack E. Held and Anthony R. Smith of Sirote & Permutt, P.C., Birmingham, for appellee.
   On Application for Rehearing

PER CURIAM.

The opinion of this court issued on November 15, 2002, is withdrawn, and the following is substituted therefor. Katerina Korn (“the wife”) appeals from a judgment of the Jefferson Circuit Court divorcing her from Michael Korn (“the husband”); awarding the parties joint legal custody of their three-year-old daughter (“the child”), subject to the wife’s remaining in the United States with the child; awarding the wife $100 per month in periodic alimony, subject to her remaining in the United States and not being employed; and directing the parties to be responsible for their own attorney fees.

The wife and the husband are natives of the former Union of Soviet Socialist Republics who emigrated to the State of Israel with their respective families; they met in Israel as teenagers and married in 1997. Soon after the parties’ marriage, the husband, a violinist, moved to Alabama to work for a symphony orchestra, having been granted a visa as an “O-l” nonimmi-grant alien by the United States Immigration and Naturalization Service (“INS”), a classification for artists with extraordinary abilities (see 8 U.S.C. § 1101(a)(15)(O)(i) and 8 C.F.R. § 214.2(o)(l)(ii)(A)(l) (2002)). The wife followed the husband to Alabama in December 1997, entering the United States pursuant to an “0-3” nonimmigrant visa for spouses of “0-1” aliens (see 8 U.S.C. § 1101(a)(15)(0)(iii) and 8 C.F.R. § 214.2(o)(6)(iv) (2002)). Although the husband has maintained employment following his arrival in the United States as a violinist and a music instructor, the wife’s “0-3” visa does not allow her to accept employment without employment authorization from the INS. See 8 C.F.R. § 214.2(o)(6)(iv) (2002).

The child was born in May 1999, after the parties had begun experiencing marital difficulties, mainly concerning financial matters and tensions between the wife and the husband’s family. The record reveals that the husband has adhered to a rigorous work schedule, which involves frequent rehearsals and symphonic performances as well as giving music lessons, and that he has limited free time. The wife served as the primary caregiver of the child during her infancy; before the parties’ separation, the child had never been left with a babysitter.

During March 2000, the wife and the child returned to Israel for what was originally scheduled to be a one-month visit. However, the parties quarreled by telephone during the wife’s visit and reached a decision to separate permanently. The wife sent the husband a letter demanding that the husband send her $12,000 as a condition to her returning with the child to the United States for divorce proceedings. In May 2000, the husband initiated litigation in Israel, under the Hague Convention on the Civil Aspects of International Child Abduction of October 25, 1980, seeking to require the wife to return the child to the United States. A judgment was rendered in September 2000 by an Israeli family-affairs court directing the wife to return with the child to the United States; however, the wife did not return until May 2001, at which time the husband initiated divorce proceedings in the Jefferson Circuit Court.

In his complaint, the husband alleged that there had been an irretrievable breakdown of the parties’ marriage; he sought, among other things, sole custody of the child. The husband also sought, and obtained, an injunction preventing the wife from again removing the child from the United States until a final disposition of the divorce proceedings. The wife answered the complaint and counterclaimed, seeking, among other things, alimony, attorney fees, and sole custody of the child. The trial court awarded primary custody of the child to the wife, pending a final hearing, and the husband was directed to pay the wife $523 per month as pendente lite child support and $100 per month as pendente lite alimony.

In June 2001, the husband moved for a psychological evaluation of the wife, claiming that she had engaged in “erratic” behavior during the course of their marriage; he agreed to undergo a similar evaluation. The trial court granted the husband’s motion, and a psychologist, Dr. Karen Turn-bow, was appointed to evaluate the parties and the child. After conducting her evaluations, Dr. Turnbow submitted a report to the trial court identifying, among other things, various strengths and weaknesses in each party’s psychological profile and summarizing the child’s interaction with each of her parents.

The ease was tried between December 17, 2001, and December 20, 2001, during which a number of witnesses, in addition to the parties, gave testimony. In January 2002, the trial court entered a judgment divorcing the parties. In its order, the trial court found, among other things, that the wife had been the child’s primary caregiver; that the husband had worked as a musician and a teacher for “long hours, up to 7 days per week”; that the wife had “shown no ability to gain employment” in the United States; that both parties had testified concerning the currently violent political and military situation in Israel; that the wife planned to return to Israel, with or without the child, within a “reasonable time” after the court entered its judgment; and that “it would be in the best interest of the minor child that [the child’s] residence should be” in the United States.

Based on those findings, the trial court awarded the husband and the wife joint legal custody, with the wife to have physical custody of the child except for two weekends per month, one month each summer, various family birthdays and holidays, and such other times as agreed upon by the parties. The trial court’s judgment also specified that “should the [wife] decide to leave the [United States] to reside elsewhere, this shall be deemed a material change in circumstances such that the legal custody shall immediately change and vest [in the husband] without further legal proceedings ... and the [wife] will immediately surrender physical custody.” The husband’s pendente lite child-support obligation was maintained in force, and each party was awarded the personal property in their respective possession and allocated their individual debts; moreover, the husband was made responsible for paying all unpaid debts of the marriage. Finally, each party was made responsible for paying his or her counsel.

The wife subsequently filed a post-judgment motion to alter, amend, or vacate the judgment, challenging, among other things, the provision of the judgment automatically divesting her of primary physical custody of the child should she choose to reside in a country other than the United States, the omission of any reference in the judgment to alimony, and the absence of any award of attorney fees. After a hearing, the trial court made various changes to its judgment; among these was a new provision directing the husband to pay the wife $100 per month in periodic alimony, but stating that that obligation “shall terminate upon the [wife’s] becoming employed or [if she] no longer resides in the [United States] or leaves [the United States] for a period in excess of thirty (30) days.” However, the trial court’s judgment as to custody and attorney fees remained materially unchanged.

On appeal, the wife contends that the trial court erred in awarding joint custody of the child to the parties and in providing that custody of the child would vest automatically in the husband if she relocates from the United States. She also contends that the trial court’s award of $100 per month in periodic alimony, which is conditioned upon her remaining unemployed and residing in the United States, was an abuse of discretion. Finally, the wife contends that the trial court should have directed the husband to pay her attorney fees.

In contending that the trial court erred in its judgment insofar as it awarded joint custody, the wife argues that the trial court should have awarded her sole custody of the child because, she says, the husband is incapable of being a “team player,” i.e., cooperating with the wife, with respect to decisions affecting the child. She also argues that the provision of the trial court’s judgment directing that primary custody of the child will revert to the husband, without further legal proceedings, if she leaves the United States is contrary to Alabama precedents.

The Legislature of Alabama has stated that the policy of this State is “to encourage parents to share in the rights and responsibilities of rearing their children after the parents have separated or dissolved their marriage.” Ala.Code 1975, § 30-3-150. To that end, trial courts are to consider, “in every case,” an award of joint custody, i.e., joint legal custody and joint physical custody. Ala.Code 1975, §§ 30-3—151(1)—(3) and 30-3-152(a). Among the factors that trial courts are to consider in determining whether to award joint custody are (1) the existence of an agreement between the parents on joint custody; (2) the parents’ ability to cooperate and to make decisions jointly; (3) each parent’s ability to encourage a close relationship with the other parent; (4) any risk of domestic violence; and (5) the geographical proximity of the parents. Ala. Code 1975, § 30-3-152. These factors supplement traditional, common-law custody f&c-tors such as the age and needs of the children involved and each parent’s ability to provide for those needs (see Wolf v. Wolf, 666 So.2d 17, 19 (Ala.Civ.App.1995)).

Although the wife points to an opinion, expressed in Dr. Turnbow’s report, that the husband “tend[s] to assert control in dealing with others” and cites certain disagreeable conduct exhibited toward her in visitation and dental-treatment situations involving the child, evidence was presented to support a determination that joint custody, rather than sole custody vested in the wife, would be in the child’s best interests. Although the wife was the primary caregiver for the child before the parties’ separation, a number of witnesses testified at trial that the husband has been an active caregiver since the child’s return from Israel, performing tasks such as feeding and bathing her, changing her clothes and diapers, and playing with her. Dr. Turnbow’s psychological report noted the husband’s creativity and understanding with respect to disciplining the child, as well as the child’s animated, affectionate, and playful demeanor in interacting with the husband. In contrast, Dr. Turnbow observed 'that the child was solemn and reserved in the presence of the wife, although she reported that the child was “comfortable” in each parent’s presence. Moreover, there was evidence indicating that while in the wife’s sole care, the child developed such a severe case of juvenile-tooth decay that extensive dental treatment, including both root-canal therapy and the installation of stainless-steel tooth crowns, was later prescribed and undertaken at the husband’s expense. The trial court could properly have concluded that the child, as she matures, would benefit from frequent contact with both the husband and the wife, as opposed to being in the sole custody of the wife.

With respect to the custodial-reversion clause in the trial court’s judgment, the wife cites Hovater v. Hovater, 577 So.2d 461 (Ala.Civ.App.1990). In Hovater, this court held that a trial court, considering whether to modify custody as to two children, erred in giving effect to a provision of the parties’ earlier divorce judgment mandating that if the children’s mother moved outside of a particular school district or failed to send the children to that district’s schools, physical custody of the children during the school term would automatically vest in their father. The Hovater court reasoned:

“[W]e find that the trial court erred in effectuating the custodial reversionary clause found in the original decree. We do not reach this decision casually. We rely on a comparative analysis with the analogous line of cases disfavoring escalated child support payments. See Morrison v. Kirkland, 567 So.2d 363 (Ala.Civ.App.1990); Forlini v. Forlini, 455 So.2d 855 (Ala.Civ.App.1983); Langford
v. Langford, 441 So.2d 962 (Ala.Civ.App. 1983).
“In Morrison we found that the disfavor with escalated child support payments stems from the fact that there is no evidentiary basis for the determination of the future events and that there exists an adequate procedure for modification when changes in circumstances do occur. We determined in Morrison that the trial court could not speculate on the future ability of the parent to pay or on the future needs of the children. Likewise, in our situation, who is to say that it will be in the children’s future best interests to stay at the Mt. Hope school or to even reside in the Mt. Hope community? ... [T]he custodial reversion-ary clause in this instance [is] of no effect because it is premised on a mere speculation of what the best interests of the children may be at a future date.... The trial court’s reliance on the operative language of the reversionary clause in changing the custodial arrangement in this instance is misplaced.”

577 So.2d at 463. To like effect are Scacca v. Scacca, 694 So.2d 1, 4 (Ala.Civ.App.1997) (holding that the petitioning party did not meet the burden of proving necessity of change in custody despite evidence of custodian’s intent to move child from county specified in custodial-reversion clause), and Moore v. Moore, 585 So.2d 66, 68 (Ala.Civ.App.1991) (holding that the party seeking a change in custody must show that proposed relocation of party who has custody would have adverse effect on child).

The husband argues that Hovater is inconsistent with the Alabama Supreme Court’s decision in Ex parte Monroe, 727 So.2d 104 (Ala.1999). In Monroe, a 1993 divorce judgment provided that the mother would have custody of the parties’ three-year-old son. In 1996, the father petitioned for a modification of custody, alleging that the mother had received a job transfer and that she would be moving to Michigan and taking the son with her. The trial court conducted a hearing, at which it heard the testimony of both parties, members of the child’s extended family in Marshall County, Alabama, and several psychological experts regarding the effect of the proposed move on the son. After the hearing, the trial court concluded that the father had met his burden under Ex parte McLendon, 455 So.2d 863 (Ala.1984). Accordingly, the trial court modified its custody award to provide that the child would be placed with the father if the mother moved to Michigan.

This court reversed the trial court’s judgment, holding that the mother’s proposed move to Michigan was insufficient as a basis for a modification of custody. The Alabama Supreme Court reversed the court’s judgment, concluding, in effect, that this court had substituted its judgment for that of the trial court. The supreme court stated:

“The trial court analyzed testimony given by various experts, counselors, and family members and from that testimony determined that it was in the best interest of the child to stay in Alabama close to his father and to the child’s very supportive extended families. We cannot say the trial judge’s determination was clearly erroneous or against the great weight of the evidence; its judgment was not plainly and palpably wrong.”

Ex parte Monroe, 727 So.2d at 106-07.

Monroe is distinguishable because it did not deal with the effect of a speculative future change in the custodial parent’s residence, but with the modification of custody after an extensive ore tenus proceeding specifically directed to the impact on the child of an impending change of residence. In other words, the change-of-custody order in Monroe was based on evidence as to the child’s current best interests, not upon speculation as to what his best interests might be at some point in the future. The problem with an automatic custodial-reversion clause, of course, is that it “is premised on a mere speculation of what the best interests of the child[ ] may be at a future date.” Hovater, 577 So.2d at 463.

The husband urges this court to affirm the trial court’s custodial-reversion clause in spite of Hovater, arguing that the restriction is broader than the single-school-district limitation in Hovater, that public policy favors giving effect to such clauses, and that geographic limitations on the residency of custodial parents have been upheld in previous Alabama cases. However, the holding in Hovater is not a function of the size of the territory specified in a custodial-reversion clause, but is based upon the principle that a relocation of a custodial parent is not necessarily a material change in circumstances warranting a change of custody in every case. Where primary physical custody is awarded to one parent, as in this case, Alabama law requires a trial court, in determining whether that custodial arrangement should be altered in the future, to ascertain whether a material change in circumstances has occurred since the last custody judgment was entered, whether a change of custody will materially promote the child’s best interests, and whether the benefits of changing custody outweigh the disruption of uprooting the child. See Ex parte McLendon, 455 So.2d 863, 865-66 (Ala.1984); Ex parte Johnson, 673 So.2d 410, 413 (Ala.1994). In other words, a custodial parent’s change in residence is but one factor for the trial court to consider in deciding whether custody should be modified. Ex parte Murphy, 670 So.2d 51, 53 (Ala.1995).

There is a difference between a judgment placing a current limitation upon the residence of a child’s primary custodian and a judgment that mandates that custody be automatically changed when a custodian changes his or her locale. In this regard, we note that Hovater’s condemnation of custodial-reversion clauses is consistent with, family-law precedents in our sister states. See, e.g., In re Marriage of Seitzinger, 333 Ill.App.3d 103, 775 N.E.2d 282, 266 Ill.Dec. 720, (2002); Zeller v. Zeller, 640 N.W.2d 53, 58 (N.D.2002); Carter v. Kratzenberg, 209 A.D.2d 990, 991, 619 N.Y.S.2d 456, 456 (1994); Wilson v. Wilson, 12 Va.App. 1251, 1255, 408 S.E.2d 576, 579 (1991); Emerick v. Emerick, 5 Conn.App. 649, 659, 5.02 A.2d 933, 938 (1985).

Thus,, we conclude that while the trial court’s award of joint legal custody of the child to both the husband and the wife, with the wife having primary physical custody, was not improper, its provision that physical custody of the child will devolve upon the husband if the wife leaves the United States amounts to an abuse of its discretion. We therefore reverse the custody portion of the trial court’s judgment and remand the case for that court to enter a new custody judgment consistent with § 30-3-150 et seq., Ala.Code 1975, as well as with Hovater and its progeny.

We now turn to whether the trial court’s alimony award of $100 per month, which is conditioned upon the wife’s remaining unemployed and her remaining in the United States, amounts to an abuse of its discretion. Under Alabama law, periodic alimony “is to . support the former dependent spouse and enable that spouse, to the extent possible, to maintain- the status that the parties had enjoyed during the marriage, until that spouse is self-supporting or maintaining a lifestyle or status similar to the one enjoyed during the marriage.” O’Neal v. O’Neal, 678 So.2d 161, 164 (Ala.Civ.App.1996). In making the decision to award alimony, the trial court may consider several factors, including “the length of the marriage, the current financial circumstances of the parties, their future prospects, their ages and health, and the parties’ conduct in causing the divorce.” Ingram v. Ingram, 602 So.2d 418, 421 (Ala.Civ.App.1992).

In this case, at the time of trial, the wife was 27 years old; the husband was 33 years old; the parties had been married for four and a half years; and neither party reported significant physical problems. The wife testified that at the time of the trial she was living in a bedroom of her friends’ home and she needed $375 per month for rent and for utility service, although one of the owners of the home testified that the wife had not been charged rent for two months before the trial. However, there is no evidence indicating that the friends will continue to forbear collection of rent, nor is there any evidence indicating that the wife has any assets, other than a bank account containing approximately $9,000, that she can use to pay living expenses other than rent.

With respect to ability to pay alimony, we note that the husband’s educational background and prospects for continued employment in Alabama appear to be excellent; there is no indication that he will be required to leave his current symphonic and musical-instruction jobs in the near future. In contrast, although the wife has work experience in Israel as a costume designer, a theatrical-history teacher, a translator, and a secretary, she is currently barred by law from accepting employment in the United States without INS approval. Moreover, the trial court expressly conditioned the wife’s right to continued alimony upon her remaining in the United States, where, without INS approval, she cannot work to supplement her income beyond the $100 per month alimony award.

As a general matter, we will not reverse a decision concerning an award of alimony absent an abuse of discretion on the part of the trial court. O’Neal, 678 So.2d at 164. However, upon review of the evidence pertinent to the substantive factors set forth in O’Neal, supra, governing the trial court’s discretion with regard to alimony and the wife’s financial circumstances as of the time of trial, we must conclude that the trial court’s award of $100 per month was clearly insufficient, especially considering the parties’ standard of living during their marriage and the obstacles to the wife’s obtaining employment while she remains in the United States. We therefore reverse that portion of the trial court’s judgment and instruct that court, on remand, to set a monthly alimony award consistent with O’Neal and its progeny. Moreover, our reversal of the alimony award also encompasses the conditional termination provisions of that award; however, upon the occurrence of one or more of the conditions outlined by the trial court in its original judgment, that court will of course have the discretion to consider whether to modify the husband’s alimony obligation at that future time. Cf. Hovater, 577 So.2d at 463.

The final issue raised by the wife concerns the trial court’s direction that the parties be responsible for their own respective attorney fees. “The award of an attorney fee in a divorce case is within the sound discretion of the trial court and will not be reversed except for an abuse of discretion.” Brasfield v. Brasfield, 679 So.2d 1091, 1095 (Ala.Civ.App.1996); accord, Ex parte James, 764 So.2d 557, 559 (Ala.1999) (plurality opinion noting that “[ajwarding an attorney fee in a divorce case is a highly discretionary function of the trial court”). “Factors to be considered by the trial court in a divorce action in making an attorney fee award include the earning capacity of the parties, the results of the litigation, and the financial circumstances of the parties.” Brasfield, 679 So.2d at 1095.

In this case, the trial court properly denied an attorney-fee award to the wife. As we have noted, the trial court’s judgment awarded neither party sole custody of the parties’ child, despite the parties’ requests in their pleadings for sole custody; moreover, neither party was expressly found to be at fault with respect to the breakdown of the marriage, and neither party received an appreciably larger share of marital assets. Although the wife does not currently earn income, she has shown the ability to pay approximately $16,000 to her attorneys without assistance from the husband, and there is evidence indicating that she has work experience and skills that would enable her to earn a living if she returns to Israel or if she obtains employment authorization from the INS. For his part, the husband earns just under $3,000 in gross income each month, from which he must pay $723 in alimony and child support and approximately $1,700 in living and business expenses; there is also evidence that he owes members of his family over $30,000 advanced to him to cover his legal expenses. Based upon those facts, we cannot conclude that the- trial court abused its discretion in directing that the parties would be responsible for their own respective attorney fees.

For the reasons stated herein, the trial court’s judgment is affirmed except as it concerns the automatic reversionary clause of the custody provision of the divorce judgment and the award of periodic alimony. As to those issues, the judgment is reversed, and the cause is remanded for proceedings consistent with this opinion.

OPINION OF NOVEMBER 15, 2002, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

YATES, P.J., and CRAWLEY, THOMPSON, and PITTMAN, JJ., concur.

MURDOCK, J., concurs in the result.

      . The trial court also specified a conditional visitation schedule for the wife should the wife leave the United States to reside elsewhere and thus trigger the provision for an immediate change of custody.


author: MURDOCK, Judge. YATES, Presiding Judge,

text:
    Karla LEWIS, in her individual capacity and in her capacity as administratrix of the estate of Robert Lewis, et al. v. L.S.E.
    2010692.
    Court of Civil Appeals of Alabama.
    Feb. 14, 2003.
    Certiorari Denied June 13, 2003 Alabama Supreme Court 1020859.
    Gene T. Moore, Tuscaloosa, for appellants.
    Hope Curtis of Webb & Eley, P.C., Montgomery, for appellee.
   MURDOCK, Judge.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(F), Ala.R.App. P.; Ex parte State Dep’t of Indus. Relations, 848 So.2d 251 (Ala.2002); Andrews v. Merritt Oil Co., 612 So.2d 409 (Ala.1992); Drummond Company, Inc. v. Boatman, 825 So.2d 823 (Ala.Civ.App.2001); and Jack’s Restaurant v. Tumbow, 674 So.2d 573 (Ala:Civ.App.1995).

CRAWLEY, THOMPSON, and PITTMAN, JJ., concur.

YATES, P.J., concurs specially.

YATES, Presiding Judge,

concurring specially.

I recognize that the law regarding the rights of surviving spouses and children to workers’ compensation benefits as set forth in Drummond Co. v. Boatman, 825 So.2d 823 (Ala.Civ.App.2001), and followed by our supreme court in Ex parte State Department of Industrial Relations, 848 So.2d 251 (Ala.2002), is the current law of this state, which I am bound to follow. However, I still believe that this court erred in Drummond Co. when it overruled Chatham Steel Corp. v. Shadinger, 768 So.2d 969 (Ala.Civ.App.1999); see my dissent in Drummond Co.