text:
    Michael Edward STARKEY, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-01076-COA.
    Court of Appeals of Mississippi.
    Nov. 7, 2006.

      John D. Watson, Southhaven, attorney for appellant.
    Office of the Attorney General by W. Daniel Hinchcliff, attorney for appellee.
    Before MYERS, P.J., SOUTHWICK and GRIFFIS, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. On September 18, 2004, Michael Edward Starkey was stopped by Officer Josh Muceiarone of the Olive Branch Police Department for failure to have a functional license tag light after the officer observed Starkey driving at a slow rate of speed. Officer Muceiarone called for backup and Officer Bradley Barker arrived on the scene in order to conduct standardized field sobriety tests. Officer Barker’s patrol car was equipped with a video camera and captured images of Starkey during a portion of the roadway stop. Officers Muceiarone and Barker both testified that they observed Starkey during the course of the stop unsteady on his feet, having red, watery eyes, a dazed stare, and slurred speech and that a strong odor of an intoxicating beverage was emanating from inside Starkey’s vehicle. Both officers also testified that Starkey admitted to drinking “a couple” on the evening in question. Starkey complied with the officers’ requests to perform field sobriety tests; however, he refused to submit to an Intox-ilyzer breath test. Officer Barker testified that Starkey failed the field sobriety tests. Starkey’s refusal to submit to the breath test was admitted into evidence at trial pursuant to Mississippi Code Annotated section 63-11-41 (Rev.2004).

¶ 2. Starkey was indicted on January 14, 2005, under Mississippi Code Annotated sections 63-ll-30(l)(a) for operating a vehicle “while under the influence of intoxicating liquor” and 63-ll-30(2)(c) for driving under the influence (DUI), third offense. Starkey was tried and convicted of felony DUI and was sentenced to four years in the custody of the Mississippi Department of Corrections and one year to be served under post-release supervision. Following his conviction, Starkey presented motions for a directed verdict and for a new trial; however both motions were denied. Aggrieved by the judgment entered against him, Starkey appeals, raising the following issues:

I. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE JURY TO CONSIDER EVIDENCE OF STARKEY’S REFUSAL TO TAKE THE INTOXILYZER.

II. WHETHER THE TRIAL COURT ERRED IN DENYING STARKEY’S MOTIONS FOR A DIRECTED VERDICT AND FOR A NEW TRIAL WHEN THE JURY VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

¶ 3. Finding no error, we affirm.

I. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE JURY TO CONSIDER EVIDENCE OF STARKEY’S REFUSAL TO TAKE THE INTOXILYZER.

¶ 4. Starkey first complains that his refusal to submit to the Intoxilyzer test was erroneously admitted into evidence in violation of the Fifth Amendment to the United States Constitution. He also asserts that the trial court erred in refusing his jury instruction which would have instructed the jury to disregard his refusal to take the breath test. Starkey argues in both of his assignments of error that Mississippi Code Annotated section 63-11-41 (Rev.2004) is unconstitutional.

¶ 5. Mississippi Code Annotated section 63-11-41 requires a motorist to choose between agreeing to submit to a chemical test, and thereby giving evidence against himself to the State, or refusing to take the test and suffering the consequences of that refusal by having the jury hear that he refused the test. While Starkey’s refusal was admitted into evidence under the Mississippi Code, our supreme court has noted that Mississippi Rule of Evidence 402 also provides for the introduction of a refusal to submit to a chemical test as it is relevant and not otherwise constitutionally inadmissible. Ricks v. State, 611 So.2d 212, 215-16 (Miss.1992). While the consequences of a refusal are admittedly harsh to a defendant facing a DUI trial, a prosecutor’s choice to exploit the defendant’s refusal is not of “constitutional dimension.” Wainwright v. Greenfield, 474 U.S. 284, 293, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986) (distinguishing the right to silence under Miranda and a prosecutor’s reference to a defendant’s refusal to take a blood alcohol test). The Supreme Court of the United States, the Mississippi Supreme Court and this Court have previously considered the constitutionality of admitting a defendant’s refusal to submit to a sobriety test. See South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983); Ricks v. State, 611 So.2d 212 (Miss.1992); Brewer v. State, 812 So.2d 1153 (Miss.Ct.App.2002); Price v. State, 752 So.2d 1070 (Miss. Ct.App.1999). Each of the aforementioned courts has held that the refusal to submit to a chemical sobriety test is physical rather than testimonial evidence. Neville, 459 U.S. at 564, 103 S.Ct. 916 (holding that evidence of a defendant’s refusal to take a blood alcohol test may be admitted at a criminal trial without violating the Fifth Amendment); accord Ricks, 611 So.2d at 215 (finding a defendant’s refusal of a request to submit to an breathalyzer test analogous to a refusal to take a blood alcohol test and holding that such a refusal may be considered by the jury as evidence); Brewer, 812 So.2d at (¶ 6); Price v. State, 752 So.2d at (¶ 16).

¶ 6. The courts of our state have reasoned that the admission into evidence of a defendant’s refusal to submit to a breath test no more implicates his right against self-incrimination under Article 3, section 26 of the Constitution of the State of Mississippi than it does under the Fifth Amendment of the Constitution of the United States. Following this precedent, the trial court’s admittance of Starkey’s refusal to submit to the Intoxilyzer breath test was not a violation of either Starkey’s state or federal constitutional right against self-incrimination. Thus, Starkey’s challenge to the constitutionality of section 63-11-41 of Mississippi Code Annotated fails. It then follows that the trial judge’s refusal of Starkey’s jury instruction, which would have directed the jury to disregard his refusal to submit to the breathalyzer, was not error.

II. DENIAL OF MOTION FOR A DIRECTED VERDICT AND MOTION FOR A NEW TRIAL

¶ 7. Starkey asserts that the trial court erred in denying his motions for a directed verdict and for a new trial. Motions for directed verdict challenge the legal sufficiency of the evidence, while motions for a new trial concern the weight of the evidence presented to the jury. Bridges v. State, 790 So.2d 230, 235(¶ 13) (Miss.Ct.App.2001). This Court follows our supreme court’s standard in reviewing denials of motions for directed verdict and will reverse only when the evidence is such that “reasonable and fair-minded jurors could only find the accused not guilty.” McClain v. State, 625 So.2d 774, 778 (Miss.1993).

¶ 8. Starkey first argues that it was error for the trial court to allow evidence of his refusal to take the breathalizer test and thus this error warranted a new trial. Because the issue concerning the admission of Starkey’s refusal to submit to the breath test has already been addressed, no further attention need be directed to this argument.

¶ 9. Starkey’s next arguments concerning the weight and the legal sufficiency of the evidence are premised upon the absence of blood alcohol or other conclusive scientific evidence of impairment due to intoxication, the lack of accuracy of the field sobriety test results performed during the stop, and the video evidence of Starkey maintaining his balance during the stop. Starkey argues that he is entitled to a new trial because the jury’s verdict was against the overwhelming weight of the evidence.

In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence presented as supportive of the verdict, and we will disturb a jury verdict only when convinced that the circuit court has abused its discretion in failing to grant a new trial or if the final result will result in an unconscionable injustice.

Doolie v. State, 856 So.2d 669, 671(¶7) (Miss.Ct.App.2003).

¶ 10. In order to prove guilt of third offense felony DUI, the State has the burden to prove beyond a reasonable doubt that an accused was driving or operating a vehicle while either under the influence of an intoxicating liquor or with a blood alcohol content of at least 0.08%. Miss.Code Ann. § 63-ll-30(l)(a), (c) (Rev.2004). Additionally, the State is required to prove that the accused has been twice convicted of separate DUI charges within the previous five years of the arrest for the third DUI charge. Miss.Code Ann. § 63 — 11— 30(2)(c) (Rev.2004).

¶ 11. In the case sub judice, the State’s evidence consisted of testimony from Officer Mucciarone and Officer Barker. Both officers are trained in field sobriety procedures and certified to administer the tests that Starkey received. Officer Mucciarone testified that he observed Starkey unsteady on his feet, with red, watery eyes, a dazed stare, slurred speech and he sensed a strong odor of an intoxicating beverage coming from inside the vehicle. Officer Barker testified to the same indicators of intoxication. Officer Barker testified that Starkey also failed the two field sobriety tests conducted and that he refused the Intoxilyzer test. Additionally, both officers testified that Starkey admitted to drinking “a couple” prior to the stop. The State also introduced into evidence two prior sentencing orders in which Starkey had been convicted of separate DUI charges in Shelby County, Tennessee, within the five year time period previous to his arrest on September 18, 2004.

¶ 12. Based on the record before this Court, we find that the trial court did not err in denying Starkey’s motion for a directed verdict. The trial judge denied Starkey’s motion for directed verdict ruling that the State had offered sufficient proof that Starkey was driving his vehicle while under the influence of alcohol. The jury considered the evidence and returned a verdict against Starkey. We find that there was sufficient evidence to find Starkey guilty.

¶ 13. Further, based on the evidence before the jury, we find no error in the trial court’s denial of Starkey’s motion for a new trial. The jury sits as the fact-finder and determines the credibility of the witnesses and gives value to the weight of the evidence against the accused. Ward v. State, 881 So.2d 316, 323(¶31) (Miss.Ct.App.2004). In viewing the evidence in the light most favorable to the verdict, we find that a reasonable juror could have found Starkey guilty of third offense DUI based on the evidence presented. Therefore, the verdict was not so contrary to the weight of the evidence that to allow it to stand would sanction an unconscionable injustice, which is the standard required for this Court to disturb the jury’s verdict on appeal.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY OF CONVICTION OF FELONY DUI — THIRD OFFENSE AND SENTENCE OF FOUR YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND ONE YEAR POST-RELEASE SUPERVISION AND FINE OF $2,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

KING, C.J., LEE, P.J., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.


source: Caselaw Access Project

author: SOUTHWICK, J., CHANDLER, J.,

license: Public Domain

text:
    KOSSUTH TRUCKING, INC., Appellant, v. CATERPILLAR, INC., Appellee.
    No. 2005-CA-02032-COA.
    Court of Appeals of Mississippi.
    Nov. 7, 2006.

      John A. Ferrell, Booneville, attorney for appellant.
    Robert Glenn Krohn, Corinth, attorney for appellee.

      Before KING, C.J., SOUTHWICK and IRVING, JJ.
   SOUTHWICK, J.,

for the Court.

¶ 1. Kossuth Trucking, Inc. brought suit against Caterpillar, Inc. alleging that an engine in one of Kossuth’s trucks was negligently repaired by a mechanic for whom Caterpillar was responsible. Caterpillar was granted summary judgment based on the trial court’s conclusion that the mechanic was not Caterpillar’s agent. We agree and affirm the judgment.

FACTS

¶2. The object at the center of the parties’ dispute is the engine in a 1993 Freightliner truck. In May 2000, the previous owner (the grandfather of the owners of Kossuth) sent the truck to N & N Diesel Service of Corinth so that its Caterpillar engine could be rebuilt. This repair work was performed after the Caterpillar warranty of five years and 500,000 miles had expired. Kossuth bought the truck in October 2000. The next month, a truck repair shop in Little Rock, Arkansas called MHC Kenworth performed repairs to the engine. Tony Mask, who along with his brother, Terry, owns Kossuth, testified that the engine was rebuilt several times in the months following the MHC repair work, until finally the truck was taken out of use indefinitely. The only evidence from Kossuth on causation was that MHC mechanics used faulty parts, but there was no evidence that these were Caterpillar parts.

¶3. Kossuth filed suit in September 2002, naming only Caterpillar, Inc. as a defendant. Kossuth alleged breaches of implied and express warranties by Caterpillar, as well as breach of contract. In June 2005, Kossuth filed an amended complaint which added language alleging vicarious liability by Caterpillar for negligence in repair work performed by MHC, as well as improper training of the MHC mechanics. Caterpillar’s motion for summary judgment was granted in September 2005.

¶ 4. The trial court’s findings of fact relied on Kossuth’s expert that MHC use of faulty parts for the repair created the problem. The court found that MHC mechanics were trained by J.A. Riggs Tractor Company, and not by Caterpillar. The court found no written agreement with MHC or other source of Caterpillar liability. MHC was merely a “second-level dealer” of Caterpillar products and an independent contractor. Since there was no evidence of an agency relationship between Caterpillar and MHC, summary judgment was entered. We now consider Kossuth’s appeal.

DISCUSSION

¶ 5. On appeal, Kossuth argues that there was a sufficient “connection” between Caterpillar and the business that conducted the repairs, MHC Kenworth, to “hold that there was an agency relationship between them under the case law.” Though Kossuth named only Caterpillar in its suit, the Caterpillar dealer, J.A. Riggs Tractor Co., and the second-level dealer MHC are the entities through which Kossuth must proceed to reach Caterpillar. Kossuth’s appellate arguments center on case law defining tort liability of principals for the acts of agents. Kossuth argues that there are disputed issues of material fact requiring reversal on the general question of agency.

¶ 6. Riggs and MHC are tractor-trailer dealerships and service centers located in Little Rock, Arkansas. Both Riggs and MHC sell Caterpillar and other tractor-trailer trucks, as well as provide service for all types of tractor-trailer trucks. Caterpillar manufactures many of the engines that are installed in these tractor-trailer trucks, as well as replacement parts for these engines.

¶ 7. Caterpillar defines Riggs as a “dealer” of its products and MHC as a “second-level dealer” of its products. Caterpillar has no contracts with second-level dealers. MHC performed the repair work on the Caterpillar engine which ultimately led to this litigation. MHC is an authorized “second-level dealer” for Caterpillar. Riggs entered into a contract with Caterpillar called the “Caterpillar Distribution Agreement for Engines, Parts and Service.” Caterpillar’s only agreement with MHC was to grant restrictive use of the Caterpillar trade and service marks.

¶ 8. Kossuth arguesThat summary judgment was improper because it had demonstrated the existence of a fact question as to whether Caterpillar was vicariously liable for the work performed on Kossuth’s Caterpillar engine. Kossuth relies on a theory of agency to impute to Caterpillar any alleged negligence in MHC’s repair work.

¶ 9. Kossuth argues that the deposition of Caterpillar’s' representative, Joseph Saver, and the Caterpillar distribution agreement are evidence of an agency relationship between Caterpillar and MHC. Most of Saver’s deposition explained that second-level dealers have no direct relationship with Caterpillar. Second-level dealers have Caterpillar parts as inventory and their technicians perform repair work on Caterpillar engines. Caterpillar does not warrant the work performed by second-level dealers. Caterpillar does not provide training- for the mechanics and technicians of the second-level dealer or require them to use Caterpillar parts. In his deposition, Joseph Saver explained that he had no direct knowledge of the Riggs and MHC arrangement. He testified that a second-level dealer will “in most cases” contact the dealer and “request to be authorized to provide parts and service for Caterpillar engines.”

¶ 10. Saver stated that Caterpillar requires dealers to attend training workshops at the Caterpillar headquarters in Illinois. The second-level dealers are required by virtue of the distribution agreement to have personnel who have been trained by the dealer’s trainers, but that training would not occur at Caterpillar headquarters. Saver testified that Caterpillar did not issue warranties on the work of second-level dealers. Saver also stated that second-level dealers bought replacement parts for repair directly from dealers and never from Caterpillar itself.

¶ 11. Kossuth finds support for its position that there was an agency relation primarily in a precedent of this Court. Miller v. Shell Oil Co., 783 So.2d 724 (Miss.Ct.App.2000). There, we reversed a summary judgment in favor of Shell Oil Company. We found a fact question as to whether an agency relationship existed between Shell and a truck stop that we described as a “Shell branded station” leased by a third party. Id. at 729. The plaintiff had slipped on oil or fuel near the fuel pumps. The court majority found that a fact question existed as to whether Shell had a measure of control over the operation of the independently owned station. Id. at 728.

¶ 12. As Kossuth discusses, we relied in Miller on ten factors identified in a 1931 precedent. Kisner v. Jackson, 159 Miss. 424, 427, 132 So. 90, 91 (1931). Kisner was an employee of a saw mill who had been injured at the mill. The issue was whether the person operating the mill was an independent contractor or an agent of the owner. Id., 159 Miss, at 426-27, 132 So. at 90-91. In Miller, we examined the Kisner factors. Shell supplied its brand of fuel to the truck stop, required that the Shell fuel be used exclusively, retained a right of inspection, had “control of the premises, the right to prescribe and furnish the details of the kind and character of work to be done, and the right to direct the details in the manner in which the work is done.” Miller, 783 So.2d at 727.

¶ 13. In Kisner, Justice V.A. Griffith identified these factors which we then employed in Miller:

Whether the principal master has the power to terminate the contract at will; whether he has the power to fix the price in payment for the work, or vitally controls the manner and time of payment; whether he furnishes the means and appliances for the work; whether he has control of the premises; whether he furnishes the materials upon which the work is done and receives the output thereof, the contractor dealing with no other person in respect to the output; whether he has the right to prescribe and furnish the details of the kind and character of work to be done; whether he has the right to supervise and inspect the work during the course of the employment; whether he has the right to direct the details of the manner in which the work is to be done; whether he has the right to employ and discharge the subemployees and to fix their compensation; and whether he is obliged to pay the wages of said employees.

Id. (quoting Kisner, 159 Miss, at 428-29, 132 So. at 91). Kisner said that no general ranking of the factors could be made, since “the weight of each, and whether much or little, rising and falling in the scale as it may or may not be counterbalanced by one or more of the remaining tests,” would vary from case to case. Id.

¶ 14. We step back briefly from the ten-factor forest and examine just what these tests are trying to understand. Such decisions as Kisner are part of the larger and frequent analysis of the relationship between a direct actor who allegedly caused some damage to a plaintiff and other possible parties who should share in liability. A law journal article puts this issue in context:

There are three traditional classifications of employment relationships in which a hiring party employs a secondary party to perform work or service. These relationships are often referred to as (1) principal/agent; (2) master/servant; and (3) independent contractor. The classification of these employment relationships is significant since the hiring party’s liability is often predicated upon the status of the employment relationship. It is generally accepted that the principal and the master are subject to liability for the actions of their agents and servants, respectively. However, the hiring party in an independent contractor relationship may be protected from liability arising from the actions of the independent contractor.

Deanne Mosley & William C. Walter, The Significance of the Classification of Employment Relationships in Determining Exposure to Liability, 67 Miss. L.J. 613, 615-16 (1998).

¶ 15. As these authors discuss, there has been a proliferation of tests with varying factors that are used to identify the relationships. The Mississippi Supreme Court even once referred to this area as a “twilight zone.” Id. at 617, 132 So. 90 quoting Fruchter v. Lynch Oil Co., 522 So.2d 195, 199 (Miss.1988). With all the variations in tests, and despite some indications already mentioned that none of the factors are more important than the others, the principal focus now is on the issue of control. Mosley & Walter, Employment Relationships, at 618; Fruchter, 522 So.2d at 199. Indeed, a majority of the Kisner factors are aspects of the issue of control.

¶ 16. An important decision in this area is Levine v. Standard Oil Co., 249 Miss. 651, 163 So.2d 750 (1964). Standard Oil Company leased a service station to an operator. All of the station’s employees wore uniforms emblazoned with the words “Standard Oil.” The operator purchased his gasoline at wholesale from Standard Oil for retail sale on the station premises. The premises themselves were marked by a large “Standard Oil” sign and the general appearance of the station was similar to other company-owned service stations. Despite these facts, the Mississippi Supreme Court affirmed the trial court’s decision to grant Standard Oil a peremptory instruction. The Court concluded that the station operator was an independent contractor and not an employee of Standard Oil. In Miller, this Court’s majority distinguished Levine, finding that its facts did not constitute control by Standard Oil over the operation of the gas station. In Miller we put substantial weight on the fact of the Shell signs because “the premises of the Bogue Chitto Truck Stop was arranged so that members of the consuming public thought they were dealing with Shell.” Miller, 783 So.2d at 728. If customers reasonably would believe due to signs and other evidence that they were dealing with Shell, a contract creating an independent contractor relation with the station owner would not block Shell’s liability. Id. at 729, citing Fruchter, 522 So.2d at 199. A dissent found no distinction between Miller and Levine. Miller, 783 So.2d at 729 (McMillin, C.J., dissenting).

¶ 17. In the years since the 1931 Kisner decision that enumerated the factors that we used in Miller, other considerations have been added. For example, when an independent contractor arrangement exists in a situation involving “employment generally performed” between an employer and employees, courts will decide as to third party rights whether public policy should override the independent contractor status. Richardson v. APAC-Mississippi, Inc., 631 So.2d 143, 150 (Miss.1994). Miller did not discuss Richardson, but Miller’s focus on the Shell signs makes it clear that the expectations issue played a significant role in the result. A threshold requirement for the public policy exception is that, absent a finding of agency, the injured party will be “denied an adequate legal remedy.” Id.; Mosley & Walter, Employment Relationships, 67 Miss.L.J. at 626-27. There are adequate remedies if suit against Caterpillar is barred, so public policy will not intervene here.

¶ 18. Insofar as the applicability of the Miller analysis, it is significant that MHC was not holding itself out as “MHC-Caterpillar Truck Repair,” or in some manner analogous to a Shell service station presenting itself as strictly a franchise of a national company. The contract between Caterpillar and Riggs prohibited Riggs from using “Caterpillar” as part of its business name. The agreement on trademarks that Caterpillar entered with MHC made the same prohibition. There has not been an argument here and certainly no evidence that the MHC business created the same visual connection with Caterpillar that the service station in Miller had with Shell Oil Company.

¶ 19. We should also not lose sight while examining signs, that even in the case Miller relied upon to discuss what the public would reasonably believe after seeing the signs of a well-known company such as Standard Oil, the court still found that the key consideration for whether the trademark holder is responsible for torts on the premises is the actual control that the national company has over the operations at the specific location. Fruchter, 522 So.2d at 199.

¶20. We leave the Richardson and the implicit Miller public policy issues behind, and examine the central question of Caterpillar’s control over MHC’s repairs. Kossuth concedes that there was no contract between Caterpillar and MHC. Kossuth argues that the contractual relationship between Caterpillar and its first-level dealer, Riggs, imposed obligations on Caterpillar when Riggs entered agreements with second-level dealers. Section 7 of the Caterpillar-Riggs contract stated this, with the shorthand of “Company” referring to Caterpillar and “Dealer” to Riggs:

7. (a) In order to increase the availability of parts and mechanical service to those users of products who are not adequately served by existing facilities, Dealer agrees to appoint second level dealers throughout Dealer’s service territory described in Exhibit A. Dealer agrees to appoint as second level dealers only individuals, partnerships or corporations performing designated service functions, and to appoint them in such numbers, at such locations and for such selected models as to provide complete and adequate parts availability and mechanical service for such users. Dealer agrees that it is in the interest of both dealer and company that all second level dealers be responsible, of good reputation and capable of providing prompt, efficient and high quality service to users. Dealer agrees to inform Company concerning the appointment of any second level dealer and the termination of second level dealers previously appointed, and will from time to time report such information concerning each second level dealer appointed by Dealer as Company may request.
Company will make available to Dealer suggested forms of second level dealership agreements. The use of these forms by Dealer is optional, but agreements with second level dealers shall be in writing and include the substance of the appropriate Company-suggested form.
(b) Dealer agrees to:
(i) require second level dealers appointed by Dealer to provide the services, maintain the parts inventories and have available the specialized tools specified by Company;
(ii) maintain an adequate supply of parts and tools necessary to permit second level dealers appointed by Dealer to meet their parts and tool obligations;
(iii) provide training in the repair and maintenance of selected models for personnel of second level dealers appointed by Dealer as specified by Company;
(iv) provide other assistance to second level dealers appointed by Dealer as Company may specify.

¶ 21. The distribution agreement stated that dealers were independent contractors and not agents. Even so, Kossuth would have us find a fact question here because Caterpillar imposed on dealers an obligation to provide various kinds of assistance to second-level dealers such as MHC. We examine this evidence from the perspective of each of the Kisner factors:

(1) The first factor is whether Caterpillar had the power to terminate the relevant contract at will. The only contract between the two companies concerned the use of a trademark. Even if that agreement was cancelled, MHC would remain open under the same name and operating in the same way, including using Caterpillar parts, but it no longer would have Caterpillar signs.

(2) The only manner in which Kossuth says that Caterpillar affected the price was for warranty work, but the Kossuth repair was not under a Caterpillar warranty.

(3) There are some Caterpillar tools that are used in warranty work, but there was no requirement that they be used on non-warranty repairs or evidence that they were used here.

(4) There is no evidence that Caterpillar had any control over MHC’s premises.

(5) Since this was non-warranty repairs, there was no requirement that MHC use Caterpillar parts. Tony Mask, the eo-owner of Kossuth, testified that he did not recall whether MHC had even used Caterpillar parts in this repair.

(6) Whether Caterpillar had the right to require repairs to be conducted in certain ways is the most important connection between Caterpillar and MHC that Kossuth can find. Because of the paragraph we quoted above in the contract between Caterpillar and its dealer Riggs (not a contract with MHC), Kossuth argues that Caterpillar required its dealers to train second-level dealers in the making of repairs. Service manuals were provided from Caterpillar that reveal how certain repairs should be made. The only evidence in the record, though, is that Caterpillar did not require that all service technicians at a second-level dealer be trained by the dealer, and it did not require that only the trained technicians perform non-warranty work. The Kisner factor of “prescribe” the details of the work was not met here, though Caterpillar may well have guided some of the work.

(7) Kossuth acknowledges that though there was no continuous or even particularly frequent supervision of the work, if a dealer asked Caterpillar to go to a second-level dealer’s premises and inspect the work, Caterpillar had the right to do so.

(8) Insofar as the Kisner factor of having a right to “direct the details of the manner in which the work is to be done” is different than the sixth factor of “prescribe and furnish the details of the kind and character of the work to be done,” we find that our earlier conclusion under the sixth factor nonetheless applies. Caterpillar had some involvement in giving guidance and requiring the dealer to provide training, but how the second-level dealer employed those technicians on non-warranty work was not something over which Caterpillar retained any control.

(9) & (10) Kossuth concedes that Caterpillar had no right to employ, discharge, or fix compensation for MHC employees, nor does it pay the wages of those employees.

¶ 22. Very few of these Kisner factors indicate that Caterpillar had any control over MHC, and even the few factors that have some relevance are not met in full. Kossuth may have been aware of that problem when it concludes its argument by asserting that the determining factor is what the public perceived the relationship to be. We have already discussed, though, why the facts of this case are not analogous to those of the Shell service station in Miller.

¶ 23. The issue of whether there was a sufficient relation between Caterpillar and MHC is a question of fact. Miller, 783 So.2d at 727. Yet summary judgment is proper unless there are disputed issues of material fact. M.R.C.P. 56.

¶ 24. This case concerns a truck engine that was well passed the terms of its warranty. It was rebuilt by a company other than Caterpillar. The rebuilt engine soon needed additional repairs by another company other than Caterpillar. Kossuth’s expert believed that MHC mechanics were the cause of the damage because of their decision to use faulty parts, and there was no evidence that these were Caterpillar parts. Kossuth’s adequate legal remedy was not against Caterpillar.

¶ 25. Though Kossuth attempts to make Caterpillar the responsible party, we find no genuine issue of material fact to continue the suit beyond summary judgment. We affirm.

¶ 26. THE JUDGMENT OF THE AL-CORN COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. CHANDLER, J., DISSENTS WITH SEPARATE WRITTEN OPINION.

CHANDLER, J.,

Dissenting:

¶ 27. I respectfully dissent. I believe Kossuth Trucking has established a question of material fact as to whether an agency relationship existed between Caterpillar and MHC, including Caterpillar’s duty to properly train MHC mechanics, which renders summary judgment inappropriate. I base my conclusion upon the following facts.

¶ 28. Caterpillar’s marketing program employs two levels of personnel to market its manufactured parts. It refers to these two levels of personnel as “Dealers” and “Second Level Dealers” or “Users.” Each Dealer has a specified territory. The Dealer is responsible for making sure all Second Level Dealers/Users within its territory have the proper tools including any specialized tools as specified by Caterpillar. Second Level Dealers/Users must also keep on hand sufficient Caterpillar parts to meet their maintenance obligations.

¶29. MHC is a Second Level Dealer/User and pursuant to its contract is required to “provide adequate replacement parts, service facilities and service personnel qualified to service Caterpillar products.” Caterpillar reserved the right to terminate MHC at any time. As a Second Level Dealer/User, MHC used Caterpillar trade and service marks and employed certified Caterpillar mechanics. MHC was subject to on-site visits by Caterpillar executives.

¶ 30. The following language serves as an example of the control Caterpillar held over MHC. “Caterpillar, through such persons as it may designate shall have the right at all reasonable times to inspect all of User’s places of business and to examine the services rendered by User to verify User’s compliance with the requirements of this agreement.” The agreement is entitled “Trademark and Service Mark Agreement” and it begins by referring to the document as “The Operating Agreement,” stating that “Caterpillar, Inc. (herein called ‘Caterpillar’) and User agree.... ” MHC could only terminate its business relationship with Caterpillar by sending notice via certified mail to “Secretary, Caterpillar, Inc.” at its headquarters in Illinois. In short, all activities pertaining , to the marketing, sales and maintenance of Caterpillar manufactured parts by MHC were controlled by Caterpillar policy.

¶ 31. The truck engine which is the subject of this dispute is a Caterpillar engine. MHC requested and obtained authorization from Caterpillar to perform maintenance on this model engine. MHC, an authorized Caterpillar mechanic shop which employs certified Caterpillar personnel, did repair work on the engine. In performing the repair, the MHC mechanic completed a document which listed the customer’s complaints and the corrective measures taken to address those complaints. Included among the list of corrective measures taken was the following statement, “Piston reusable per Cat guidelines.” While the piston is not the faulty part in question, this language serves to show that MHC followed Caterpillar’s guidelines and that Caterpillar policy controlled the repair project.

¶ 32. Mr. Thomas Aaron Luther, a longtime diesel mechanic who was listed as an expert by Kossuth Trucking, opined that the negligent replacement of a sheared cam shaft key caused damage to the truck engine. The sheared key is an internal component of the Caterpillar engine. The key allows the timing gear on the cam shaft to jump timing resulting in the pistons “kissing” or striking the valves. Replacing only the sheared key rather than the entire cam shaft gear assembly as it is assembled at the factory caused the engine to continue to jump timing, resulting in severe damage to the engine.

¶33. Joseph Saver, a Caterpillar employee, stated that Caterpillar requires authorized dealers to attend Caterpillar-sponsored training courses in Illinois. The training includes instruction on truck engine repair. The Second Level Dealers/Users are further required to have their personnel trained by a Caterpillar authorized dealer. Caterpillar only warrants replacement parts which are installed by its certified mechanics. This practice provides incentives for potential customers to only use Caterpillar certified mechanics. As a certified Caterpillar repair shop, MHC could market Caterpillar parts to its customers when performing repair work on the customers’s Caterpillar truck engines, thus creating economic profits for itself as well as Caterpillar.

¶ 34. The majority applies the factors found in Miller v. Shell Oil Co., 783 So.2d 724 (Miss.Ct.App.2000) to the facts in this case and concludes that a jury trial is unwarranted. I differ with the majority’s conclusion. I conclude that an application of the factors found in Miller shows Kossuth Trucking has met its burden relative to its claims based upon apparent authority and failure to properly train.

¶ 35. In Miller, this Court found that a question of material fact regarding agency did exist where a service station held itself out to the public as being under the authority of Shell Oil. Id. at 729(¶ 18). This Court found the facts in Miller to create an “indicia” of control, whereby the service station “induced members of the public doing business with its agent to believe they were doing business with Shell.” Id. Likewise, I find the facts in the present case to sufficiently meet the Miller test, and I would reverse and remand for a trial on the merits as to these two claims.

      . Whether the dissent was correct or not, it is at least noteworthy that the Mississippi Supreme Court acknowledged that the “difficulty in applying these tests can been seen where this Court on quite analogous factual situations has reached opposite conclusions.” Richardson v. APAC-Mississippi, Inc., 631 So.2d 143, 149 (Miss.1994).

      . All reasonable inferences favor the non-movant in accordance with our summary judgment standard of review. See Miss. Ins. Guar. Ass’n v. Harkins & Co., 652 So.2d 732, 735 (Miss.1995).

      . Caterpillar Inc. Trademark and Service Mark Agreement.


author: CHANDLER, J„

text:
    Brian R. DIX, Appellant v. Karen R. DIX, Appellee.
    No. 2005-CA-00293-COA.
    Court of Appeals of Mississippi.
    Nov. 7, 2006.

      Herbert J. Stelly, Gulfport, attorney for appellant.
    Dean Holleman, Gulfport, attorney for appellee.
    Before LEE, P.J., CHANDLER and ROBERTS, JJ.
   CHANDLER, J„

for the Court.

¶ 1. Dr. Brian (“Brian”) Dix and Karen Dix (“Karen”) were granted an irreconcilable differences divorce on June 1, 1998 in the Chancery Court of the First Judicial District of Harrison County, Mississippi. The couple agreed to a property settlement, alimony payments and child custody arrangements, which were incorporated into the final decree for divorce.

¶2. In 2004, Brian filed a motion for modification seeking to modify certain provisions of the divorce decree. Brian requested a modification by reduction or elimination of his obligation to pay Karen periodic alimony and requested that his child support obligation for his oldest child, now in college, be offset by his payments for college education. The trial court denied Brian’s motion, finding that no material change in circumstances had arisen. Brian appeals, raising the following issues:

I. WHETHER THE TRIAL COURT ERRED IN DENYING THE MOTION TO TERMINATE PERIODIC ALIMONY

II. WHETHER THE TRIAL COURT ERRED IN DENYING BRIAN’S MOTION TO OFFSET CHILD SUPPORT PAYMENTS FROM THE SUPPORT OWED TO KAREN

¶ 3. Finding no error, we affirm.

FACTS

¶4. Brian and Karen entered into an irreconcilable differences divorce on June 1, 1998 after fifteen years of marriage. The couple had four children together during the marriage. The provisions for periodic alimony, child support and insurance on Brian’s life were agreed to by the parties and incorporated into a property settlement agreement.

¶ 5. The judgment of divorce ordered Brian to pay Karen $2,200 per month as periodic alimony. Brian was also required to maintain life insurance with Karen as a partial beneficiary for an amount equal to the unpaid lump sum alimony. Karen was awarded paramount custody of the children, and a schedule was set for Brian to have regular visitation with the children. Brian agreed to pay child support totaling $2,800 per month ($700 per child) and to pay all of the children’s health insurance, medical bills, private school tuition, and college education.

¶ 6. As part of the property settlement, Brian also agreed to pay Karen lump sum alimony of $360,000 payable at $2,500 per month for sixty months and thereafter $3,500 per month for sixty months. In addition, Karen received ownership of the $250,000 marital home and assumed the indebtedness of $151,000 for the property. Brian retained ownership interests in his medical practice, and each spouse retained their current automobiles.

¶ 7. At the time of the divorce, Brian was a successful anesthesiologist in Harrison County, Mississippi, and Karen was a stay-at-home mother to their four minor children. Karen has since returned to school, obtained her masters degree in nursing, and returned to the workforce as a nurse practitioner. Brian has since remarried, and has another child with his second wife. At the time of the trial, the four children were still residing with their mother, except for the oldest boy who was away at college.

¶ 8. Brian filed a complaint to modify the property settlement on January 21, 2004. Brian claimed that Karen’s obtaining her nursing degree and going back to work constituted a material and substantial change in circumstances such that Brian should be relieved of providing any further periodic alimony payments. In a hearing on these matters, Brian claimed that a reduction in his income also qualified as a material change justifying elimination of periodic alimony.

¶ 9. In an amended complaint on August 30, 2004, Brian further requested a modification or termination of his child support obligations to his oldest child, Daniel, who was away at college and no longer residing full-time in Karen’s home. Karen filed an answer and counterclaim requesting that child support be increased, making a general allegation of a change in circumstances.

¶ 10. Evidence was presented at trial in September 2004, consisting of the parties’ financial declarations, tax returns, expense summaries, pay stubs, and Brian’s credit card statements and summaries. Both Brian and Karen testified as to their present and past financial condition, expenses and income levels.

¶ 11. The trial court denied Brian’s motion for modification of alimony and child support on January 13, 2005, and denied Karen’s general request for an increase in child support. The court found that although a change in circumstances had occurred when Karen went back to work, it was not deemed to be a material or substantial change when comparing the parties’ respective incomes and expenses. Aggrieved, Brian appeals, arguing that the trial court erred in denying his motion to modify the alimony and child support agreement. Brian claims that the chancellor applied an incorrect legal standard in his ruling.

STANDARD OF REVIEW

¶ 12. A chancellor’s findings of fact will not be disturbed if substantial evidence supports those factual findings or unless the chancellor was manifestly wrong or clearly erroneous. Turpin v. Turpin, 699 So.2d 560, 564(¶ 14) (Miss.1997). As to matters of law, however, a different standard applies. In that case, our review is de novo, and if we determine that the chancellor applied an incorrect legal standard, we must reverse. Morreale v. Morreale, 646 So.2d 1264, 1267 (Miss.1994). The court reviews all of the evidence in a light most favorable to the appellee. Rawson v. Buta, 609 So.2d 426, 429 (Miss.1992).

LAW AND ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN DENYING THE MOTION TO TERMINATE PERIODIC ALIMONY

¶ 13. Brian argues that the trial court applied an incorrect legal standard in reviewing Brian’s complaint for modification of the divorce decree. Brian contends that the trial court erred in holding his complaint of modification to a higher scrutiny than other motions for modification, which caused a faulty finding that there was no substantial and material change in circumstances sufficient to warrant a modification of periodic alimony.

¶ 14. The trial court cited Morris v. Morris, 541 So.2d 1040, 1043 (Miss.1989), in stating that modifications of provisions agreed upon by both of the parties require closer scrutiny upon a modification request compared to an award that had been actually litigated in court. Brian argues that modifications in such cases do not require heightened scrutiny. He relies on Section 93-5-2(2) of the Mississippi Code Annotated (Rev.2004), which states in relevant part:

If the parties provide by written agreement for the custody and maintenance of any children of that marriage and for the settlement of any property rights between the parties and the court finds that such provisions are adequate and sufficient, the agreement may be incorporated in the judgment, and such judgment may be modified as other judgments for divorce.

(emphasis added).

¶ 15. While the chancellor used a heightened scrutiny to decide whether to modify the agreed order of divorce, the standard must still be met that a material change in circumstances occurred as a result of after-arising circumstances not reasonably anticipated at the time of agreement. Varner v. Varner, 666 So.2d 493, 497 (Miss.1995). The trial court correctly compared the respective positions of the parties at the time of the request for modification in relation to their positions at the time of the divorce. Furthermore, this Court will not reverse a chancellor’s finding where it is supported by substantial credible evidence. Shipley v. Ferguson, 638 So.2d 1295, 1297 (Miss.1994).

¶ 16. It is well settled that a modification of periodic alimony may be made by the chancery court when there has been a material change in circumstances arising subsequent to the original decree. Armstrong v. Armstrong, 618 So.2d 1278, 1281 (Miss.1993). An equity court should consider the “present status of the parties and inquire into their respective earning abilities and probable future prospects and all other circumstances which might bear on the subject, such as age, sex, health and station in life.” Spradling v. Spradling, 362 So.2d 620, 623-24 (Miss.1978).

¶ 17. This Court has long followed the factors enumerated in Brabham v. Brabham, 226 Miss. 165, 84 So.2d 147, 153 (1955), when reviewing the appropriateness of an award or denial of alimony. Therefore, we consider:

(1) the health and earnings capacity of the husband; (2) the health and earning capacity of the wife; (3) all sources of income of both parties; (4) the reasonable needs of the wife; (5) the reasonable needs of any children; (6) the husband’s necessary living expenses; (7) the estimated income taxes each party must pay; (8) the provisions made for the wife’s use of the house, furnishings and automobile; (9) such other facts and circumstances in evidence that might have a bearing on the matter.

Tilley v. Tilley, 610 So.2d 348, 353 (Miss.1992). Further, we must look at the burden placed on the paying spouse, as well as his or her right “to lead as normal a life as possible with a decent standard of living.” Brendel v. Brendel, 566 So.2d 1269, 1272 (Miss.1990).

¶ 18. Brian is in a much better financial position than Karen. As a nurse practitioner for a health clinic, Karen earns approximately $60,000 each year. Brian is a successful anesthesiologist, with an average adjusted gross income of $534,209 from 1997 through 2003. At the time of trial, his monthly gross earned income was approximately $43,000 per month. Brian claims that he suffered a substantial decrease in salary in 2003, which renders him unable to continue to pay Karen periodic alimony. A review of Brian’s financial statements shows that a reduction in his income occurred only in 2003, and did not reflect a continuing pattern of decline. Even with a drop in income that year, Brian still made well over $350,000 and has been able to purchase luxury items such as an airplane, a recreational vehicle (RV), and to invest in numerous real estate ventures along the Mississippi Gulf Coast. Furthermore, Brian testified that his monthly disposable income, after all deductions, was $30,637. Brian pays Karen $26,400 annually in periodic alimony. Thus, Brian could pay his annual periodic alimony obligation to Karen in one month and still have $4,237 left over.

¶ 19. In addition, Brian admits that he continues to lead an affluent lifestyle, but he maintains that he is only able to do so by incurring debt and borrowing money. Purchasing non-necessity material items on credit is of Brian’s own volition and as such, is not relevant to the modification analysis. The factors that are relevant are the fifteen year duration of the marriage, the standard of living of both parties during the marriage and now, the current needs of the parties, the current employment status of the parties, and the parties’s obligations and assets. Considering the Brabham factors, there was substantial evidence that Brian did not meet the requirements necessary for a material or substantial change in circumstances that would warrant a downward modification in periodic alimony.

¶ 20. Brian further contends that a substantial and material change has arisen due to Karen’s re-entry into the workforce as a nurse. The issue turns on whether Karen’s employment is considered material or substantial such that it would meet the standard for a modification of alimony.

¶ 21. In Spradling v. Spradling, 362 So.2d 620, 624 (Miss.1978), our supreme court refused to penalize a wife for obtaining a temporary teaching job by modifying her periodic alimony. The court noted that it would not punish a spouse “for being industrious and endeavoring to accomplish something rather than depend on [the paying spouse] regardless of future circumstances.” Id. We find in the present case that the new employment by Karen, whether temporary or permanent, does not rise to a substantial change of circumstances sufficient to modify the alimony payments. Id.; see Hockaday v. Hockaday, 644 So.2d 446, 450 (Miss.1994) (opining that one party’s having become employed and therefore having some income other than alimony does not constitute “such a substantial change in circumstances as to warrant a permanent reduction or termination of periodic alimony”).

¶22. In Austin v. Austin, 557 So.2d 509, 510 (Miss.1990), our supreme court found the chancellor manifestly erred by modifying alimony when the recipient spouse obtained full-time employment. The court observed that the husband who was initially ordered to pay alimony was affluent and maintained a high standard of living in spite of lavishly supporting six children. Id. The court noted that both parties knew that the recipient wife would secure employment after the divorce. Id.

¶ 23. Although Karen is gainfully employed, her net income remains significantly lower than Brian’s net income. Even with the periodic alimony payments, her income does not exceed Brian’s, nor do the payments result in Karen having a greater standard of living than Brian. While Brian may have experienced a slight decrease in his salary, upon comparing all of the factors, he still maintains a high standard of living. Therefore, we find that the chancellor’s decision that Karen’s employment was not a material and substantial change was neither clearly erroneous nor manifestly wrong.

II. WHETHER THE TRIAL COURT ERRED IN DENYING BRIAN’S MOTION TO OFFSET CHILD SUPPORT PAYMENTS FROM THE SUPPORT OWED TO KAREN

¶ 24. Brian further asks the court for a termination or reduction in the child support paid to his oldest son, Daniel, who at the time of trial was attending college. Brian paid for all of Daniel’s educational expenses, including books, tuition and housing.- Since Daniel no longer resides full-time in his mother’s home, Brian argues he should no longer be required to pay additional living expenses in the form of child support to Karen.

¶ 25. The threshold test for modification of child support requires a showing of a substantial and material change in circumstances of the mother, father, or child since the initial award of child support. Tedford v. Dempsey, 487 So.2d 410, 417 (Miss.1983). It is well settled that child support payments belong to the child, and not the custodial parent. Cumberland v. Cumberland, 564 So.2d 839, 847 (Miss.1990). The custodial parent is awarded child support for the benefit and protection of the child, and the custodial parent is under a fiduciary duty to “hold and use them for the benefit of the child.” Id.

If 26. Karen has paramount physical custody of the four children. Although Daniel lives at college, he frequently comes home on the weekends and for holidays, and receives financial support from both parents. Karen testified that she gives Daniel approximately $400 a month so that he may pay his car insurance. She also uses a portion of Daniel’s child support payment to provide for him when he comes home for visits and to maintain the household for the rest of the family.

¶ 27. Our courts have found modifications of child support awards (both an increase and reduction) to be warranted on a number of grounds. See Parker v. Parker, 645 So.2d 1327, 1331 (Miss.1994) (affirming reduction in support because father’s loss of income due to loss of job was a substantial and material change in circumstances); Setser v. Piazza, 644 So.2d 1211, 1216 (Miss.1994) (finding father’s support obligation should have been abated due to material change in circumstance where hurricane destroyed his home and his truck and trailer needed for his job); Edwards v. Edwards-Barker, 875 So.2d 1126, 1129(¶10) (Miss.Ct.App.2004) (affirming increase in support where evidence showed that costs of supporting children had increased as they got older and father was making more money than at time of divorce).

¶ 28. In the present case, the chancellor found that no material change in circumstances had arisen because the parties had contemplated that their children would go to college, as evidenced by their child support agreement. Per the agreement, Brian offered to pay for all of the tuition, room and board, textbooks and other reasonable expenses for his children should they attend college. Reducing the child support payments to Karen once the children left home was not part of that agreement.

¶29. Accordingly, we find no error in the chancellor’s judgment that no material and substantial change in circumstances has occurred to warrant a modification of Daniel’s child support payments, and affirm the lower court’s ruling.

¶ 30. THE JUDGMENT OF THE CHANCERY COURT OF HARRISON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.


author: PARKER, Justice.

text:
    Cary BOLTE, Julian Thrasher, and William Thrasher v. Era ROBERTSON and the estate of Silas Downey.
    1040793 and 1040850.
    Supreme Court of Alabama.
    April 28, 2006.

      Kenneth H. Looney, Scottsboro, for appellants.
    Finis Royal, Scottsboro, for appellees.
   PARKER, Justice.

The issue presented by these appeals is whether the trial court erred in determining that the nonademption policy of § 43-8-227(a)(l), Ala.Code 1975, applied and that, therefore, Era Robertson was entitled at Silas Downey’s death to the proceeds due from the sale of real property devised to Robertson but sold before Dow-ney died.

I. History

Downey executed a three-page will on April 1, 1988. His wife had died before he executed the will. Article Two of Dow-ney’s will made the following bequest to Robertson, his wife’s sister:

“[A]ll right, title, and interest I may have in and to any real estate at the time of my death, including all right, title, and interest in and to real estate which I derived by inheritance or otherwise from or through my late wife, Gladys Wilene Pritchett Downey, with such real estate to vest in the said Era Robertson absolutely.”

In Article Six, Downey devised the residue of his estate to his sister, Pearl Thrasher. He named Robertson as executor of his will.

On February 22,1991, Downey conveyed part of the real estate he had inherited from his late wife to Lowell Sherman and his wife, Kathryn Sherman, and financed the sum of $18,300. This indebtedness was secured by a mortgage on the real estate.

' Downey died on October 15,1994. Cary Bolte, Downey’s niece, filed an application for letters of administration in the Jackson County Probate Court on April 27,1995; it was granted that same day. On May 26, 1995, Robertson petitioned the probate court to admit Silas Downey’s will to probate, to set aside Bolte’s appointment as administrator, and to appoint Robertson as executor. The probate court granted Robertson’s petition on July 25, 1995. Pearl Thrasher died on October 15, 1999. On October 2, 2003, without a hearing, the probate court signed an order holding that the remaining mortgage debt of $7,000 was part of the residuary estate that had been bequeathed to Pearl Thrasher, in which her heirs now shared.

On August 19, 2004, Pearl Thrasher’s heirs — Cary Bolte, Julian Thrasher, and William Thrasher — filed an action in the Jackson Circuit Court (case no. CV-04-266) to collect the moneys received by Robertson on the mortgage debt after she was appointed executor on July 25, 1995. Robertson then filed a motion in the probate court on September 8, 2004, to vacate the probate court’s October 2, 2003, order. After a hearing on September 24, 2004, the probate court vacated the order, and the will contest involving the estate of Silas Downey was removed to the circuit court (case no. CV-04-298). On October 6, 2004, the heirs moved to consolidate case no. CV-04-266 and case no. CV-04-298, and on October 14, 2004, the circuit court consolidated the actions and set the consolidated case for hearing.

On January 5, 2005, the parties presented the issues to the circuit court by stipulated facts, one of which was that Robertson had received $7,000, representing the amount of the outstanding mortgage balance as of July 25, 1995. No testimony was taken. On January 28, 2005, the circuit court held that the statutory policy of nonademption applied and that the proceeds from the real estate devised to Robertson and sold after Downey’s will had been executed belonged to Robertson.

The heirs appealed. They argue that an ademption occurred because, they say, the devise of real estate to Robertson was a general, not a specific, devise and, therefore, the debt paid by the buyers after Downey’s death was part of the residuary estate and hence the personal property of the heirs.

II. Standard of Revieiv

Under both statutory and case-law, when evidence was not taken orally by the trial judge, this Court’s standard of review is to weigh and consider the evidence de novo. Section 12-2-7(1), Ala. Code 1975, provides:

“[N]o weight shall be given the decision of the trial judge upon the facts where the evidence is not taken orally before the judge, but in such cases the Supreme Court shall weigh the evidence and give judgment as it deems just.”

Similarly, Murphree v. Smith, 291 Ala. 20, 277 So.2d 827 (1973), states:

“[Wjhere the cause was submitted to the trial court for a final [judgment] on the pleadings and testimony of the witnesses taken orally before the Register, it is our duty to weigh and consider the evidence de novo and arrive at a conclusion without the aid of any presumption in favor of the trial court’s findings of fact.”

291 Ala. at 23, 277 So.2d at 328-29.

III. Analysis

The basic issue presented by these appeals is simply whether the devise to Robertson was general or specific. If it was a general devise, the trial court’s judgment should be reversed and the cause remanded with directions to render a judgment in the amount of $7,000 in favor of the hems. If it was a specific devise, the trial court’s judgment should be affirmed under § 43-8-227(a)(l), Ala.Code 1975, which provides:

“(a) A specific devisee has the right to the remaining specifically devised property and:
“(1) Any balance of the purchase price (together with any security interest) owing from a purchaser to the testator at death by reason of sale of the property....”

This statute deals with a number of different circumstances and prevents ademption in all cases of specifically devised assets when the testator’s death occurred before the proceeds of the sale, condemnation, or any insurance were paid to the testator.

A. Was the devise to Era Robertson a general devise?

The heirs contend that the devise to Robertson in Article Two was a general, not a specific, devise. However, even under the common law the devise would be a specific devise. This Court has held:

“Under the common law, all devises of real estate owned by the testator on the date of the execution of the will were specific devises, and this rule is not modified by the statute, except as to real estate disposed of by residuary devise and real estate acquired by the testator after the execution of the will.”

Cater v. Howard, 230 Ala. 133, 138, 159 So. 830, 834 (1935) (citing Kelly v. Richardson, 100 Ala. 584, 13 So. 785 (1893)).

To support their argument, the heirs merely quote the definitions of “general devise” and “specific devise” found in the fifth edition of Black’s Law Dictionary 407 (5th ed.1979), stating:

“ ‘A general devise is one which passes lands of the testator without a particular enumeration or description of them; as, a devise of “all my lands” or “all my other lands.” ...
“ ‘Specific devises are devises of lands particularly specified in the terms of the devise, as opposed to general ... devises of land, in which the local or other particular descriptions are not expressed.’ ”

(Heirs’ brief at 8.) Yet, the subject property fits the very definition of a specific devise: it is “particularly specified” in Article Two of Downey’s will as the “real estate which [Downey] derived by inheritance or otherwise from or through [his] late wife, Gladys Wilene Pritchett Dow-ney. ...”

Furthermore, the bequest to Robertson meets the definition of a specific bequest:

“ ‘A specific bequest is defined as “a bequest of a particular article or specific part of the testator’s estate which is so described and distinguished from all other articles or parts of the same as to be capable of being identified.” ’ ”

Parker v. Bozian, 859 So.2d 427, 435 (Ala.2003)(quoting Matthews v. Matthews, 477 So.2d 391, 393 (Ala.1985), quoting in turn Rowe v. Newman, 290 Ala. 289, 300, 276 So.2d 412, 421 (1972), and citing Ullmann v. First Nat’l Bank of Mobile, 273 Ala. 154, 137 So.2d 765 (1961)). In this case, the subject property is described and distinguished from Downey’s other real property and is clearly identified as the real property inherited from his late wife, Robertson’s sister. Thus, it can be separated from the rest of Downey’s real estate and is therefore a specific devise. See 80 Am.Jur.2d Wills § 1302 (2005).

B. Does this case present an issue of first impression?

The heirs cite no case authority, contending that this case presents an issue of first impression because the cases cited in the annotations to § 43-8-227 were all decided before the enactment of that Code section in 1982. However, the editor’s note to the annotation states: “In light of the similarity of the subject matter, decisions under former § 43-1-10 are included in the annotations for this section.”

Furthermore, the Commentary following § 43-8-227 states:

“Prior Alabama law can be said to be in accord with the general policy stated in this section. Former § 43-1-10 provided that ‘when any testator, after making his will, makes any contract for the conveyance of any property devised in such will, and the whole or any part of the purchase money remains unpaid to such testator at his death, the disposition of the property by such contract is not a revocation of the devise, ... unless it clearly appears by the contract, or some other instrument in -writing to be intended as a revocation.... ’ However, this section specifically mentions additional situations. Alabama did not previously have any statement of law specifically covering the situation mentioned in subsection (b) of this section.”

Subsection (b) does not apply to this case; it refers to sales by, or proceeds paid to, a guardian or curator. In other words, the enactment of § 43-8-227 has not abrogated the judicial precedent that applies to the heirs’ case.

The heirs attempt to distinguish § 43-8-227 from the former § 43-1-10 by stating:

“There is a significant difference between the two sections in that Section 43-1-10 does not use either the term ‘general devise’ or ‘specific devise,’ whereas Section 43-8-227(a) uses the words ‘specific devisee’ and ‘specifically devised’ in the first eleven words of the statute.”

(Heirs’ brief at 8.)

However, the Commentary to § 43-8-227 again refutes the heirs’ argument that the addition of these words expressed an intent by the legislature to change the law as it existed before the enactment of § 43-8-227:

“The intent of this section is to prevent ademption in all cases involving-sale, condemnation or destruction of specifically devised assets where testator’s death occurred before the proceeds of the sale, condemnation or any insurance, had been paid to the testator.”

In other words, the intent of § 43-8-227 remained the same as the intent of former § 43-1-10. A devisee remained entitled to the proceeds due on specifically devised land sold subsequent to the execution of the will devising the land when those proceeds have not been paid to the testator before the testator’s death. Furthermore, the predecessor statute to § 43-1-10, Title 61, § 13, Ala.Code 1940, its predecessor, § 10588 (6163), Ala.Code 1923, and all the predecessor statutes on nonademption expressed this same intent.

This Court has explained that under former § 43-1-10 and its predecessors:

“For the purposes of the will, the statute treats the unpaid purchase money as real estate. It may be said the statute is written into every devise of lands situate in Alabama, as if to say, on the face of the will, T devise this land or any unpaid purchase money due me thereon at my death, to the persons named in the will.’ ”

Phillips v. Phillips, 213 Ala. 27, 28, 104 So. 234, 236 (1925). Thus, the conveyance by any contract of property devised by a will does not revoke the devise of the property in the testator’s will, but passes the unpaid purchase money to the devisee.

This clearly is not a case of first impression. The enactment of § 43-8-227 merely incorporated the former § 43-1-10. The decisions under the predecessor statutes to former § 43-1-10 and under former § 43-1-10 are still good law and still apply to this case.

C. What was Downey’s intent?

Generally, wills should be construed to uphold rather than defeat devises, but the primary rule is to find and give effect to the intent and purpose of the testator. See Parker v. Bozian, supra; Rowe v. Newman, 290 Ala. 289, 276 So.2d 412 (1972) (citing Pearce v. Pearce, 199 Ala. 491, 74 So. 952 (1917); Willis v. Barrow, 218 Ala. 549, 119 So. 678 (1929); and Ullmann v. First Nat’l Bank of Mobile, 273 Ala. 154, 137 So.2d 765 (1961)).

In this case, there is no evidence, written or oral, indicating that Downey intended that Robertson should not receive the unpaid purchase money for the real estate specifically devised to her by his will. According to Phillips v. Phillips, “[t]he statute declares the unpaid purchase money shall not be taken out of the operation of the devise unless such intent is clearly expressed by an instrument in writing.” 213 Ala. at 29, 104 So. at 236 (citing Slaughter v. Stephens, 81 Ala. 418, 2 So. 145 (1887)).

Downey’s will clearly shows that he intended that Robertson receive any real property that he owned at the time of his death, including that real property inherited from his late wife, Robertson’s sister. There is nothing to indicate that he did not want Robertson to receive any unpaid purchase money resulting from the sale of that real property.

D. Does a remaining balance on a note secured by a mortgage constitute “right, title, and interest” to real estate devised by a will but subsequently sold?

Neither the heirs’ nor Robertson’s briefs explored whether the phrase “all right, title, and interest I may have in and to any real estate at the time of my death ....” in Article Two of Downey’s will limited his bequest to Robertson. One might argue that § 43-8-227(a)(l) applies only to an unqualified bequest. For example, if Downey’s will had simply devised “all right, title, and interest I may have in any real estate,” § 43-8-227 would dictate that Robertson would be entitled to at least a portion of the proceeds from any property that had been sold, but as to which all proceeds had not been received, before Downey’s death. But Downey qualified that bequest in his will, limiting the bequest to the right, title, and interest he had in any real estate “at the time of [his] death.” Therefore, it could be argued, he excluded from the specific bequest any property in which he did not have any right, title, or interest at the time of his death. The relevant question, therefore, is whether at the time of his death Downey had any remaining “right, title, and interest” in the property sold to the Shermans.

The Shermans purchased the property from Downey, but they executed to Dow-ney a note secured by a mortgage on the property, and at the time of Downey’s death the Shermans owed a balance on the indebtedness secured by the mortgage. The question, then, is whether that mortgage and the remaining indebtedness constitute “right, title, and interest” in the subject property. The answer in Alabama is that it does.

This Court generally defined the property interests created by a mortgage in Trauner v. Lowrey, 369 So.2d 531, 534 (Ala.1979), stating: “Alabama classifies itself as a ‘title’ state with regard to mortgages. Execution of a mortgage passes legal title to the mortgagee.” See Foster v. Hudson, 437 So.2d 528 (Ala.1983); First Nat’l Bank of Mobile v. Gilbert Imported Hardwoods, Inc., 398 So.2d 258 (Ala.1981); Jones v. Butler, 286 Ala. 69, 237 So.2d 460 (1970); McCary v. Crumpton, 267 Ala. 484, 103 So.2d 714 (1958); Garst v. Johnson, 251 Ala. 291, 37 So.2d 183 (1948); and Mallory v. Agee, 226 Ala. 596, 147 So. 881 (1932). See also § 35-10-26, Ala.Code 1975.

Downey was the mortgagee; he took the mortgage that conveyed title to him, pending payment of the loan secured by the mortgage. Because the loan was not paid in full at the time of Downey’s death, he still had some right, legal title, and interest in the subject property. According to § 43-8-227(a)(l), Ala.Code 1975, that right, legal title, and interest was included in his bequest to Robertson.

TV. Conclusion

The judgment of the circuit court is affirmed. The devise to Robertson was a specific and not a general devise. Therefore, the nonademption provisions of § 43-8-227, Ala.Code 1975, control, and Robertson is entitled to receive the $7,000 due from the sale of the land that was devised to her but sold before Downey’s death.

AFFIRMED.

NABERS, C.J., and LYONS, WOODALL, and SMITH, JJ., concur in the result.


author: SEE, Justice.

text:
    CONTINENTAL CASUALTY COMPANY v. John Clifton PINKSTON and Lailani Pinkston.
    1041327.
    Supreme Court of Alabama.
    April 28, 2006.

      Bibb Allen, Richard E. Smith, Deborah Alley Smith, and Jennifer M. Thompson of Christian & Small, LLP, Birmingham, for appellant.
    S.A. Watson, Jr., Jeffrey G. Blackwell, and Jennifer L. McKown of Hornsby, Watson, Hornsby & Blackwell, Huntsville, for appellees.
   SEE, Justice.

Continental Casualty Company (“Continental”) petitioned this Court, pursuant to Rule 5, Ala. R.App. P., for permission to appeal from the denial of its motion for a partial summary judgment. This Court granted Continental permission to appeal. After reviewing the record and considering the arguments presented by the parties, we conclude that permission to appeal under Rule 5, Ala. R.App. P., was improvidently granted, and we dismiss the appeal. See Hughes Beverage Co. v. Hughes, 861 So.2d 1087 (Ala.2003); State v. Bassett, 364 So.2d 1175 (Ala.1978).

Facts and Procedural History

John Clifton Pinkston was an employee of Meadow Gold Dairies. In the course of his employment, Pinkston was involved in a collision with an automobile driven by Angela Michelle Roper while Pinkston was driving a truck owned by Meadow Gold Dairies.

Pinkston and his wife, Lailani Pinkston, sued Roper, asserting claims of negligence and wantonness; Lailani asserted a loss-of-consortium claim. The Pinkstons subsequently amended their complaint to add Continental, Meadow Gold’s fleet insurance carrier, as a defendant. In their amended complaint, the Pinkstons alleged that Roper was an “uninsured/underin-sured driver” and that Continental provided uninsured/underinsured-motorist coverage. Continental answered the Pinkstons’ amendéd complaint and admitted that Continental “provided certain uninsured/underinsured coverage on the vehicle being driven by [Pinkston], the terms and conditions of which speak for themselves.” After Roper had answered the Pinkstons’ complaint, the Pinkstons’ claims against Roper were settled for the limits of Roper’s insurance policy; Roper is not insured beyond that amount.

Continental also acknowledged in its answer that it had issued a commercial automobile policy that covered a fleet of Meadow Gold’s vehicles and that it provided uninsured/underinsured coverage on the Meadow Gold truck Pinkston was driving at the time of the accident with Roper. Meadow Gold’s commercial policy with Continental provides uninsured- and un-derinsured-motorist benefits, subject to certain terms and conditions, to a limit of $1,000,000. Because the Continental policy covers three or more vehicles, the insured is allowed to “stack,” so that the underinsured-motorist coverage available under the policy is $3,000,000. See Ala. Code 1975, § 32-7-23(c).

The commercial automobile insurance policy covering the Meadow Gold fleet contains the following coverage limitation:

“We will not pay for any element of ‘loss’ if a person is entitled to receive payment for the same element of ‘loss’ under any workers’ compensation, disability benefits or similar law.”

At the time of the accident, Meadow Gold had in effect a workers’ compensation insurance policy also issued by Continental. Pinkston applied for and received workers’ compensation benefits for the injuries he sustained in the accident.

Based on the workers’ compensation limitation in the policy providing underin-sured-motorist coverage, Continental moved the trial court for a partial summary judgment declaring that the maximum benefits to which the Pinkstons are entitled is $60,000. Continental conceded that, under Alabama law, the workers’ compensation limitation in the policy cannot be applied to deny the Pinkstons the minimum statutory underinsured-motorist limit of $20,000, which would be $60,000 as stacked. However, Continental argued that the workers’ compensation limitation in the policy is enforceable as to underin-sured-motorist coverage over and above the statutory minimum. Thus, Continental argued, it is required to provide the Pinkstons only the statutorily mandated benefits of $60,000 ($20,000 X 3) in available coverage.

The Pinkstons opposed Continental’s summary-judgment motion, arguing that the workers’ compensation limitation is void because it violates the Alabama Uninsured Motorist Statute. The Pinkstons asserted that the limit of liability of the commercial policy is $3,000,000 — the policy limit of $1,000,000, which can be stacked for a total of $3,000,000. The Pinkstons also argued that the workers’ compensation limitation in the policy could not operate as a blanket limitation on coverage; instead, they argued, it purports to exclude only those elements of loss covered by the workers’ compensation policy.

The trial court denied Continental’s motion for a partial summary judgment. 'The trial court’s order explained the issue before it as follows:

“The insurance policy at issue contains a worker’s compensation exclusion which expressly excludes coverage for any injuries suffered by [Pinkston] which are also covered by worker’s compensation. Defendant Continental concedes that the exclusion does not apply to the uninsured motorist coverage that must be provided by statute, but contends that it does apply to other coverage not required by statute. The question presented on the motion for partial summary judgment is what amount of underinsurance coverage is available to [the Pinkstons] where the policy provides liability limits of $1,000,000.00 but expressly excludes coverage for any injuries suffered by [Pinkston] which are also covered by worker’s compensation?”

Concluding that “there is substantial ground for difference of opinion on this issue” and “that an immediate, appeal would avoid protracted and expensive litigation and, given the parties’ stipulation, will dispose of. the case in its entirety” (emphasis in original), the trial court certified its order as appropriate for an interlocutory appeal under Rule 5, Ala. R.App. P.

Issue

The question of law certified by the trial court for consideration on permissive appeal is as follows:

“When a policy exclusion is found to be ineffective to exclude statutorily required uninsured and underinsured motorist coverage, what is the limit of uninsured and underinsured motorist coverage that applies under the policy— the statutorily required minimum amount or an amount equal to the limits contained in the policy?”

Analysis

The Alabama Uninsured Motorist Statute, § 32-7-23, Ala.Code 1975, requires that every automobile-liability-insurance policy issued or delivered in Alabama provide uninsured/underinsured-motorist coverage with limits for bodily injury or death of at least $20,000 per person, unless the coverage is specifically rejected in writing by the named insured. See § 32-7-23(a) and 32-7-6(c), Ala.Code 1975.

If an insured’s loss exceeds the limits of one underinsured-motorist policy, the insured may “stack” other coverages provided by that contract of insurance. See American Econ. Ins. Co. v. Thompson, 643 So.2d 1350, 1356 (Ala.1994). The stacking is limited to the primary coverage plus coverage for a maximum of two additional vehicles. See § 32-7-23(c), Ala. Code 1975. Therefore, if an insurance policy covers three or more vehicles, as does the Continental policy, there is a statutorily imposed $60,000 liability for uninsured/underinsured-motorist . coverage. The parties concede that in this case Pink-ston may stack coverages.

When an exclusion in a policy is more restrictive than the uninsured/under-insured-motorist statute, the exclusion is void and unenforceable. State Farm Auto. Ins. Co. v. Reaves, 292 Ala. 218, 292 So.2d 95 (1974). Thus, this Court has held that a limitation in a policy providing uninsured/underinsured-motorist benefits purporting to reduce the amount payable under the uninsured/underinsured-motorist policy by any amount payable under workers’ compensation insurance is ineffective to reduce the uninsured/underinsured-mo-torist benefits under the policy to an amount below the statutorily required amount. State Farm Mut. Auto. Ins. Co. v. Cahoon, 287 Ala. 462, 252 So.2d 619 (1971). Continental concedes that the workers’ compensation limitation in its policy is ineffective to reduce its liability below the statutory minimum of $20,000 (or $60,000 stacked). However, Continental argues that the workers’ compensation limitation in the policy is effective to exclude underinsured-motorist coverage beyond the statutory minimum of $20,000 (or $60,000 stacked).

In support of its argument, Continental points to Cahoon, in which this Court held that a workers’ compensation limitation in an uninsured/underinsured-motorist policy was ineffective to reduce uninsured-motorist benefits. In Cahoon, the insured was to receive workers’ compensation in an amount that would equal- or exceed the uninsured-motorist coverage of $10,000 provided by his policy, the statutory minimum at the time. The uninsured-motorist policy provided that any uninsured-motorist coverage would be reduced by any workers’ compensation benefits payable to Cahoon. This Court held that the limitation in the policy could not operate to reduce the amount of uninsured-motorist coverage by the amount of workers’ compensation payable to the insured.

Continental points out that the Cahoon Court relied upon, among other cases, Southeast Title Insurance Co. v. Austin, 202 So.2d 179 (Fla.1967), in which the Supreme Court of Florida stated:

“ ‘To the extent, therefore, that the appellant’s policy purports to reduce liability for any loss within the statutory minimum required coverage, it is ineffective and there did not come into existence any contractual obligation subject to impairment.’ ”

Cahoon, 287 Ala. at 467, 252 So.2d at 623 (quoting Austin, 202 So.2d at 180). Continental argues that the rule stated in Ca-hoon cannot bar Continental from limiting its liability for underinsured-motorist coverage to the statutory minimum. Continental contends that the limitation on the holding of Cahoon it advocates is consistent with the general rule that “ ‘in the absence of statutory provisions to the contrary, insurers have the right to limit their liability by writing policies with narrow coverage.’ ” Shrader v. Employers Mwt. Cas. Co., 907 So.2d 1026, 1034 (Ala.2005) (quoting St. Paul Mercury Ins. Co. v. Chilton-Shelby Mental Health Ctr., 595 So.2d 1375, 1377 (Ala.1992)). See also Scott v. Board of Trustees of Mobile S.S. Ass’n, 540 So.2d 657, 658 (Ala.1988) (an insurer “ ‘may, with the insured’s acceptance, insert as many exclusion clauses in its liability policy as it deems proper and necessary so long as they do not conflict with public policy or the statutory laws of the state’ ” (quoting Cotton States Ins. Co. v. Diamond Housing Mobile Homes, 430 F.Supp. 503, 506 (N.D.Ala.1977))).

We decline to decide in this interlocutory appeal whether an insurer can limit its liability for amounts in excess of the statutory minimum of uninsured/un-derinsured-motorist coverage. Although Continental contends that the workers’ compensation limitation in the Continental policy creates a blanket limitation of $60,000 on Pinkston’s underinsured-motorist coverage, it does not appear that that is the case. The limiting clause on which Continental relies reads:

“We will not pay for any element of ‘loss’ if a person is entitled to receive payment for the same element of ‘loss’ under any workers’ compensation, disability benefits or similar law.”

The Pinkstons argue in their brief, as they argued to the trial court in opposition to Continental’s summary-judgment motion, that this provision

“is devoid of any language that would bar John Pinkston from claiming benefits under the policy simply because he may have been entitled to certain workers’ compensation benefits. The clause is devoid of any language that would even limit Pinkston’s total or gross recovery under the policy simply because he may have been entitled to certain workers’ compensation benefits. Continental’s argument does not even comport with the plain language of its proffered clause. As such, Continental’s broad request to place an aggregate limit on available coverage is wholly without merit.”

There are elements of loss a plaintiff may suffer that are not covered by workers’ compensation.

“[I]n order to evaluate properly whether a claim should be paid under the limit-of-liability provision ... [the claims representative for the insurer] should have determined the elements of loss Sock-well had suffered as a result of the automobile accident and compared those to the elements of loss payable under Alabama workers’ compensation law. Under the plain language of the limit-of-liability provision [] any elements of loss suffered by Sockwell, other than those payable under Alabama workers’ compensation law, were reimbursable.”

National Ins. Ass’n v. Sockwell, 829 So.2d 111, 118 (Ala.2002). The Pinkstons argue that, among the elements of loss suffered by Pinkston that are not covered by the Workers’ Compensation Act are: pain and suffering, mental anguish, business and economic losses, and present and future wages. Pinkston contends that the only element of loss covered by the Workers’ Compensation Act, for which some under-insured recovery may also lie, is the payment of some (but not all) of Pinkston’s medical expenses. The Pinkstons argue that determining the nature or amount of the various elements of loss sustained by Pinkston is necessary in order to apply the workers’ compensation limitation in the Continental policy.

Given the language of the workers’ compensation limitation of the policy, it appears that, even if we were to agree with Continental that a workers’ compensation limitation may properly exclude uninsured-motorist coverage beyond the statutorily required amount of coverage, the workers’ compensation limitation in the Continental policy is not, in effect, an aggregate $60,000 “cap” on Continental’s total liability, as Continental contends.

Significantly, the proper interpretation of the language of the Continental policy is not within the scope of the issue certified by the trial court for interlocutory appeal. Thus, Continental would have us decide whether Continental’s liability is capped at $60,000 or at $3,000,000, without regard to the language of the workers’ compensation limitation in the policy.

Continental’s brief is premised on the assumption that the workers’ compensation limitation in the Continental policy operates as a blanket exclusion. The question that the trial court certified for this interlocutory appeal makes that same assumption; it frames the question in such a way that the answer must be that the workers’ compensation provision is a limitation on coverage either of the statutory minimum of $60,000 or of the policy limit of $3,000,000. However, given the plain language of the workers’ compensation limitation in the Continental policy, it does not appear that we can answer the trial court’s question with one of those two answers, nor does it appear that we can meaningfully answer the trial court’s question without considering the policy language.

If we were to answer the trial court’s question, which assumes that the workers’ compensation limitation has an effect it does not appear to have, we would be answering a hypothetical question and essentially issuing an impermissible advisory opinion. “ ‘[I]t is not within the province of this court to decide abstract or hypothetical questions.... Nor is it the province of this court to consider a fictitious case, submitted merely for the purpose of testing the right to do a particular thing.’ ” Siegelman v. Alabama Ass’n of School Boards, 819 So.2d 568, 575 (Ala.2001) (quoting Caldwell v. Loveless, 17 Ala. App. 381, 382, 85 So. 307, 307 (1920)).

If we were to interpret the language of the workers’ compensation limitation in the policy and then decide the legal effect of the limitation as we interpret it, we would be exceeding the scope of the question certified by the trial court. “[T]his Court will not expand its review on permissive appeal beyond the question stated by the trial court. Any such expansion would usurp the responsibility entrusted to the trial court by Rule 5(a)[, Ala. R.App. P.].” BE&K v. Baker, 875 So.2d 1185, 1189 (Ala.2003). In addition, Continental has not addressed the plain language of the workers’ compensation limitation in the policy. After the Pink-stons raised the issue in their brief, Continental replied only that that issue was beyond the question certified by the trial court.

We have, after granting permission to appeal an interlocutory order, dismissed the appeal where it appears to us on review of the record and the arguments made by the parties on appeal that the petition for permission to appeal was improvidently granted, Hughes Beverage Co. v. Hughes, 861 So.2d 1087 (Ala.2003), and State v. Bassett, 364 So.2d 1175 (Ala.1978), and where the issues presented by the briefs are beyond the scope of the issue certified by the trial court, BE&K v. Baker, 875 So.2d 1185.

Conclusion

To decide this interlocutory appeal we would have to either decide a hypothetical question or exceed the scope of the question certified by the trial court. Instead, we exercise judicial restraint and dismiss the appeal.

APPEAL DISMISSED.

NABERS, C.J., and HARWOOD, STUART, and BOLIN, JJ., concur.

      . Ala.Code 1975, § 32-7-23(c), provides:
      "The recovery by an injured person under the uninsured provisions of any one contract of automobile insurance shall be limited to the primaty coverage plus such additional coverage as may be provided for additional vehicles, but not to exceed two additional coverages within such contract.”

      . Unless, of course, the insured waives the uninsured/underinsured-motorist coverage in writing.

      . The limitation-of-liability clause in Sockwell is strikingly similar to the one in this case. The limitation clause in Sockwell reads:

        "We will not pay for any element of loss if a person is entitled to receive payment for the same element of loss under any of the following or similar law:
      "1. Worker’s Compensation Law...
      829 So.2d at 116.

      . The trial court did recognize in its order (outside of the question certified) that the workers' compensation limitation "excludes coverage for any injuries suffered by [Pink-ston] which are also covered by worker's compensation” but apparently did not appreciate the gravity of the fact that the limitation may be narrower than Continental contends.