author: HARWOOD, Justice.

text:
    Ex parte A.B. (In re C.D., as executrix of the estate of E.F. v. A.B. et al.).
    1050514.
    Supreme Court of Alabama.
    July 21, 2006.

      Edward Still, Birmingham, for petitioner.
    Julia T. Cochrun of Pate & Cochrun, LLP, Birmingham, for respondent.
   HARWOOD, Justice.

This mandamus proceeding involves the proper balancing between the privacy interest of the defendant in the underlying civil action, which has become implicated as hereinafter explained, and the interest of the plaintiff in conducting an informed voir dire of the jury venire. In order to honor, at this level, the privacy interest at issue, this Court has granted the motion of the remaining defendant below, the petitioner for the writ of mandamus in this Court, for anonymity in the styling of this opinion.

C.D., as executrix of the estate of E.F., deceased, sued A.B. and others in the Coffee Circuit Court alleging that medical malpractice on the part of the defendants resulted in the death of E.F. A.B. is a medical provider residing and practicing in Coffee County. C.D. has settled with all of the other defendants in the case; the case continues with A.B. as the sole defendant.

C.D. took A.B.’s deposition in connection with the case and inquired during the course of the deposition as to the name of the father of A.B.’s minor child. A.B. declined to answer that question on the basis that it represented private information. Although the contents of the parties’ filings with this Court and the copies of the parts of the record they chose to attach for consideration by this Court (see Rule 21, Ala. R.App. P.) do not reveal what further explanation A.B. might have provided in that regard at the deposition, C.D. followed up her deposition inquiry by serving on A.B. an interrogatory asking: “What is the name and address of the father of your child?” After A.B. resisted disclosure of that information, C.D. moved the Coffee Circuit Court to compel A.B. to answer the interrogatory. Over the course of the ensuing procedural developments, C.D. explained why she desired the information, and A.B. explained, in affidavit form, the special circumstances of her child’s paternity.

A.B. attested under oath that she had never told anyone the name of the man who was the father of her child; that no documentation, official or otherwise, existed of his name in that regard; and that the father’s name was not recorded on the child’s birth certificate. She swore further that not only was he not a resident of the Enterprise division of Coffee County, but he was also not a resident of the State of Alabama, had no relatives by blood or

marriage in Coffee County other than A.B.’s child and, to the best of A.B.’s knowledge, had never worked in Coffee County. She further asserted under oath that “[t]he gentlemen and I have agreed that neither of us would divulge his identity. He and I have made a conscious decision to keep this information confidential and absolutely secret.” She explained that she did not wish the identity of the father to become known “because of the potential effects on my child, on myself, and my family.” In her filings with the trial court, C.D. acknowledged that “[t]he identity of the father of [A.B.’s] child is not being sought for discovery of admissible evidence .... ” but was being sought solely to use during voir dire of the jury venire.

In C.D.’s response in opposition to AB.’s petition for the writ of mandamus in this Court, she asserts that she seeks “to obtain discovery of the identity and address of the father of A.B.’s out-of-wedlock child,” in order to protect what she says is her right to a fair and impartial trial guaranteed by Art. I, § 6, Ala. Const, of 1901, and her right to challenge for cause any jurors related to A.B. within the degrees of consanguinity or affinity proscribed by § 12-16-150(4), Ala.Code 1975. That Code subsection provides:

“It is good ground for challenge of a juror by either party:
“(4) That he is connected by consanguinity within the ninth degree, or by affinity within the fifth degree, computed according to the rules of the civil law, either with the defendant or with the prosecutor or the person alleged to be injured.”

Thus, the situation is that A.B., having made the decision to forgo both an abortion and putting her child up for adoption, and having committed with the father that his identity would be kept secret, wishes to preserve that secret intact, yet C.D. contends that she is entitled to have the secret revealed for her use during voir dire inquiry.

On November 17, 2005, the trial judge ordered A.B. to answer the interrogatory and provide the court with the name and address of the father of her child. The judge attempted to put in place partial safeguards surrounding the disclosure, ordering that A.B. might “provide the response under seal to the court and submit a Proposed Protective Order for consultation by the court, prior to information being provided to [C.D.],’’ and enjoining and restraining C.D. from “using the name and address of the subject individual to harass or embarrass [A.B.],” allowing C.D. to use the information only in qualifying a jury.

A.B. moved for reconsideration of that order, arguing that there could be “no half-way on the confidentiality of this information,” because it either would be known by no one else or it would be known by someone else who, in turn, could tell someone else and the use of the name during voir dire would mean that it was no longer secret. A.B. argued to the trial court that the United States Supreme Court has specifically recognized that “marriage” and “sexual” concerns are fundamental rights, entitled to privacy protection, and she cited this Court’s opinion in Phillips v. Smalley Maintenance Services, Inc., 435 So.2d 705 (Ala.1983). C.D. responded by pointing out that the trial court had already indicated that it would provide the name and address of the father “in the appropriate form and fashion for [C.D.] to utilize in the voir dire process,” and argued that the trial court could “handle soliciting information as to any connection anyone on the venire may have to the father in such a way as not to cause undue concerns to this child.”

On January 9, 2006, the trial judge denied A.B.’s motion for reconsideration and directed that she appear in court at 9:00 a.m. on February 6, 2006, to show cause why she should not be held in contempt for having failed to comply with the court’s previous order compelling her to respond to the discovery request. A.B. then petitioned this Court for a writ of mandamus directing the trial court not to require her to disclose the name of her child’s father. We ordered answer and briefs pursuant to Rule 21(b), Ala. R.App. P., and we now proceed to address the merits of the petition.

In Phillips, supra, we pointed out:

“The United States Supreme Court has specifically recognized ‘marriage’ and ‘sexual’ concerns as fundamental rights, entitled to privacy protection. Eisenstadt, Sheriff v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965).”

435 So.2d at 708.

In Phillips, this Court expressly affirmed that Alabama recognizes a civil cause of action for “invasion of privacy” when one wrongfully intrudes, among other things, into the private affairs and concerns of another. We noted with approval the statement in Comment (c) to § 652B Restatement (Second) of Torts (1977) that an individual might be deemed to have invaded the privacy of another individual by invading “ ‘a private seclusion that the plaintiff has thrown about his person or affairs. ’ (Emphasis added [in Phillips ].)” 435 So.2d at 711. We likewise noted with approval the statement in Comment (c) that a wrongful-intrusion privacy violation “can occur in a public place, where the matter intruded upon is of a sufficiently personal nature....” 435 So.2d at 711. We do not quote these propositions to suggest that C.D.’s proper discovery efforts, and the resulting court orders, represent an invasion of privacy; rather, we simply note the sentiments expressed in order further to acknowledge the legitimacy of A.B.’s privacy concerns.

Certainly, not every trial-court ruling on a discovery dispute entitles the aggrieved party to mandamus review by an appellate court.

“ ‘[0]ur judicial system cannot afford immediate mandamus review of every discovery order.’ Ex parte Ocwen Fed. Bank, 872 So.2d 810, 813 (Ala.2003). When a petitioner seeks mandamus review of a discovery order, this Court will grant the review only after making two determinations. First, because discovery matters are within a trial court’s sound discretion, we must determine that the trial court in issuing the discovery order clearly exceeded its discretion. Second, we must ensure that the petitioner does not have an adequate remedy by appeal. 872 So.2d at 813.
“ ‘In certain exceptional cases ... review by appeal of a discovery order may be inadequate.’ 872 So.2d at 813. The four most common examples of cases in which review by appeal may be inadequate, although the list is not exhaustive, are
“ ‘(a) when a privilege is disregarded ...; (b) when a discovery order compels the production of patently irrelevant or duplicative documents, such as to clearly constitute harassment or impose a burden on the producing party far out of proportion to any benefit that may obtain to the re-
questing party ...; (c) when the trial court either imposes sanctions effectively precluding a decision on the merits or denies discovery going to a party’s entire action or defense so that, in either event, the outcome has been all but determined, and the petitioner would be merely going through the motions of a trial to obtain an appeal; or (d) when the trial court impermissibly prevents the petitioner from making a record on the discovery issue so that the appellate court cannot review the effect of the trial court’s alleged error.’
“Ocwen, 872 So.2d at 813-14.”

Ex parte Crawford Broad. Co., 904 So.2d 221, 224 (Ala.2004).

Although A.B.’s right to maintain the secret of the identity of her child’s father arguably rises to a level of privilege, we need not, and do not, decide that issue. It is sufficient that we find that this information is patently irrelevant under the applicable scope of permissible discovery, and, employing the balancing test prescribed by Ex parte Ocwen Federal Bank, 872 So.2d 810 (Ala.2003), for that circumstance, we find that compelled discovery of the father’s identity would clearly constitute harassment or impose a burden on A.B. far out of proportion to any benefit that may obtain to C.D.

“Evidence that is not relevant is not discoverable.
“ ‘Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.... It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.’ “Rule 26(b)(1), Ala. R. Civ. P. Rule 401, Ala. R. Evid., states that ‘ “[rjelevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’ ”

Ex parte Crawford Broad. Co., 904 So.2d at 224-25.

C.D. argues in her brief to this Court that the identity of the father of A.B.’s child “is certainly ‘relevant to the subject matter involved in the pending action,’ Rule 26(b)(1), Ala. R. Civ. P. (emphasis added), because a critical part of the ‘subject matter’ of any ‘pending’ jury trial is going to be the nature of the evidence available to the parties during voir dire.” She elaborates that “nothing could be more ‘relevant’ to C.D.’s case than insuring a jury untainted by the inclusion of A.B.’s relatives; this is one of C.D.’s statutory and constitutional rights and privileges,” citing § 12-16-150, Ala.Code 1975, and Art. I, § 6, Ala. Const, of 1901, as interpreted in Ex parte Vaughn, 395 So.2d 95 (Ala.1979).

We disagree that the father’s identity is relevant. As noted, § 12-16-150(4) concerns only relationships by either consanguinity or affinity between a juror and, as applicable to this ease, A.B. There is neither a blood relationship nor a marriage between A.B. and the- father of her child, with the result that no juror could be “connected [with A.B.] by consanguinity [or] ... by affinity” through a kinship between the juror and the father of A.B.’s child. “ ‘ “Affinity properly means the tie which arises from marriage betwixt the husband and the blood relatives of the wife, and between the wife and blood relatives of the husband.” ’ ” Norris v. Presley, 292 Ala. 155, 157, 290 So.2d 643, 645 (1974) (quoting Duke v. State, 257 Ala. 339, 344, 58 So.2d 764, 768 (1952)). ' “Consanguinity measures the relationship by blood and affinity measures the relationship by marriage.” General Motors Corp. v. Jernigan, 883 So.2d 646, 670 n. 20 (Ala.2003). Any connection a juror might have with A.B. by consanguinity would have to exist totally independent of A.B.’s relationship with the father of her child; the fact that she and the father had a relationship in the past does not mean that they are “relatives” of each other.

Ex parte Vaughn, relied on by C.D., did indeed conclude that § 12-16-150(4) represents “an implementation of the fair and impartial trial guarantee of Art. I, Sec. 6, of our State Constitution,” 395 So.2d at 96, as that constitutional provision relates to a relationship between a juror and the victim in a criminal case, but that provision of the Alabama Constitution explicitly applies only to criminal prosecutions. Moreover, as the Court of Criminal Appeals explained in Vaughn v. State, 395 So.2d 97, 102 (Ala.Crim.App.1980), following this Court’s remand in Ex parte Vaughn: “[T]he rationale of permitting a challenge for cause of a juror who is related to a party, or to an injured or deceased victim of an alleged crime, is to be found solely in the fact that if and when, but only if and when, the juror is aware of the relationship there-is some danger of bias by reason of the relationship.”

As we did in Crawford Broadcasting Co., we conclude that, under the peculiar circumstances of this case, the information C.D. seeks from A.B. involves “a highly sensitive subject” and “when ‘patently irrelevant,’ is such a personal and private matter that compelling its production would clearly constitute harassment.” 904 So.2d at 226. Given the alternative solutions available, disclosure would impose a burden on A.B. far out of proportion to any benefit that might obtain to C.D.

We appreciate that during the course of discovery parties often inquire concerning another party’s family members and that such usually innocuous information is routinely provided without objection even though not “relevant” under Rule 26, Ala. R. Civ. P. We are here simply dealing with a situation where discovery of the identity of an individual who is not a family member of a party is opposed as irrelevant under Rule 26 and that information is far from innocuous. We also recognize that information concerning the blood relatives of and those in close affinity with a party to a civil action may properly be ordered to be disclosed as a part of a pretrial order issued pursuant to Rule 16, Ala. R. Civ. P., but that is not the procedural posture in which the issue here comes to us.

A.B. would not have an adequate remedy by appeal of the trial court’s order following the conclusion of the trial. As we noted in Ex parte Miltope Corp., 823 So.2d 640, 645 (Ala.2001), once information has become available through the discovery process, a subsequent successful appeal cannot restore the valuable secretive nature of the information. Moreover, as also noted in Miltope Corp., there may be no sanctions sufficient to protect A.B. in the event C.D. should fail to abide by the terms of any protective order, nor may there be a reliable means of monitoring what C.D. might do with the information. In other words, there would be no way “to put the genie back in the bottle.” By so noting, we, of course, do not intend to impugn C.D.’s reliability or her integrity, and we intend no personal slight to her whatsoever; we simply have to take into account the fallibility of human beings in general and recognize that once secret information is no longer secret, there is no way to ensure the boundaries of further disclosure.

We appreciate that the trial judge sought partially to preserve A.B.’s right of privacy as to the information sought, but we conclude that the safeguards he proposed did not go far enough and would unavoidably unravel the cloak of absolute secrecy A.B. and the father of her child have so scrupulously maintained. Under the arrangement envisioned by the trial court’s order, the name and address of the father of A.B.’s child would necessarily become known to the judge himself; to C.D., a party adverse to A.B. who has been unwilling to accept A.B.’s sworn statements; to C.D.’s attorneys; to the attorneys representing A.B. in the medical-malpractice action (she is represented by separate counsel in this mandamus proceeding); and, potentially, to court personnel present in the courtroom when the name of the father is announced as a part of the voir dire without identifying him as the father of A.B.’s child. Personnel in the circuit clerk’s office would have been privy to the numerous court filings concerning the issue of the father’s identity, extending over a lengthy period and might well “make the connection” if present in the courtroom when the father’s name is announced as part of the voir dire.

Because there are alternative approaches the trial court could employ that would fully protect C.D.’s right to a jury “untainted” by relatives of A.B. or her child while at the same time fully protecting the privacy rights of A.B. and her child, we deem it appropriate to grant the petition. For example, the trial court could identify A.B. to the venire during the voir dire, name her child and any other relatives of A.B. by blood or marriage, and then simply ask if any member of the venire was related to any of them by either blood or marriage or .knew anyone who was so related to any of them. A juror somehow acquainted with A.B. or her child but unaware of the paternity of the father of the child would not be prejudiced for or against A.B. as a result of any acquaintanceship or relationship with the father. Vaughn v. State, supra.

Accordingly, we grant A.B.’s petition for the writ of mandamus and direct the trial court to vacate its order requiring A.B. to answer C.D.’s interrogatory calling for the disclosure of the name and address of the father of A.B.’s child.

PETITION GRANTED; WRIT ISSUED.

NABERS, C.J., and SEE, LYONS, WOODALL, and STUART, JJ., concur.

SMITH and BOLIN, JJ., concur in the result.

PARKER, J., dissents.

      . This case was originally assigned to another Justice on this Court; it was reassigned to Justice Harwood on June 21, 2006.

      . We have previously granted A.B.’s motion for a stay of proceedings in the trial court pending consideration of her petition, and we have also denied C.D.’s motion to dismiss A.B.'s petition as untimely.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Charles R. ZELLER v. Tracy BAILEY.
    1041699.
    Supreme Court of Alabama.
    July 28, 2006.

      Marion E. Wynne and Robert W. Waller of Wilkins, Bankester, Biles & Wynne, P.A., Fairhope, for appellant.
    Thomas M. O’Hara of McDowell Knight Roedder & Sledge, LLP, Mobile, for ap-pellee.
   On Application for Rehearing

PER CURIAM.

The opinion of April 28, 2006, is withdrawn, and the following is substituted therefor.

Charles R. Zeller appeals from the trial court’s denial of his motion filed pursuant to Rule 60(b), Ala. R. Civ. P., to set aside a default judgment against him in the amount of $2,589,645.06. We affirm.

I. Underlying Facts

On August 6, 2003, Tracy Bailey, president of Instrumentation and Electrical of Alabama, Inc. (“I & E”), entered into a purchase contract with Scott Cope, pursuant to which Bailey would sell I & E to Cope for $100,000; Cope executed a promissory note for this amount. Under the terms of the purchase contract, Bailey had a first right of refusal on any subsequent sale of I & E. Contemporaneously with the purchase contract, Bailey entered into an employment agreement with I & E, in which Bailey agreed to act as president of I & E for three years.

On June 8, 2004, Bailey sued Cope, Zel-ler, and American Consertech, Inc. (“Con-sertech”). Cope and Zeller are the sole owners of Consertech. In the complaint, Bailey asserted against Cope claims of breach of the purchase contract, breach of the promissory note, breach of the employment agreement, and promissory fraud. Specifically, Bailey claimed, among other things, that following the sale of I & E to Cope, Cope failed to assume all of I & E’s liabilities, defaulted on I & E’s liabilities, failed to pay I & E’s vendors, sold I & E to Zeller without notifying or otherwise providing Bailey the contractual right of first refusal, and defaulted on the promissory note. In a separate count, Bailey asserted these same claims against Cope, Zeller, and Consertech, alleging that they were using I & E as an alter ego. Specifically, Bailey claimed that Cope and Zeller used I & E as a sham corporation for the fraudulent purpose of creating cash flow for Consertech, while avoiding the debts and liabilities of I & E. Each defendant was served with a copy of the complaint via certified mail.

On August 30, 2004, the trial court entered default judgments against each defendant based on the defendants’ failure to answer or to otherwise respond to the complaint. Cope thereafter hired attorney Marion E. Wynne to challenge the default judgments on behalf of Cope, Zeller, and Consertech. On September 7, 2004, Wynne filed a motion, accompanied by Cope’s affidavit, requesting that the default judgments be set aside because the defendants’ failure to respond had been due to inadvertence and excusable neglect. The motion and the affidavit averred, among other things, that Cope, as CEO of Consertech, was responsible for defending Consertech, as well as protecting Zeller’s interests. The trial court granted this motion.

On October 28, 2004, counsel for Bailey served interrogatories and requests for production of documents on the defendants. The defendants did not respond.

On November 8, 2004, Wynne filed a motion to withdraw as counsel for the defendants, asserting that his clients had failed and/or refused to honor their fee arrangement with him and that Zeller had failed to communicate with Wynne after Wynne had made repeated efforts to contact him by telephone and fax. Wynne mailed a copy of his motion to withdraw to both Cope and Zeller; neither responded. The trial court granted Wynne’s motion to withdraw as counsel for the defendants and ordered that all future notices regarding the action be sent to Cope and to Zeller.

On December 8, 2004, Bailey filed a motion to compel discovery of the document requests and interrogatories and mailed a copy of the motion to both Cope and Zeller. On December 13, 2004, the trial court entered an order compelling the defendants to respond to the requested discovery within 20 days. Neither defendant responded.

On January 10, 2005, Bailey filed a motion requesting that the trial court reenter the default judgments against each defendant. As grounds for his motion, Bailey recited the defendants’ flouting of the trial court’s discovery order. As further grounds, Bailey asserted that Cope and Zeller had failed to appear for their properly scheduled depositions in December 2004. Bailey mailed a copy of this motion to both Cope and Zeller.

On January 13, 2005, the trial court entered an order, compelling the deposition of Zeller within 20 days from the date of the order. The trial court mailed notice of the order to Zeller. Zeller did not respond.

The trial court scheduled a hearing on the reentry of the default judgments for February 15, 2005, and served each defendant with notice of the hearing. Attorney Brent Day appeared at the hearing on behalf of Cope. Zeller was neither present nor represented by counsel at the hearing. Thereafter, the trial court reentered a default judgment against Zeller in the amount of $2,589,645.06. Notice of this judgment was issued to Zeller. The trial court scheduled an April 2005 trial date for Cope and granted him additional time to respond to the requested discovery.

On March 16, 2005, the trial court reentered a default judgment against Cope for failure to respond to discovery. Additional notices that a default judgment had been entered against him were mailed by the trial court to Zeller at his residence.

On June 8, 2005, Day filed a motion to withdraw as counsel, asserting that Cope had failed to respond to discovery requests, that Cope had failed to maintain contact with Day, and that Cope was not available for a scheduled deposition. The trial court granted this motion.

On May 27, 2005, Zeller, through Wynne, filed a motion, pursuant to Rule 60(b), Ala. R. Civ. P., seeking to have the second default judgment against him set aside on the grounds of inadvertence and excusable neglect. In his motion and supporting affidavit, Zeller claimed that he was a resident of Texas; that he had nothing to do with the purchase of I & E other than lending money to Cope in a separate transaction to finance the purchase; that he had no interest in the revenues of I & E; that he never controlled any of the funds of I & E; and that he had relied on Cope to handle the defense of Bailey’s action against them. The trial court denied the motion; Zeller appealed.

II. Standard of Review

A trial court has broad discretion in deciding whether to grant or deny a motion to set aside a default judgment. Kirtland v. Fort Morgan Auth. Sewer Serv., Inc., 524 So.2d 600 (Ala.1988). In reviewing an appeal from a trial court’s order refusing to set aside a default judgment, this Court must determine whether in refusing to set aside the default judgment the trial court exceeded its discretion. 524 So.2d at 604. That discretion, although broad, requires the trial court to balance two competing policy interests associated with default judgments: the need to promote judicial economy and a litigant’s right to defend an action on the merits. 524 So.2d at 604. These interests must be balanced under the two-step process established in Kirtland.

We begin the balancing process with the presumption that cases should be decided on the merits whenever it is practicable to do so. 524 So.2d at 604. The trial court must then apply a three-factor analysis first established in Ex parte Illinois Central Gulf R.R., 514 So.2d 1283 (Ala.1987), in deciding whether to deny a motion to set aside a default judgment. Kirtland, 524 So.2d at 605. The broad discretionary authority given to the trial court in making that decision should not be exercised without considering the following factors: “1) whether the defendant has a meritorious defense; 2) whether the plaintiff will be unfairly prejudiced if the default judgment is set aside; and 3) whether the default judgment was a result of the defendant’s own culpable conduct.” 524 So.2d at 605.

III. Three-factor Analysis

(a) Meritorious Defense

As previously noted, Bailey asserted various claims against Cope, Zeller, and Consertech, alleging that I & E was their alter ego. Specifically, Bailey claimed that Cope and Zeller had fraudulently used I & E to create cash flow for Consertech, while avoiding the payment of I & E’s debts and liabilities. Zeller asserts no defense relating to the alter ego theory. Instead, he relies on statements contained in Cope’s affidavit regarding misrepresentations allegedly made by Bailey to Cope. Although Zeller admits that he has no personal knowledge regarding these alleged misrepresentations, he nevertheless asserts that these statements in Cope’s affidavit provide a meritorious defense to the underlying claims. Bailey, on the other hand, argues that Zeller cannot rely on hearsay statements as a defense and that Zeller is collaterally estopped from relitigating the claims on which a default judgment against Cope has been entered.

Suffice it to say, even assuming that hearsay statements would be sufficient to meet the meritorious-defense requirement for setting aside a default judgment and further assuming that Zeller, under an alter ego theory, stands in Cope’s shoes and can assert defenses available to Cope, Zeller has cited no authority, as required by Rule 28, Ala. R.App. P., to rebut Bailey’s contention that Zeller is precluded from relitigating Cope’s liability in view of the default judgment that has been entered against Cope. For purposes of this appeal we accept Bailey’s contention that Zeller does not have a meritorious defense.

(b) Absence of Prejudice to the Nondefaulting Party

In Kirtland, this Court stated:

“The setting aside of a default judgment delays a final termination of the litigation. This deeply frustrates or impedes a plaintiffs efforts to recover on his claim and causes him to incur additional costs. Moreover, the delay may facilitate fraud and collusion, result in loss of evidence, and hinder discovery.”

524 So.2d at 606-07 (emphasis added).

This action was filed in June 2004. Zel-ler repeatedly failed to respond to discovery requests, as well as court orders compelling those requests; he suffered two défault judgments as a result of his failure to respond. Zeller waited three and a half months after the second default judgment was entered before he requested that it be set aside. In his motion to set aside the second default judgment, along with his supporting affidavit, Zeller argued that he had had nothing to do with the purchase of I & E, other than lending Cope money to finance the purchase; that he had no interest in the revenues of I & E; and that he had never controlled any of the funds of I & E. According to Cope, however, Zeller was the sole shareholder of I & E.

We note that Zeller eventually testified by deposition on June 21, 2005, in relation to his motion to set aside the second default judgment entered against him. Zel-ler’s deposition testimony establishes that he assumed the liabilities of I & E and that he signed notes to I & E’s creditors obligating himself to pay I & E’s liabilities. In fact, Zeller admits that letters were sent to I & E’s creditors, notifying them that he had acquired I & E and that the purpose of the acquisition was to merge I & E with a another company in which he had a substantial interest — Consertech. Zeller also confirmed that the purchase of I & E was made to help take care of the cash-flow problems of Consertech — the company he and Cope jointly own.

In his June 21, 2005, deposition, Zeller testified that he had received no income from I & E for 24 months preceding the deposition and that he was borrowing money from friends to pay his bills. We note, however, that in 2003 I & E’s creditors were provided with Zeller’s personal financial statement showing a net worth of $10 million. Zeller now claims that that financial statement was nothing more than “business fiction.” Zeller also represented in his affidavit supporting his motion to set aside the second default judgment that he had no interest in I & E, a representation disputed by his own deposition testimony. Zeller also testified in deposition that, during the pendency of this action, Conser-tech, the company owned jointly by Zeller and Cope, had been taken over by its surety, and that he has a personal guarantee on a potential $2 million deficit. Under the circumstances, any further delay in bringing this case against Zeller to judgment would unfairly prejudice Bailey.

(c) Culpability of the Defaulting Party’s Conduct

To warrant a refusal to set aside a default judgment, the defaulting party’s actions that resulted in the entry of the default judgment must constitute willful conduct or conduct committed in bad faith. Negligence alone is not sufficient. Bad faith or willfulness is identified by “incessant and flagrant disrespect for court rules, deliberate and knowing disregard for judicial authority, or intentional nonre-sponsiveness.” Kirtland, 524 So.2d at 608 (citing Agio Indus., Inc. v. Delta Oil Co., 485 So.2d 840, 342 (Ala.Civ.App.1986)). A trial court’s finding with respect to the culpability of the defaulting party is subject to great deference. Jones v. Hydro-Wave of Alabama, Inc., 524 So.2d 610, 616 (Ala.1988).

In the instant case, Zeller’s conduct in refusing to respond to pleadings, motions, and court orders can be characterized only as blatant and intentional. He repeatedly ignored discovery requests and court orders compelling discovery, resulting in two default judgments against him. The only excuse Zeller offers is that he was relying solely on Cope to represent his interests in this action. According to Zeller, Cope and Zeller have been friends and business partners for over 40 years. Zeller admits that he has provided financial backing for Cope in at least three various business ventures that have failed, leaving Zeller with debts and lawsuits. Despite having this information, Zeller trusted Cope to “take care” of his interests in this action. As noted previously, in ■ November 2004 Cope and Zeller’s attorney filed a motion to withdraw from this action, citing nonpayment of fees by the defendants. Zel-ler’s continued reliance on Cope is patently unreasonable in light of the trial court’s repeated efforts, after Zeller’s attorney had withdrawn, to give Zeller notice of the various stages of the proceedings by mail at his residence. These several notices made it clear beyond doubt that Zeller could not depend on Cope to take care of Zeller’s important business before the Baldwin Circuit Court. The most damning information is Zeller’s failure to appear during the discovery phase of this action for a scheduled deposition. It is hard to fathom how Zeller could blame Cope for his own failure to appear. Zeller admitted that his actions were foolish. He testified that “the pattern’s pretty clear. I just [did not] want to deal with it.”

In Jones v. Hydro-Wave, supra, this Court stated:

“The utility of the default judgment rule depends on its effectiveness in encouraging compliance with procedural rules so that actions may be decided expeditiously. To facilitate an orderly functioning of the judicial system and to preserve the integrity of the court, parties who affront the court by intentionally disregarding trial dates, court orders, or procedural rules, with resulting unnecessary delay, should justifiably incur the ultimate sanction of losing their opportunity to defend. For the default judgment to be a potent sanction, the trial court, when confronting litigants who have manifested willfulness and bad faith in committing defaults, must not be unduly hampered in granting default judgments, and, subsequently, upholding those judgments .... ”

524 So.2d at 616 (emphasis added).

Based on Zeller’s consistent, incessant, and flagrant disrespect for court rules, orders, and proceedings, we find that the trial court did not exceed its discretion in denying Zeller’s motion to set aside the default judgment.

IV. Damages

It is noteworthy to add that the damages award in this case is substantial. The trial court awarded Bailey $2,589,645.06. In addition to compensatory damages, this amount included $500,000 for mental anguish and $1 million .for punitive damages. After the entry of the default judgment, Zeller was entitled to challenge the amount of the damages award by filing a timely motion with the trial court. Oliver v. Towns, 738 So.2d 798 (Ala.1999). In Oliver, this Court stated that following the entry of a default judgment and upon a timely motion, the trial court must conduct a hearing to determine whether the damages awarded are excessive. See also Lifestar Response of Alabama v. Lemuel, 908 So.2d 207 (Ala.2004)(a defendant who challenges the excessiveness of the damages awarded upon entry of a default judgment is entitled to a Hammond-Green Oil review of the punitive-damages aspect of that judgment, but only if the trial court is requested to hold such a hearing).

In the instant case, Zeller did not file any motion with the trial court challenging the amount of the damages award, nor did he request that the trial court hold a Hammond-Green Oil hearing. Zeller did state in his briefs before this Court that the damages award was excessive. However, because he did not properly present this argument to the trial court, he failed to preserve the issue for appellate review. Accordingly, Zeller has waived any issue relating to the excessiveness of the damages award.

Based on the foregoing, we conclude that the trial court did not exceed its discretion in refusing to set aside the default judgment entered in this action against Zeller.

APPLICATION OVERRULED; OPINION OF APRIL 28, 2006, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

NABERS, C.J., and LYONS, WOODALL, SMITH, and PARKER, JJ., concur.

      . We note that Wynne previously withdrew as counsel for both Cope and Zeller. Zeller, however, subsequently retained Wynne to review the record and to file the Rule 60(b) motion on Zeller's behalf.

      . See Hammond v. City of Gadsden, 493 So.2d 1374 (Ala.1986), and Green Oil Co. v. Homs-by, 539 So.2d 218 (Ala.1989).


author: SMITH, Justice.

text:
    Dick L. LAMBERT v. COREGIS INSURANCE COMPANY, INC.
    1040720.
    Supreme Court of Alabama.
    July 28, 2006.

      Patrick B. Collins, Daphne, for appellant.
    Ian D. Rosenthal of Cabaniss, Johnston, Gardner, Dumas & O’Neal, LLP, Mobile, for appellee.
   SMITH, Justice.

Dick L. Lambert sued Coregis Insurance Company, Inc., seeking uninsured/un-derinsured-motorist (“UM”) benefits under an insurance policy issued by Coregis to Lambert’s employer, South Alabama Utilities. That policy provided UM coverage for South Alabama Utilities’ company vehicles. Coregis answered the complaint and shortly thereafter moved for a summary judgment arguing that Lambert was not an “insured” as that term is defined in the Coregis policy covering the company. The trial court entered a summary judgment in favor of Coregis. We affirm.

Facts and Procedural History

This case arose from an accident that occurred on June 20, 2000. On that day, Lambert, in the course of his employment for South Alabama Utilities, was assisting several other employees in installing a 12-inch water main along Snow Road in Mobile County. Lambert had driven to that site in a company truck at approximately 7:30 that morning and had been working at the site the entire morning.

A few minutes before 11 a.m., Lambert went to his company truck to lift a jug of water out of the truck. Immediately afterward, Lambert positioned himself a few feet off the side of the road between his company truck and another company truck that was parked about 18 feet away ¡from Lambert’s truck and facing in the opposite • direction, so that the trucks were bumper to bumper. At this time, Lambert was positioned about seven to nine feet from the back of the company truck he had driven that morning and was waiting for a backhoe operator to finish putting dirt back into the trench where the water main had been installed.

Brian Shane Contestibile, an employee of Southeastern Exterminators, Inc., was driving along Snow Road that morning. As he approached the utility worksite, Contestibile swerved off the road and hit Lambert as he was standing between the two South Alabama Utilities trucks. Lambert became entangled in the side mirror of Contestibile’s vehicle and was dragged several feet until Lambert hit the bumper of his company truck; at that point he rolled underneath the company truck. Lambert immediately got out from under the truck and stood up, but he had sustained various injuries. It is unclear whether any of the injuries were caused by the contact with Contestibile’s vehicle or with the bumper of the company truck.

Lambert sued Contestibile and Contesti-bile’s employer. Those claims were ultimately settled. Lambert also sued his own employer and his employer’s workers’ compensation insurance carrier, seeking workers’ compensation benefits. The workers’ compensation portion of the case was tried; it was determined that Lambert was permanently and totally disabled.

Lambert then sued Coregis, South Alabama Utilities’ UM carrier. Coregis and South Alabama Utilities had entered into a comprehensive insurance agreement that originally went into effect on August 22, 1998; it was renewed on August 22, 1999, for a one-year term. Part of the insurance agreement is a “business auto coverage form” with an UM endorsement. There is also an “auto medical payments coverage” included in the agreement.

The original declarations in the insurance agreement identify the named insured as South Alabama Utilities, and page 1 of the business auto coverage form defines “you” as the named insured shown in the declarations.

Section II of the business auto coverage form addresses liability coverage, as follows:

“A. COVERAGE
“We will pay all sums an ‘insured’ legally must pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies, caused by an ‘accident’ and resulting from the ownership, maintenance or use of a covered ‘auto.’
“1. WHO IS INSURED “The following are ‘insureds’:
“a. You for any covered ‘auto.’
“b. Anyone else while using with your permission a covered ‘auto’ you own.... ”

The UM endorsement expressly modifies the insurance provided under the business auto coverage form; it states:

“A. Coverage
“1. We will pay all sums the ‘insured’ is legally entitled to recover as damages from the owner or driver of an ‘uninsured motor vehicle.’ The damages must result from ‘bodily injury’ sustained by the ‘insured’ caused by an ‘accident’....
“B. Who Is An Insured
“1. You.
“2. If you are an individual, any ‘family member.’
“3. Anyone else ‘occupying’ a covered ‘auto’ or a temporary substitute for a covered ‘auto’. The covered ‘auto’ must be out of service because of its breakdown, repair, servicing, loss, or destruction.
“4. Anyone for damages he or she is entitled to recover because of ‘bodily injury’ sustained by another ‘insured.’
“F. Additional Definitions
“As used in this endorsement:
“2. ‘Occupying’ means in, upon, getting in, on, out or off.”

(Emphasis added.)

The auto medical payments coverage also expressly modifies the insurance provided under the business auto coverage form; it states:

“B. WHO IS AN INSURED
“1. You while ‘occupying’ or, while a pedestrian, when struck by any ‘auto.’
“2. If you are an individual, any ‘family member’ while ‘occupying’ or, while a pedestrian, when struck by any ‘auto.’
“3. Anyone else ‘occupying’ a covered ‘auto’ or a temporary substitute for a covered ‘auto.’ The covered ‘auto’ must be out of service because of its breakdown, repair, servicing, loss, or destruction.”

(Emphasis added.)

The auto medical payments coverage uses the same definition for “occupying” as does the UM endorsement — “in, upon, getting in, on, out or off.”

The trial court held that Lambert did not qualify as an insured under the UM endorsement because “[e]ven construing the insurance contract liberally in favor of the putative insured, Mr. Lambert, and against the insurer Coregis, no plausible definition of ‘occupying’ describes Mr. Lambert....” The trial court concluded that “[t]he common usage of the term ‘occupying’ a vehicle would not encompass a body glancing off the bumper en route to the ground.”

Standard of Review

“We review a summary judgment de novo. Mobile Airport Auth. v. HealthSTRATEGIES, Inc., 886 So.2d 773, 779 (Ala.2004). We accord the lower court’s legal conclusions no presumption of correctness. Id. ” Safeway Ins. Co. of Alabama v. Herrera, 912 So.2d 1140, 1143 (Ala.2005).

In Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997), this Court set out the standard for reviewing a summary judgment:

“In reviewing the disposition of a motion for summary judgment, “we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact,’ Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988), and whether the movant was ‘entitled to judgment as a matter of law.’ Wright v. Wright, 654 So.2d 542 (Ala.1995); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is ‘substantial’ if it is 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.’ Wright, 654 So.2d at 543 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993); Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).”

Analysis

Lambert raises one issue on appeal: Lambert argues that, contrary to the trial court’s holding, he qualifies as “an insured” under the policy because he was either “upon” or “on” the covered vehicle at the time of the accident and thus was “occupying” the vehicle under the terms of the policy. It should be noted at the outset that the word “getting” appears to modify the prepositions “in, on, out, or off’ in the policy provision defining “occupying” because the policy could not possibly cover everyone who was “out” or “off’ the vehicle. See Rohlman v. Hawkeye-Sec. Ins. Co., 207 Mich.App. 344, 351, 526 N.W.2d 183, 186 (1994) (concluding that “the parties could not realistically have intended that any stranger who is injured in an accident involving the covered vehicle and an uninsured motorist would be occupying the covered auto if it could only be shown that the stranger was somewhere ‘off the vehicle, or ‘out’ of the vehicle”). Lambert does not argue that he was “getting on” the covered vehicle. Lambert contends only that he was “on” or “upon” the covered vehicle when he struck it. In any event, “upon” in modern usage is the equivalent of “on.” Merriam-Webster’s Collegiate Dictionary (11th ed.2003). Therefore, the two words should be treated as the same for the purpose of examining Lambert’s argument.

Alabama has not adopted a specific test under which to examine the phrase “in, upon, getting in, on, out or off’ in order to determine whether a person is “occupying” a vehicle in the context of the insurance agreement at issue in this case. Other jurisdictions, however, have adopted specific tests for making such a determination. These tests include requiring the person injured to be “vehicle oriented,” requiring the person to be in close proximity to the insured vehicle, and requiring actual physical contact with the vehicle. The majority of jurisdictions hold that the meaning of the term “occupying” must be determined on a case-by-case basis, depending on the facts of the accident and the use of the vehicle, and that there must always be some causal connection between the injuries and the use of the vehicle. See, e.g., Torres v. Travelers Indem. Co., 171 N.J. 147, 148-49, 793 A.2d 592, 593 (2002).

In the present case, Lambert does not meet any of the above tests, and there was no causal connection between his injuries and the use of the company truck. Lambert was not “vehicle oriented” at the time the accident occurred because he was not engaged in a transaction essential to the use of the insured vehicle; instead, Lambert was merely standing on the side of the road waiting for his fellow employee to complete a task. The insured vehicle had absolutely no involvement, much less essential involvement, in this transaction. Lambert was merely “highway oriented” or “pedestrian oriented” at the time of the accident, not “vehicle oriented.” See D’Amour v. Amica Mut. Ins. Co., 153 N.H. 170, 891 A.2d 534 (2005). Furthermore, Lambert was not in actual physical contact with the covered vehicle at the time the accident occurred, which, as noted above, some jurisdictions, when interpreting the phrase “upon,” require to find coverage. Lambert merely happened to come in contact with the bumper of the covered vehicle once he was knocked from the vehicle that had struck him. Therefore, it does not appear that in most jurisdictions Lambert would be considered to have been “occupying” the covered vehicle.

In Safeway Insurance Co., this Court laid out the rules for interpreting the terms of an insurance contract:

“General rules of contract law govern an insurance contract. Twin City Fire Ins. Co. .v. Alfa Mut. Ins. Co., 817 So.2d 687, 691 (Ala.2001). The court must enforce the insurance policy as written if the terms are unambiguous, id.; Liggans R.V. Ctr. v. John Deere Ins. Co., 575 So.2d 567, 569 (Ala.1991). Whether a provision of an insurance policy is ambiguous is a question of law. Turvin v. Alfa Mut. Gen. Ins. Co., 774 So.2d 597, 599 (Ala.Civ.App.2000). To the extent the language of an insurance policy provision is ambiguous, all ambiguities must be resolved against the insurance company. Twin City Fire Ins. Co., 817 So.2d at 692. However, the parties cannot create ambiguities by setting forth different interpretations or ‘[by inserting] ... strained or twisted reasoning.’ Id. Moreover, the mere fact that a word or a phrase used in a provision in an insurance policy is not defined in the policy does not mean that the word or phrase is inherently ambiguous. Id. If a word or phrase is not defined in the policy, then the court should construe the word or phrase according to the meaning a person of ordinary intelligence would reasonably give it. Id. The court should not define words it is construing based on technical or legal terms. Liggans R.V. Ctr., 575 So.2d at 570.”

912 So.2d at 1143.

In the present situation, Lambert first argues that the terms “upon” and “on”, which are used to define the term “occupying” in the insurance agreement, are ambiguous and should be construed against Coregis. Lambert cites Black’s Law Dictionary (4th ed.1968), which defines “on” as “upon; as soon as; near to; along; along side of; adjacent to; contiguous to; at the time of; following upon; in; during; at or in contact with upper surface of a thing.” Lambert also gives numerous examples of different ways the words “on” and “upon” are used, such as paint “on” a wall; the house “on” the bay; the robber held a gun “on” the victim; make a wish “upon” a star; etc., and he argues that the words “on” and “upon” are susceptible to many interpretations. However, contrary to Lambert’s implication, merely because a term can be used in different ways in different contexts does not automatically make the term ambiguous. See Atlantic Mut. Ins. Co. v. Ruiz, 123 Cal.App.4th 1197, 1210, 20 Cal.Rptr.3d 628, 633 (2004). If that was true, then almost any term in a contract would be ambiguous because words frequently have different meanings in different contexts.

A term in a contract is ambiguous only if, when given the context, the term can reasonably be open to different interpretations by people of ordinary intelligence. See Safeway Insurance Co., supra. In the context of the present situation, “upon” and “on” are used in defining the term “occupying,” and the definitions of the words “upon” and “on” must be interpreted in relation to the term they are used to define. Specifically, “on” or “upon” indicate whether Lambert was “occupying” the covered vehicle even though he was several feet away from the covered vehicle when he was struck, was not engaged in any activity related to the covered vehicle, and happened to momentarily come in contact with the bumper of the covered vehicle during the accident. Given that context, the terms are not ambiguous, and a reasonable person of ordinary intelligence would not believe that Lambert was “occupying” the covered vehicle by being on or upon it at the time the accident occurred because that interpretation would require straining or twisting the ordinary meaning of “occupying.”

As noted earlier, “upon” in modern usage is the equivalent of “on.” The applicable definitions of “on” found in Merriam-Webster’s Collegiate Dictionary 865 (11th ed.2003) are as follows: “1 a — used as a function word to indicate position in contact with and supported by the top surface of ... b- — used as a function word to indicate position in or in contact with an outer surface ... c — used as a function word to indicate position in close proximity with.... ” Although it may be possible to give multiple meanings to the terms “on” or “upon” when those terms are standing alone, the only plain and common meaning of those terms in relation ito the term “occupying” is for “upon” or “on” to mean in contact with and supported by the top surface of or in contact with an outer surface. Lambert’s allegation that “upon” should be interpreted as “in dose proximity with” or striking the vehicle would require payment of UM benefits to anyone who happens to be near a covered vehicle and injured when the vehicle is struck by an uninsured motorist even though the person has no connection with the owner, the named insured, or the covered vehicle. Therefore, contrary to Lambert’s contention, the terms of the insurance policy are not ambiguous; thus, the insurance agreement should not be construed against Co-regis.

Furthermore, Lambert has not set forth any interpretation of the terms that would reasonably apply to the facts of this case. Lambert does set forth a “bumper sticker analogy,” in which he states that a “sticker pasted to a vehicle is ‘on’ or ‘upon’ the vehicle.” Therefore, Lambert argues, “[i]t was error for the trial court to determine, as a matter of law, that Dick Lambert, who was a bumper sticker when he was injured, was not ‘on’ or ‘upon’ the truck.” We decline to accept this analogy. A person impacting a bumper on a vehicle and then falling under the vehicle is not analogous to a bumper sticker, which is physically attached to the bumper and supported by it. The analogy is, at best, strained and tenuous.

Again, the terms of the insurance policy are unambiguous; thus, this Court must enforce the policy as written. As written, in order to provide UM coverage under the policy Lambert must have been “upon” or “on” the covered vehicle, because those terms are used in defining “occupying.” The facts here do not fit the plain and common meaning of the terms “upon” or “on” because Lambert was not in contact with and supported by the top surface of the covered vehicle or in contact with the outer surface of the vehicle when the accident occurred. Therefore, Lambert was not “occupying” the covered vehicle at the time the accident occurred and, as a matter of law, Lambert was not an insured under the terms of the policy and did not qualify for UM coverage.

A situation analogous to the present case occurred in Rednour v. Hastings Mut. Ins. Co., 468 Mich. 241, 661 N.W.2d 562 (2003). In Rednour, the plaintiff was driving his friend’s car in Ohio when he had a flat tire. 468 Mich, at 242, 661 N.W.2d at 563. The plaintiff got out of the car, loosened the lug nuts on the flat tire, and began to walk toward the rear of the car. He was struck by an oncoming automobile that threw him against the car he had been driving, injuring him. 468 Mich, at 242, 661 N.W.2d at 563. The plaintiff admitted that he had not been touching the car and that he had been approximately six inches from it when he was struck by the other vehicle. Id. The insurance policy at issue required that, in order to recover benefits, a person be “occupying” an “auto” if the accident takes place outside Michigan. Rednour, 468 Mich, at 243, 661 N.W.2d at 564. The policy defined “occupying” as “in, upon, getting in, on, out or off.” 468 Mich, at 243, 661 N.W.2d at 564.

The plaintiff argued that he was “ ‘upon’ the car because he was pinned against it after being struck.” Rednour, 468 Mich, at 249, 661 N.W.2d at 567. The Supreme Court of Michigan held" that physical contact with a vehicle alone does not establish that a person is “upon” the vehicle so that the person is “occupying” the vehicle, and an examination of the relevant dictionary definitions clarified that “one must be on or up and on a vehicle in order to be ‘upon’ it.” 468 Mich, at 250, 661 N.W.2d at 567 (footnote omitted). The court ultimately held that “[ujnder the policy definition of ‘occupying’ that was adopted by the vehicle owner and the insurance company, plaintiff was not occupying the insured automobile when he sustained bodily injury.” 468 Mich, at 251, 661 N.W.2d at 568. Furthermore, the court noted the arbitrariness of the interpretation in the dissenting opinion that the insurance policy allowed the required contact with the covered vehicle to occur after the accident is initiated:

“[I]f there are two persons who are struck by a vehicle while in the vicinity of the insured vehicle, and if one is thrown into the insured vehicle while the other is thrown into a tree, a highway, a curb, or a fence, only the former would be covered by the policy as interpreted by the dissent. Such happenstance does not form a rational basis for understanding the scope of coverage under an insurance policy.”

Rednour, 468 Mich, at 250 n. 2, 661 N.W.2d at 567 n. 2.

Similarly, in the instant case, Lambert was not “occupying” the covered vehicle under the definition set forth in the policy because he was not “on” or “upon” the auto when he was hit by the other vehicle. A holding that a person in Lambert’s situation qualified as being “upon” the covered vehicle would lead to arbitrary and irrational results.

The only prior decision of this Court that examined whether a person was “occupying” a covered vehicle for the purpose of UM coverage is Cook v. Aetna Insurance Co., 661 So.2d 1169 (Ala.1995), which held that the plaintiff was not “occupying” the covered vehicle. However, this Court examined only the phrase “getting in” as that phrase was used in defining “occupying” and did not examine the word “upon,” which is the basis for Lambert’s argument.

In Cook, a car was waiting outside the plaintiffs residence while the plaintiff had crossed the street to buy a cup of coffee. He was struck by an uninsured motorist as he was returning to the car. 661 So.2d at 1171. This Court held that the plaintiff was not “getting in” the car waiting on him for purposes of “occupying” it when he was struck. This Court so concluded, in part, because the plaintiff had left his jacket and his lunch box in his residence, and the evidence tended to show, among other things, that the plaintiff intended to first retrieve these items and then to enter the car.

Furthermore, this Court held:

“While we do not believe that Alabama should adopt a rigid requirement of physical contact, we agree with the authorities cited above that the act of ‘getting in’ or entering a vehicle must be distinguished from approaching the vehicle, as well as from the act of preparing to enter the vehicle. We cannot agree that the term ‘getting in’ as used in the Aetna policy is doubtful in meaning. Viewed in its context and applied to the facts of this case, the term ‘getting in’ is plain and unambiguous. Hence, the question in this case must be decided according to the plain and common meaning of that term. As stated by the Georgia Court of Appeals in Major[ v. Allstate Ins. Co., 207 Ga.App. 805, 429 S.E.2d 172 (1993) ], the plain and common meaning of that term is coming or going into, passing into the interior of — obviously meaning going or moving into. ‘Getting into,’ we therefore conclude, is an affirmative act or movement to effect an entrance into an automobile.”

Cook, 661 So.2d at 1173.

Lambert does not allege that he was “getting in” the covered vehicle, and because Cook did not examine the word “upon,” it has very little relevance to the present case. However, Cook does support the rule that contract terms should be interpreted according to their plain and common meaning in the context of, and applied to, the particular facts of the case. As noted earlier, the plain and common meaning of “upon” or “on” in the context of this case does not lead to the conclusion that Lambert was “occupying” the covered vehicle as required by the policy.

Conclusion

The terms of the insurance policy at issue are not ambiguous. Furthermore, Lambert was not “occupying” the covered vehicle when the accident occurred because he was not “on” or “upon” the vehicle as required by the policy. As the trial court held, no plausible definition of “occupying” a vehicle describes Lambert in this case. Therefore, as a matter of law, Lambert may not recover benefits under the UM or auto medical payments coverage. The trial court’s summary judgment in favor of Coregis was proper; we affirm.

AFFIRMED.

NABERS, C.J., and LYONS, WOODALL, and PARKER, JJ., concur.

      . There was some dispute as to whether Lambert’s body ever actually impacted the South Alabama Utilities truck. However, for the purposes of considering Coregis's summary-judgment motion, the trial court assumed that Lambert’s body had impacted the South Alabama Utilities truck at some point during the accident.

      . With regard to the claim under the auto medical payments coverage, the trial court held that “[p]art B-3, which is 'anyone else "occupying” a covered "auto” ’ does not apply on its face because the ‘auto’ Mr. Lambert claims he was ‘occupying’ was not out of service.” It is unclear why the trial court makes this distinction between the clause defining who is an insured in the UM coverage section and the same clause in the auto medical payments coverage. In any event, the parties do not make an issue of this distinction on appeal, and it does not affect the outcome of the case. If Lambert was not "occupying” the covered auto, as the trial court expressly held, then he does not qualify as an insured under either the UM endorsement or the auto medical payments coverage.

      . See Kentucky Farm Bureau Mut. Ins. Co. v. McKinney, 831 S.W.2d 164, 168 (Ky.1992) (establishing a four-part test to determine if a person was "occupying” the insured vehicle: "(1) [t]here must be a causal relation or connection between the injury and the use of the insured vehicle; (2) [t]he person asserting coverage must be in a reasonably close geographic proximity to the insured vehicle, although the person need not be actually touching it; (3) [t]he person must be vehicle oriented rather than highway or sidewalk oriented at the time; and, (4) [t]he person must also be engaged in a transaction essential to the use of the vehicle at the time.”); D’Amour v. Arnica Mut. Ins. Co., 153 N.H. 170, 173, 891 A.2d 534, 537 (2005) (recognizing the " 'vehicle orientation standard,’ under which a claimant must be ‘engaged in a transaction essential to the use of the insured vehicle at the time of the accident’ in order to be ‘occupying’ the vehicle”); Simpson v. United States Fid. & Guar. Co., 562 N.W.2d 627, 630-31 (Iowa 1997) (holding that UM coverage extended to anyone "in close proximity to the [covered auto]” and "engaged in an activity relating to the use of the [covered auto]”); Testone v. Allstate Ins. Co., 165 Conn. 126, 131-32, 328 A.2d 686, 690-91 (1973) (interpreting the phrase "in or upon” as requiring actual physical contact with the insured vehicle to afford coverage under the UM provisions).


author: YATES, Presiding Judge. MURDOCK, Judge,

text:
    Ex parte STATE DEPARTMENT OF HUMAN RESOURCES et al. (In re Laura Johnson-Price v. State Department of Human Resources et al.)
    2030570.
    Court of Civil Appeals of Alabama.
    Sept. 24, 2004.

      Robert E. Poundstone IV and Warren B. Lightfoot, Jr., of Maynard, Cooper & Gale, P.C., Birmingham, for petitioners.
    Norbert H. Williams, Alabama State Employees Association, Montgomery, for respondent.
   YATES, Presiding Judge.

The State Department of Human Resources (“DHR”); the Calhoun County Department of Human Resources (“Calhoun County DHR”); Bill Fuller, as commissioner of DHR; the Alabama State Personnel Department; and Thomas G. Flowers, as director of the State Personnel Department (hereinafter collectively referred to as “the defendants”), petition this court for a writ of mandamus directing a judge of the Montgomery Circuit Court to vacate his order issued on March 11, 2004, denying the defendants’ motion to dismiss, or, in the alternative, motion for a summary judgment based on the ground of sovereign immunity. In 1998, Laura Johnson-Price was appointed director of Calhoun County DHR. Johnson-Price contends that Calhoun County DHR had attempted to reject her as a candidate for the director’s position. However, because she had a higher ranking in the state merit system than the other eligible candidates who had expressed an interest in the position, she was eventually appointed to the position. Before she was appointed as director, Johnson-Price had served as assistant director of Calhoun County DHR. While she was serving as assistant director, Johnson-Price had filed a complaint with DHR, claiming racial discrimination and discrimination based on her opposition to what she believed was an unlawful discriminatory employment practice by the then director of Calhoun County DHR, Erin Snowden. Johnson-Price had also filed complaints with Calhoun County DHR and former DHR Commissioner Martha Nachman, and her predecessor, acting DHR Commissioner P.L. Corley.

Effective September 1,1996, Erin Snow-den retired as director of Calhoun County DHR. On October 4, 1996, the director of DHR’s Civil Rights and Equal Employment Division issued a detailed letter of determination, finding: (1) that former director Snowden had retaliated against Johnson-Price in several respects; (2) that the Calhoun County DHR Board knew or should have known of Snowden’s retaliatory treatment against Johnson-Price; (3) that the Calhoun County DHR Board Chairman, Melissa Truitt, had “acted in concert” with Snowden in carrying out the retaliatory acts against Johnson-Price; (4) that DHR’s then Commissioner Martha Nachman, and her predecessor, P.L. Cor-ley, having knowledge of the discrimination against Johnson-Price, had taken “steps and [had] made recommendations they believed to be reasonably calculated to eliminate and remedy the effects of the discriminatory retaliatory treatment” but that those steps had been “rendered ineffective due to limitation placed on their authority to control or prohibit the conduct of [former Director] Snowden.” The remedy recommended by the director of the DHR’s Civil Rights and Equal Employment Division was to purge Johnson-Price’s files of certain appraisal reports completed by Snowden and to prevent the next director of Calhoun County DHR from retaliating against Johnson-Price. No determination was made on Johnson-Price’s claim of racial discrimination “because of prohibitions imposed by the Court. As moved by [Johnson-Price]’s attorney, the Court precluded [the Civil Rights and Equal Employment Division] from taking investigatory actions necessary to answer such charges.”

On December 3, 2003, Johnson-Price filed a petition for a common-law writ of certiorari against DHR, Calhoun County DHR, the State Personnel Department, and Fuller and Flowers, in their official capacities, alleging in pertinent part:

“18. Following her 1998 appointment as Calhoun County Director by [Calhoun County DHR], [Johnson-Price] enjoyed outstanding employment appraisals, each of which reflected that she either exceeded the expectations of [Calhoun County DHR] and [DHR] or she consistently exceeded the expectations of the [Calhoun County DHR] and [DHR] in performing her assigned duties.
“19. Those ratings indicated to [Johnson-Price], as it would to any reasonable person, that her job performance was satisfactory and consistent with [Calhoun County DHR]’s and [DHR]’s expectations for her job performance.
“20. Notwithstanding [Johnson-Price]’s proficiency in performing her job as Calhoun County DHR director, ever since [Johnson-Price]’s appointment as Calhoun County DHR director, the [Calhoun County DHR] Board has continued to mistreat [Johnson-Price].
“21. [The Calhoun County DHR] Board’s mistreatment of [Johnson-Price] included, but was not limited to the following: (1) publicly questioning [Johnson-Price]’s truthfulness and veracity without any justification; (2) engaging in conduct to demean and undermine [Johnson-Price] in the eyes of subordinate employees; (3) forbidding [Johnson-Price] from bringing subordinate employees to [the Calhoun County DHR] Board meetings to assist [Johnson-Price] where said employees’ presence was often necessary for an efficient exchange between [Johnson-Price] and [the Calhoun County DHR] Board; and (4) routinely withholding, until the day of the meeting, notification of [the Calhoun County DHR] Board meetings which [Johnson-Price] was required to attend and make reports to the [Calhoun County DHR] Board.
“22. On information or belief, acting in concert with [the Calhoun County DHR] Board, around October 2003, [DHR Commissioner] Fuller or his agents directed the creation of the position of Quality Control Program Consultant with [DHR].
“23. On information or belief, said position was created solely for the purpose of displacing [Johnson-Price] from her position as [Calhoun County DHR] director.
“24. On information or belief, thereafter, on October 31, 2003, Defendants used the Merit System’s transfer provisions codified in § 36-26-24 [Ala.Code 1975] as a pretext or ruse to remove [Johnson-Price] from her position as director of [Calhoun County DHR] where no merit based reason existed to justify [Johnson-Price]’s removal.
“25. Defendants directed that effective November 15, 2003, [Johnson-Price] was transferred to a position with [the DHR] Quality Control Unit, located in Birmingham, Alabama, a distance which is approximately seventy (70) miles from [Johnson-Price]’s current office.
“26. Defendants’ pretextual transfer of [Johnson-Price] violates the rules of [the] State Personnel Dept. See Ala. Ad-mimCode R. 670-X-4-.01.[]
“28. At all relevant times, dating back to October 4, 1996 when [DHR]’s director of [the] Civil Rights and Equal Employment division issued a letter of determination finding that [the Calhoun County DHR] Board acted in concert with the former Calhoun County director, [Erin] Snowdén, to engage in retaliatory acts against [Johnson-Price], the composition of [the Calhoun County DHR] Board has remained essentially unchanged. Only two of the seven [Calhoun County DHR] Board members are new.
“29. The Defendants’ removal and displacement of [Johnson-Price] from her position as Calhoun County [DHR] director to the newly created position of consultant is a continuation of [the Calhoun County DHR] Board’s historical mistreatment of [Johnson-Price].
“30. Moreover, Defendants’ pretex-tual transfer of [Johnson-Price] violates the transfer provision of § 36-26-24 [Ala.Code 1975] which mandates that a person can only be transferred to a position from one department to another in the same class.
“31. The duties and responsibilities of the position which was created for [Johnson-Price], that of Quality Control Program Consultant, is in no way comparable to [Johnson-Price]’s position of [Calhoun County DHR] director.”

Johnson-Price sought a preliminary injunction to enjoin the defendants from removing her as director of Calhoun County DHR and transferring her to another position while the case was pending. She also sought a judgment declaring the defendants to be in violation of state statutes and administrative rules for removing her from her position as director and transferring her to the position of quality-control consultant. She also sought a judgment declaring that the defendants had acted “arbitrarily and capriciously” in seeking her transfer. Johnson-Price sought “such other further, different or additional relief as [the] Honorable Court may deem just and proper, including but not limited to, an award of attorney’s fees.”

On December 31, 2003, the defendants filed a motion to dismiss, or, in the alternative, a motion for a summary judgment. In their motion, the defendants argued, among other things, that they were entitled to immunity. On March 3, 2004, Johnson-Price amended her petition to include as additional defendants the individual board members of the Calhoun County DHR Board, in their official capacities, and Page Walley, the newly appointed DHR commissioner. On March 11, 2004, the trial court held a hearing on and subsequently denied the defendants’ motion.

On March 22, 2004, the defendants filed a motion with the trial court, seeking permission to appeal pursuant to Rule 5(a), Ala. R.App. P. The trial court denied the motion. The trial of this case was scheduled for April 12, 2004. The defendants filed a petition for a writ of mandamus with this court, and on March 30, 2004, this court granted a stay of the trial court’s proceedings.

The defendants argue that a writ of mandamus should be issued on the ground of sovereign immunity. “It is well established that mandamus will lie to compel the dismissal of a claim that is barred by the doctrine of sovereign immunity.” Ex parte Blankenship, 893 So.2d 308, 305 (Ala.2004). Pursuant to Article 1, § 14, of the Alabama Constitution of 1901, the State of Alabama and its agencies are immune from suit in any court. Ex parte Franklin County Dep’t of Human Res., 674 So.2d 1277 (Ala.1996). That constitutional provision “affords the State and its agencies an ‘absolute’ immunity from suit in any court.” Haley v. Barbour County, 885 So.2d 783, 788 (Ala.2004)(citing Ex parte Mobile County Dep’t of Human Res., 815 So.2d 527, 530 (Ala.2001)). The state’s absolute immunity extends to its arms and agencies. Ex parte Tuscaloosa County, 796 So.2d 1100, 1103 (Ala.2000). Accordingly, DHR, Calhoun County DHR, and the State Personnel Department are entitled to sovereign immunity.

A state officer sued in their official capacity is “ ‘absolutely immune from suit when the action is, in effect, one against the state.’ ” Williams v. John C. Calhoun Cmty. Coll., 646 So.2d 1, 2 (Ala.1994)(quoting Phillips v. Thomas, 555 So.2d 81, 83 (Ala.1989)). The wall of im munity for state officers and employees “erected by § 14 is nearly impregnable.” Patterson v. Gladwin Corp., 835 So.2d 137, 142 (Ala.2002). Section 14 prevents not only a suit against the state, it also prevents a plaintiff from indirectly suing the state by suing a state officer or employee in their official capacity, when “a result favorable to the plaintiff would directly affect a contract or property right of the State.” Mitchell v. Davis, 598 So.2d 801, 806 (Ala.1992)(citing Milton v. Espey, 356 So.2d 1201 (Ala.1978)).

In the present case, Johnson-Price has sued or attempted to sue Fuller, Flowers, Walley, and the Calhoun County DHR Board members (hereinafter collectively referred to as “the state officers”) in their official capacities. Johnson-Price’s petition seeks a judgment declaring that the state officers violated certain statutes and they acted arbitrarily. Immunity pursuant to § 14 is not absolute; it does not apply where the state officer or employee is alleged to have acted “willfully, maliciously, illegally, fraudulently, in bad faith, beyond [their] authority, or under a mistaken interpretation of the law,” Phillips v. Thomas, 555 So.2d 81, 83 (Ala.1989), and it does not protect a state officer or employee in “a suit to compel the performance of a legal duty, a suit to enjoin the enforcement of an unconstitutional law, a suit to compel performance of a ministerial act, or a suit brought under the Declaratory-Judgments Act,” Mitchell, 598 So.2d at 806.

Our supreme court has recognized that “ ‘[a]ctions brought under the Declaratory Judgments Act, [Ala.Code 1975, § 6-6-220 et seq.], seeking construction of a statute and how it should be applied in a given situation,’ ” are a species of actions that are not “ ‘against the State,’ ” for purposes of § 14. Patterson, 885 So.2d at 142 (quoting Aland v. Graham, 287 Ala. 226, 229-30, 250 So.2d 677, 679 (1971)). “In determining whether an action against a state officer is barred by § 14, the Court considers the nature of the suit or the relief demanded, not the character of the office of the person against whom the suit is brought.” Ex parte Carter, 395 So.2d 65, 67-68 (Ala.1980).

We now turn to whether Johnson-Price’s petition against the state officers regarding her transfer was within one of the above-listed categories of actions that are not violative of the constitutional prohibition against suing the state. The defendants argue that Johnson-Price’s petition goes beyond a mere request to construe a statute and that granting the relief Johnson-Price has requested would prevent her lawful transfer, would directly impact the state’s employment contract with Johnson-Price, and would impermissibly require the expenditure of state funds to re-transfer Johnson-Price to the position of director of Calhoun County DHR.

In Stark v. Troy State University, 514 So.2d 46 (Ala.1987), an assistant professor sued a state university; its chancellor, in his official capacity and in his individual capacity; and its chief executive officer, in his official capacity and in his individual capacity. The assistant professor filed an action seeking a judgment declaring that the university’s policies with respect to scheduling teacher overloads and summer-session pay were binding on the university, an injunction prohibiting the defendants from refusing to abide by the policies, and compensatory damages based on the defendants’ failure to implement the policies. Our supreme court held that the university was immune from suit. The court further held that if the chancellor and the chief executive officer

“have not acted toward the [professor] in accordance with the rules and regulations set by the university, their acts are arbitrary and an action seeking to compel them to perform their legal duties will not be barred by the sovereign immunity clause of the Alabama Constitution of 1901; however, the action for compensatory damages cannot be maintained.”

514 So.2d at 50. In Baggiano v. Miller, 437 So.2d 557 (Ala.Civ.App.1983), this court stated that suits seeking to compel administrative officers to perform ministerial functions are not violative of § 14 and that, once a determination is made that a person is entitled to medicaid benefits, then the agency has no choice but to pay such benefits.

In Ex parte McLeod, 718 So.2d 682 (Ala.1997)(Butts, J., with one Justice concurring, two Justices concurring specially, and one Justice concurring in the result), instructors at a state college sued the college and the college president, in his official capacity, seeking judgments declaring that they were entitled to tenure under the Fair Dismissal Act, § 36-26-100 et seq., Ala.Code 1975, and they filed petitions for writs of mandamus requiring that they be granted tenure and awarded them full-time employment. A plurality of our supreme court held that the instructors’ claims “sufficiently implicate[d] the exceptions to the protection from suit afforded by § 14, and ... that the plaintiffs’ actions against the defendants [were] not barred by the doctrine of sovereign immunity.” 718 So.2d at 684.

Rigby v. Auburn University, 448 So.2d 345 (Ala.1984), involved a police officer hired by a state university. The police officer sought an injunction to compel the university to pay him a salary as specified in the university compensation plan for his job classification. He sued the university, the university president, the university chancellor, and members of the board of trustees. The trial court dismissed the suit on the ground of sovereign immunity. Our supreme court held that the university was an arm of the state and was therefore entitled to immunity. However, the court held that the state officers and agents, acting in their official capacities, were not immune from suit because the police officer alleged that they had acted in bad faith and beyond their authority.

In the present case, Johnson-Price’s petition seeks a declaration that the state officers acted arbitrarily, capriciously, and in a discriminatory manner in transferring her employment and that that transfer did not comply with the Alabama Merit System Act and the administrative regulations adopted pursuant to that Act. Although Johnson-Price may not ultimately prevail, her claims against the state officers in their official capacities are not barred by § 14.

Based on the foregoing, we grant the defendants’ petition to the extent that it seeks a writ directing the circuit court to dismiss DHR, Calhoun County DHR, and the State Personnel Department. In all other respects, we deny the petition.

PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.

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

MURDOCK, J., concurs in part and dissents in part, with writing.

MURDOCK, Judge,

concurring in part and dissenting in part.

I concur in the main opinion to the extent that that opinion applies the doctrine of sovereign immunity in favor of the state-agency defendants and thereby grants the petition for a writ of mandamus as it relates to those defendants. In my view, however, the doctrine of sovereign immunity likewise protects the state-official defendants, who in this case are sued only in their official capacities in connection with a personnel decision involving a state employee. I therefore respectfully dissent from the main opinion’s denial of the petition with respect to those defendants.

      . Before the events giving rise to this action, Johnson-Price had apparently brought an action alleging racial discrimination in which DHR was named as a defendant. That action was apparently still pending in 1996, but the materials before us do not indicate when that action was filed, the court in which the action was filed, or the ultimate result of that action.

      . In the absence of a right to appeal or an other adequate remedy, a common-law writ of certiorari lies to review the rulings of an administrative board. As the defendants stated in their motion to dismiss, or, in the alternative, motion for summary judgment, " § 36-26-24 provides no legal remedy for an appeal of a transfér.” We note that in Sullivan v. Teague, 424 So.2d 574 (Ala. 1982), a merit-system employee sued the state superintendent of education, in his official capacity, seeking a determination as to whether his transfer from a position as a Vocational Rehabilitation Counselor II to the Division of Disability Determination as a Disability Examiner contravened § 36-26-1 et seq., Ala. Code 1975, and seeking injunctive relief.

      . Johnson-Price did not sue Fuller and Flowers in their individual capacities.

      . Rule 670-X-4-.01 (State Pers. Dep’t) provides: "Discrimination against any person in recruitment, examination, appointment, training, promotion, retention or any other personnel action, because of race, sex, national origin, age, handicap, or any other nonmerit factor, is prohibited.” Specifically, Johnson-Price argues that she has been discriminated against based on a "nonmerit” factor — namely, the defendants' past mistreatment of her and the complaints she filed as a result of that mistreatment, which she alleges, ultimately led to her being transferred.

      . Rule 5, Ala. R.App. P., is limited to those cases within the original appellate jurisdiction of the supreme court. Because this case is within the original jurisdiction of this court and not the supreme court, the trial court correctly denied the motion to appeal from the interlocutory order.

      . Walley, the newly appointed DHR commissioner, and the Calhoun County DHR Board members, in their official capacities, were named as additional defendants in Johnson-Price’s March 3, 2004, amended petition. It is unclear from the material submitted with the mandamus petition whether the trial court granted Johnson-Price leave to allow the amendment pursuant to Rule 15(a), Ala. R. Civ. P. Such leave appears to have been necessary because Johnson-Price's amended petition appears to have been filed less than 42 days before the first setting of trial. Nevertheless, we will consider whether Walley and the Calhoun County DHR Board members are entitled to immunity because sovereign immunity is a jurisdictional bar that precludes a court from exercising jurisdiction over the subject matter. Ex parte Alabama Dep’t of Mental Health & Mental Retardation, 837 So.2d 808 (Ala.2002); see also Liberty Nat’l Life Ins. Co. v. University of Alabama Health Servs. Found., P.C., 881 So.2d 1013 (Ala.2003)(where university asserted defense of sovereign immunity on its own behalf, the court also considered whether university foundation and university health system were entitled to immunity). We note that with regard to Commissioner Walley, Rule 25, Ala. R. Civ. P., provides that when a public officer is a party to an action in his official capacity, and that officer ceases to hold office, the officer’s successor is automatically substituted. Accordingly, Fuller is no longer a party and Walley is automatically substituted in his official capacity.