author: STUART, Justice. COBB, Chief Justice

text:
    Elaine LEISER v. RAYMOND R. FLETCHER, M.D., P.C., a corporation; Raymond R. Fletcher, M.D., an individual.
    1051698.
    Supreme Court of Alabama.
    Aug. 3, 2007.
    Robert J. Hedge and Charles L. Miller, Jr., of Miller & Hedge, Mobile; and Daniel G. Blackburn of Blackburn & Conner, P.C., Bay Minette, for appellant.

      Michael K. Wright and Robert P. Mac-Kenzie III of Starnes & Atchison, LLP, Birmingham; John Peter Crook McCall of Starnes & Atchison, LLP, Mobile; and Bayless E. Biles of Wilkins, Bankester, Biles & Wynne, P.A., Bay Minette, for appellees.
   STUART, Justice.

Elaine Leiser sued Dr. Raymond R. Fletcher and his medical practice, Raymond R. Fletcher, M.D., P.C., in the Baldwin Circuit Court, alleging that Dr. Fletcher had committed medical malpractice when, while performing arthroscopic surgery on her right knee, he accidentally cut blood vessels in the back of her knee. Following an eight-day trial, the jury returned a verdict in favor of Dr. Fletcher and his medical practice. Leiser now appeals from the judgment entered on that verdict. We affirm.

I.

On August 25, 2000, Leiser injured her right knee on an airplane while she was returning home from a trip made on behalf of her employer, Quorum Health Resources, LLC (“QHR”). She first received treatment for the injury from her family doctor; however, when her knee did not improve and because her injury was considered to have occurred on-the-job, QHR eventually referred her to Dr. Fletcher. Dr. Fletcher treated the knee injury conservatively, and Leiser underwent regular physical therapy. However, when the knee still did not show improvement, Dr. Fletcher and Leiser decided that she should have an arthroscopic meniscectomy to remove approximately 90% of the lateral meniscus in the injured knee. On March 22, 2001, Dr. Fletcher performed the meniscectomy upon Leiser. Although Dr. Fletcher was successfully able to remove the selected portions of the lateral meniscus during the 32-minute procedure, it was determined after the surgery that he had also inadvertently cut the veins and the artery located behind the knee capsule. As a result, Leiser was required to undergo six additional surgeries and was left with permanent muscle and nerve damage to her leg.

On February 21, 2002, Leiser sued QHR, seeking worker’s compensation benefits. On October 16, 2002, Leiser amended her complaint to add a medical-malpractice claim against Dr. Fletcher and his medical practice. Leiser’s medical-malpractice claim was sévered from her worker’s compensation action, and, following a lengthy period of discovery, that claim proceeded to trial on April 10, 2006. On April 21, 2006, the jury returned a verdict against Leiser and in favor of Dr. Fletcher and his medical practice. The trial court entered a judgment on the verdict, and, on May 19, 2006, Leiser filed a postjudgment motion seeking a judgment as a matter of law or, in the alternative, a new trial. Leiser argued in that motion that the trial court committed reversible error by allowing Dr. Fletcher to introduce evidence of prior acts, i.e., prior successful surgeries he had performed, that were not the subject of this action because such evidence violated § 6-5-551, Ala.Code 1975, and that the trial court had erred in denying her motion for a judgment as a matter of law because, she claimed, Dr. Fletcher had failed to rebut her prima facie showing that he had violated the applicable standard of care. The trial court denied Leis-er’s motion, and she now makes those same arguments on appeal.

II.

We first consider Leiser’s argument that she is entitled to a new trial because the trial court allowed Dr. Fletcher to introduce evidence of prior acts even though, she claims, such evidence was irrelevant and was prohibited by § 6-5-551. Specifically, Leiser objects to testimony presented by Dr. Fletcher indicating: (1) that he had performed more than 1,500 arthroscopic meniscectomies in his career; (2) that in each of those previous surgeries he had met the standard of care; and (3) that he always uses the same technique when performing this surgery.

In Middleton v. Lightfoot, 885 So.2d 111, 113-14 (Ala.2003), this Court explained the standard of review applicable in this case:

“ ‘ “The standard applicable to a review of a trial court’s rulings on the admission of evidence is determined by two fundamental principles. The first grants trial judges wide discretion to exclude or to admit evidence.” ’ Mock v. Allen, 783 So.2d 828, 835 (Ala.2000) (quoting Wal-Mart Stores, Inc. v. Thompson, 726 So.2d 651, 655 (Ala.1998)). Despite the latitude afforded the trial court in its evidentiary rulings, a trial court exceeds its discretion where it admits prejudicial evidence that has no probative value. See Powell v. State, 796 So.2d 404, 419 (Ala.Crim.App.1999), aff'd, 796 So.2d 434 (Ala.2001).
“ ‘ “The second principle ‘is that a judgment cannot be reversed on appeal for an error [in the improper admission of evidence] unless ... it should appear that the error complained of has probably injuriously affected substantial rights of the parties.’ ” ’ Mock, 783 So.2d at 835 (quoting Wal-Mart Stores, 726 So.2d at 655, quoting in turn Atkins v. Lee, 603 So.2d 937, 941 (Ala.1992)). See also Ala. R.App. P. 45. ‘The burden of establishing that an erroneous ruling was prejudicial is on the appellant.’ Preferred Risk Mut. Ins. Co. v. Ryan, 589 So.2d 165, 167 (Ala.1991).”

We do not reach the issue whether the trial court exceeded its discretion by admitting the challenged testimony, because its judgment is due to be affirmed based on the second principle — Leiser cannot claim she was prejudiced by the trial court’s ruling when, in fact, she introduced substantially identical evidence as part of her case-in-chief.

Leiser began her case at trial by showing the jury portions of Dr. Fletcher’s videotaped depositions. The approximately 1 hour and 26 minutes of footage shown included the following excerpts:

“Q: What protocol do you follow — what is it that you follow that you say reduces the risk of you exiting the knee capsule?
“A: Again, the technique that I follow is I inspect the knee and then I go to the source, and then I use certain instruments that I feel are safe that I have used before. And, again, arthroscopic knee surgery is a technique that you develop a feel for. And when you use the instruments, you have a feel of what you are doing. And you have visualization of a certain portion of that procedure.
“Q: Did you know where you were when you cut the popliteal artery and popliteal veins in Ms. Leiser’s situation — when you cut it?
“A: Again, the standard technique that I used is to probe the meniscus with the scope and to put the instrument in and make the cut and probe it again with the scope. It’s a constant interplay between the probe, instrument and scope.
“Q: Okay, and you know that in doing this procedure, you want to make sure that you do not do anything— or use a technique whereby you would exit that knee capsule; correct?
“A: Well, you use a technique, as described, to trim the — as far as the posterior horn is concerned, in this case, to trim the remaining rim.
“Q: Okay.
“A: And that’s the technique that is used, based on visualization with the probe and the scope and exchanging the probe for the instrument.
“Q: Now, if you were using your technique, Doctor, that is, you knew where you were, and before you made that cut you know what — you knew what tissue you were cutting—
“A: Yes.
“Q: That’s the proper technique, correct?
“A: That’s the proper technique.
“Q: Okay. If you were using the proper technique, then how did you possibly exit the knee capsule, the back of the knee capsule, and lacerate the popliteal artery, completely sever it in two, completely sever a vein and partially sever another vein, if you were using that technique?
“A: I don’t know.
“Q: Does it seem reasonable to you that the reason that you severed that was because you were not using the proper technique at that time, when you were resecting that portion of the posterior horn?
“A: No. I was using the proper technique, based upon my training and experience.
“Q: Well—
“A: Based on visualization with the probe and the cutting instrument and the probe, the alternating three-stage procedure to inspect, cut, and inspect.
“Q: You say that you were, but you don’t remember what you did when you got back there, do you?
“A: Well, I don’t remember the specific details of the procedure. But the — a complex tear of the lateral meniscus, that’s how it’s done and that’s the technique that I was trained in and that’s how I do a meniscectomy.
“Q: And you don’t make for the possibility that, for whatever reason, you didn’t follow that technique in this particular case?
“A: No. I don’t deviate from the technique, as far as doing a meniscec-tomy. It’s a procedure that’s done thousands of times. I’ve done over — well over two thousand of these. Maybe not lateral menis-cectomies, but meniscectomies in general.”

Thus, Leiser herself introduced evidence in which Dr. Fletcher described his technique for performing a meniscectomy, stated that that technique was proper, stated that he had used that technique during Leiser’s surgery, and stated that he had used that same technique to perform over 2,000 meniscectomies, including lateral meniscectomies. Nevertheless, Leiser objects to the following testimony by Dr. Fletcher as part of his defense:

“Q: You’ve got a routine, I think you just told us in 20 years doing this kind of surgery, try to minimize injury to the popliteal artery?
“A: Yes, I have a standardized procedure in which I follow to do all arthroscopic surgery to limit injury.
“Q: Just tell us briefly what are some of those precautions that you’ve done over 20 years.
“A: The precautions I take is to use a standardized procedure in which I was trained. And the standardized procedure is to look at the knee, interior of the knee as I described here, and to establish a field of view so that you can have direct visualization of the area of pathology. And in that field of view, you apply the probe and the cutting instrument and you cut where you know your cutting instrument is.
“Q: Do you have an opinion as to whether or not you had sufficient training and experience to perform that procedure?
“A: Yes. I’m well trained, have done several — over 1,000 arthroscopies, done them the same way every single time. I was well trained and this is the way I do it every single time.
“Q: Based upon your recollection and your operative report, do you have an opinion as to whether or not the technique that you used for Ms. Leiser was consistent and followed the technique that you have been trained and exercised for 20-some-thing years?
“A: The technique that I followed on Ms. Leiser to excise the lateral meniscus is the same technique that I’ve used for over a thousand arthroscopies, 1,500 meniscecto-mies, what I was trained at [Louisiana State University], same technique. Establish the field of view. Insert the instruments. Exactly the same technique. I haven’t deviated from that technique.
“Q: Do you have an opinion as to whether or not the technique that you’ve been trained and use now is a reasonable technique?
“A: It’s a reasonable and recognized technique.
“Q: All right. Did you, from your operative report, your recollection, and your routine of 20 years, do you have an opinion as to whether or not the operative procedure that you performed on March 22, 2001, on Ms. Leiser was reasonable and met the standard of care as exercised by orthopedic surgeons in the national medical community under like or similar circumstances?
“A: Yes, sir. I met the standard of care. I used the same technique I’ve used all the time.
“Q: Taking everything into consideration, did you approach Ms. Leis-er’s care from the beginning until the last time you saw her in a cautious and careful and reasonable manner?
“A: I approached Ms. Leiser’s care with the best that I could provide. The best medical care that I could provide. I worked her up. I thought that she was a proper candidate. I used a standard technique. I took precautions that I always take. I used a standard technique. I did it the same way I’ve done it all the time. And I met the standard of care in performing this surgery. I feel terrible that this happened.”

Leiser objects to other portions of Dr. Fletcher’s testimony as well; however, this representative sample is sufficient to demonstrate that, in fact, there is little substantive difference between the objected-to live testimony given by Dr. Fletcher and the videotaped deposition testimony first introduced into evidence by Leiser herself during her case-in-chief. . Accordingly, Dr. Fletcher’s live testimony was merely cumulative and, even if it was irrelevant and violated § 6-5-551, Leiser was not prejudiced by its admission. See Dawson v. State, 675 So.2d 897, 900 (Ala.Crim.App.1995) (“The erroneous admission of evidence that is merely cumulative is harmless error.” (citing Reese v. City of Dothan, 642 So.2d 511 (Ala.Crim.App.1993)); see also Ex parte D.L.H., 806 So.2d 1190, 1193 (Ala.2001) (“ ‘ “A party who has brought out evidence on a certain subject has no valid complaint as to the trial court’s action in allowing his opponent or adversary to introduce evidence on the same subject.”’” (quoting Hubbard v. State, 471 So.2d 497, 499 (Ala.Crim.App.1984), quoting in turn Brown v. State, 392 So.2d 1248, 1260 (Ala.Crim.App.1980))).

III.

We next consider Leiser’s argument that Dr. Fletcher failed to present competent evidence rebutting her prima facie showing that he violated the applicable standard of care and that the trial court accordingly erred in failing to grant her motion for a judgment as a matter of law. In Waddell & Reed, Inc. v. United Investors Life Insurance Co., 875 So.2d 1143, 1152 (Ala.2003), this Court explained the standard of review applied to a ruling on a motion for a judgment as a matter of law:

“When reviewing a ruling on a motion for a [judgment as a matter of law], this Court uses the same standard the trial court used initially in deciding whether to grant or deny the motion for a [judgment as a matter of law]. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala.1997). Regarding questions of fact, the ultímate question is whether the nonmovant has presented sufficient evidence to allow the case to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So.2d 1350 (Ala.1992). The nonmovant must have presented substantial evidence in order to withstand a motion for a [judgment as a ■ matter of law]. See § 12-21-12, Ala. Code 1975; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. Carter, 598 So.2d at 1353. In reviewing a ruling on a motion for a [judgment as a matter of law], this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw. Id.”

During her case-in-chief, Leiser presented expert testimony indicating that “Dr. Fletcher breached the standard of care by cutting the [popliteal blood] vessels, which were outside the surgical field, when he could not see the tip of his cutting instrument, when he could not see the tissue he was cutting (the vessels), and by not properly identifying the correct tissue before he cut it.” (Leiser’s brief, pp. 50-51.) Therefore, under the applicable standard of review, our inquiry is whether Dr. Fletcher has presented sufficient evidence indicating that he did not breach the standard of care so as to allow the case to be submitted to the jury. We answer that question in the affirmative.

At trial, Dr. Fletcher called Dr. Todd Volkman to testify in his defense. Under cross-examination, Dr. Volkman testified as follows:

“Q: If an orthopedic surgeon can’t see tissue at all at any point in time during his procedure and he starts cutting, would that be a breach of the standard of care?
“A: When you say cannot see the tissue at all, could you place that in context, please?
“Q: Yes. In performing — I thought we were talking about [Leiser’s] procedure. You understand it was a lateral meniscectomy?
“A: Yes?
“Q: And Dr. Fletcher exited the posterior capsule and cut the popliteal vessels, correct?
“A: Yes.
“Q: All right. And I asked you, you testified for the jury earlier that there’s no way with the scope to see behind the capsule, didn’t you?
“A: Yes.
“Q: Okay. So he—
“A: But—
“Q: —never saw the popliteal vessels when he was cutting, correct?
“A: That is correct. However, if he is taking great time and effort to assess the tissue that he is about to cut and has responsibly done that and is comfortable doing it and experienced doing it and makes the cut, and that happens, that does not mean that he — that he is outside of the standard of care. It’s possible to have damaged the po-pliteal — those three structures that are tight together behind the lateral meniscus and still be operating within the standard of care. Just because that happened, it does not mean since this happened, then this is malpractice. It’s not — it’s not that way.
“Q: Doctor, he didn’t inspect behind the capsule with the scope, did he? He couldn’t see?
“A: If he inspected the meniscus and was comfortable. If he’s experienced and he inspected the meniscus and was comfortable with the cut he was going to make and made the cut and inadvertently it went through the capsule and damaged these vessels, then that is not malpractice. He did not see that. But he did what is reasonable. If we got — if I got in trouble every time I cut something I didn’t mean to, even though I took care, I’d be out of business.
“Q: Have you stated your position? Are you finished?
“A: I believe for that portion of your question, I have.
“Q: All right. Now, I’d like to get back to my question. And I’d like to get an answer to it.
“A: Yes, sir.
“Q: All right, Dr. Fletcher couldn’t see the popliteal vessels with the scope. You’ve already told us that’s impossible, correct? You stated that during an arthroscopy, you can’t see behind the capsule with the scope, correct?
“A: Yeah, that’s correct.
“Q: All right. So there’s no way to inspect any tissues posterior to the capsule, correct, outside?
“A: That would not — that’s not usually done.
“Q: All right. So if some — if Dr. Fletcher went behind the capsule and started cutting, number one, he couldn’t see it, number, two, he never could have inspected it, that would be a breach, wouldn’t it?
“A: No.
“Q: Why not?
“A: If he took the time to palpate the meniscus, assess it, and was comfortable with the tissue that was going to be cut and made the cut, and if after having done that, that penetrated the capsule and damaged the vessels, then in my opinion that is not malpractice. It’s an unfortunate event. And it’s sad that it’s happened. But the truth is that’s not — that doesn’t mean that he was back there irresponsibly. It’s possible to have this injury and still be operating within the standard of care.
“Q: Doctor, have you ever severed the popliteal artery and vein during an arthroscopic meniscectomy?
“A: No. It is a rare event.
“Q: And you know what, Doctor, it’s true isn’t it, that when you cut, you personally make sure that your cutting tip is in view, don’t you?
“A: No, I mean, I try my best. But like I’ve said several times before, it is physically impossible to always see the cutting tip at all times during the cut. It’s not possible.
“Q: Are you saying that you personally do not cut what you can’t see?
“A: I probe the tissue. I assess it. And I make myself comfortable with it. But while the cut is being made, it is not possible to make the cut with the shaver and see the cutting surface. You have to be careful when you’re doing this, and I don’t want anyone to think that this is a haphazard procedure because it’s not. But in order to cut the meniscus with the shaver device, the shaver device has — it’s impossible to see through the shaver to the cutting edge.
“Q: Doctor, I don’t understand. You’re mentioning a shaver. Are you not aware that Dr. Fletcher testified that it’s his- best guess that he did it with the biting forceps?
“A: Same thing with the biting forceps, you put the biting forceps back there and you’re looking at it from the handle side to the biting side. And the shaft of the instrument is obscuring the biting tips. You have an idea where it is and you poke and you put those biting forceps back to the same area where you were probing before, and when you put it back there and open it up and come down, it’s frequently very difficult to see it at all times.
“Q: All right. So this [holding forceps] is the instrument that we’re talking about, right? And now getting back to my question, you personally make sure that you see what you cut, don’t you?
“A: I personally inspect the tissue thoroughly and make myself comfortable with what is going to be cut before applying the basket forceps and making the cut.
“Q: Well, why don’t we just look at your deposition?
“A: Okay.
“Q: That’s correct testimony, isn’t it?
“A: Yes.
“Q: Okay. Page 254, beginning on line 4. We’ll go through the whole litany so that we’re clear on this. They’re going to flash it on the screen.
“A: I just want to kind of get the feel of the whole thing.
“Q: It’s going to be most of the page because I want to be sure that you’re accurate. Beginning at line 4, you were asked, ‘Can you or can you not see the entire posterior horn and lateral meniscus when you sweep the scope?’ And your answer was, ‘Sometimes you can. Sometimes you can’t.’ Right?
“A: Yes.
“Q: Okay. And then the next question was, ‘When you can’t see it at all, that means you can’t do an inspection of it, correct?’ And what is your answer, Doctor?
“A: Well, if you have in general — if I have trouble seeing it from the— one portal, I’ll switch to the other portal and, you know, do whatever you need to do to see it. And if you can’t see it, you can’t see it.’
“Q: And the next question was, ‘And if you can’t see it even by switching the portals, then you don’t do any cutting back there, correct?’ And what was your answer?
“A: Tes, I personally do not do any cutting that I can’t inspect.’
“Q: And then follow down. Okay. And your answer is?
“A: ‘Or I can’t see.’
“Q: Or can’t see?
“A: ‘Or can’t see.’
“Q: Right?
“A: Inspect or, yes, if I cannot see the area at all where I think the problem is, I will not cut back there.
“Q: You personally don’t cut what you can’t see. And that’s being a good doctor?
“A: Well, what I haven’t seen before, I personally do not cut. If I — you know, I think that’s it. If I can’t see it — if I haven’t been able to see it with the scope or haven’t been able to palpate it with the scope, then I will not cut.
“Q: Doctor, if you stay inside the knee capsule with the cutting instruments during this procedure, you eliminate the possibility of cutting the popliteal vessels, correct?
“A: Yes, if you stay fully within the capsule.
“Q: And if you do this surgery correctly, you don’t injure the popliteal vessels, correct?
“A: That is incorrect. The risk is always present, even—
“Q: Let’s go to page 216 of your deposition, Doctor. Line 7. ‘Doctor, if you do this surgery properly, you don’t cut the popliteal artery, do you?’ And what is your answer at line 11?
“A: ‘Ideally not.’”

Thus, while Leiser presented evidence indicating that Dr. Fletcher breached the standard of care by “cutting the [popliteal blood] vessels, which were outside the surgical field, when he could not see the tip of his cutting instrument, when he could not see the tissue he was cutting (the vessels), and by not properly identifying the correct tissue before he cut it,” Dr. Volkman testified that even though that may be true— that Dr. Fletcher accidentally left the surgical field and cut the popliteal blood vessels when he could not see either his cutting instrument or the arterial and venous tissue being cut — those actions do not automatically constitute a breach of the standard of care:

“If he’s experienced and he inspected the meniscus and was comfortable with the cut he was going to make and made the cut and inadvertently it went through the capsule and damaged these vessels, then that is not malpractice. He did not see that. But he did what is reasonable.”

Thus, although Leiser established a pri-ma facie case indicating that Dr. Fletcher did breach the standard of care, Dr. Volk-man’s testimony, combined with Dr. Fletcher’s testimony regarding the technique he used on Leiser, indicated that Dr. Fletcher did not breach the standard of care. A factual question was therefore presented and that question was properly submitted to the jury. Accordingly, Leis-er’s motion for a judgment as a matter of law was correctly denied.

IV.

Leiser argues that the trial court committed reversible error by allowing Dr. Fletcher to introduce evidence of prior acts, i.e., previous successful surgeries he had performed, that were not the subject of this action, and that Dr. Fletcher failed to rebut her showing that he had violated the applicable standard of care. However, even if the trial court erred by allowing the objected-to evidence, Leiser was not prejudiced by that error because she had earlier submitted into evidence substantially similar evidence. Moreover, the testimony of Dr. Fletcher and Dr. Volkman was sufficient to rebut Leiser’s showing that Dr. Fletcher had violated the standard of care while performing surgery on Leiser, and the case was accordingly properly submitted to the jury. For these reasons, the judgment entered in favor of Dr. Fletcher and his medical practice is affirmed.

AFFIRMED.

SEE, LYONS, WOODALL, SMITH, BOLIN, and PARKER, JJ., concur.

MURDOCK, J., concurs in the result.

COBB, C.J., concurs in the rationale in part and concurs in the result.

COBB, Chief Justice

(concurring in the rationale in part and concurring in the result).

I concur with the majority in the analysis in Part III of the opinion; however, I concur in only the result of the analysis in Part II. In Part II, the majority refuses to reach the issue whether the trial court exceeded its discretion in denying Leiser’s motion in limine concerning evidence of Dr. Fletcher’s prior acts and thus allowing that evidence to be introduced at trial. I write specially to explain why I believe, had it been properly preserved, an objection to the denial of the motion in limine would have shown reversible error.

Section 6-5-551, Ala.Code 1975, part of the Alabama Medical Liability Act of 1987, provides:

“In any action for injury, damages, or wrongful death, whether in contract or in tort, against a health care provider for breach of the standard of care, whether resulting from acts or omissions in providing health care, or the hiring, training, supervision, retention, or termination of care givers, the Alabama Medical Liability Act shall govern the parameters of discovery and all aspects of the action. The plaintiff shall include in the complaint filed in the action a detailed specification and factual description of each act and omission alleged by plaintiff to render the health care provider liable to plaintiff and shall include when feasible and ascertainable the date, time, and place of the act or acts. The plaintiff shall amend his complaint timely upon ascertainment of new or different acts or omissions upon which his claim is based; provided, however, that any such amendment must be made at least 90 days before trial. Any complaint which fails to include such detailed specification and factual description of each act and omission shall be subject to dismissal for failure to state a claim upon which relief may be granted. Any party shall be prohibited from conducting discovery with regard to any other act or omission or from introducing at trial evidence of any other act or omission.”

(Emphasis added.) When initially enacted by the legislature, § 6-5-551 provided that only the “[pjlaintiff shall be prohibited from conducting discovery with regard to any other act or omission or from introducing at trial evidence of any other act or omission.” As initially written, § 6-5-551 prohibited the plaintiff in a medical-malpractice case from introducing evidence of prior bad acts and omissions by the defendant, but the defendant health-care provider was permitted to introduce evidence of his prior good acts so long as doing so did not violate the Alabama Rules of Evidence. This was obviously one-sided, and as Justice Johnstone noted in commenting on that version of § 6-5-551, “what is sauce for the goose should be sauce for the gander.” Ex parte Pfizer, Inc., 746 So.2d 960, 966 (Ala.1999) (Johnstone, J., dissenting). The Alabama Legislature, realizing the inequity presented by this statute, amended it in 2000 to provide that “any party ” is prohibited from introducing evidence of any other act or omission at trial.

Regarding § 6-5-551 as amended in 2000, this Court has previously noted: “We have reviewed the language of the statute, and we conclude that its meaning could not be clearer.” Ex parte Anderson, 789 So.2d 190, 195 (Ala.2000). As Justice Houston noted:

“Section 6-5-551 states that in a medical-malpractice action, ‘[a]ny party shall be prohibited from conducting discovery with regard to any other act or omission or from introducing at trial evidence of any other act or omission.’ We repeatedly interpreted this provision according the plain-meaning rule, ruling inadmissible evidence of ‘other act[s] or omission[s]’ outside those specifically pleaded. Ex parte Coosa Valley Health Care, Inc., 789 So.2d 208, 218 (Ala.2000); Ex parte Anderson, 789 So.2d 190, 195 (Ala.2000); Ex parte Ridgeview Health Care Ctr., Inc., 786 2d 1112, 1116-17 (Ala.2000).”

Middleton v. Lightfoot, 885 So.2d 111, 116—17 (Ala.2003) (Houston, J., concurring specially). Dr. Fletcher’s testimony regarding the number of successful arthroscopies he had performed without complication obviously is evidence of “other act[s]” that is encompassed in the prohibition found in § 6-5-551. Thus, the trial court erred in not granting Leiser’s motion in limine regarding evidence concerning prior surgeries performed by Dr. Fletcher.

Dr. Fletcher argues that his testimony was permissible because, he says, he testified not only as a defendant, but also as his own expert in regard to the standard of care. ' Therefore, he contends, under § 6-5-548, Ala.Code 1975, his testimony regarding prior successful surgeries was necessary in order for him to be qualified as an expert. However, a review of the record indicates that Dr. Fletcher never asked the trial court to consider him an expert on the issue of the standard of care, nor did the trial- court ever declare him an expert on the standard of care. Thus,, Dr. Fletcher could not have been considered an expert in this case.

Even had Dr. Fletcher been deemed an expert by the trial court, I do not believe that § 6-5-548 can be used to circumvent the mandate of § 6-5-551 that other acts and omissions of any party are precluded as evidence at trial. Section 6-5-548(e) states, in pertinent part: “A health care provider may testify as an expert witness in any action for injury or damages against another health care provider based on a breach of the standard of care only if he or she is a ‘similarly situated health care provider’ as defined above.” (Emphasis added.) Section 6-5-548 contemplates a health-care provider testifying against or for another health-care provider; it does not contemplate a health-care provider testifying as his or her own expert witness. Thus, I believe it would have been improper for Dr. Fletcher to provide testimony as to the number of other surgeries he had performed and the outcome of those surgeries in order to “qualify” himself as an expert.

It should be noted, however, that had this Court addressed the issue whether the trial court erred by denying Leiser’s motion in limine, it most likely would have reached the same result. I was unable to find in the record where Leiser asked for, or received, a standing objection to Dr. Fletcher’s testimony concerning his prior surgeries. Although Leiser did object intermittently to Dr. Fletcher’s testimony regarding his prior surgeries, Leiser’s attorney failed to object to much of the testimony in question. “ ‘ “[UJnless the trial court’s ruling on the motion in limine is absolute or unconditional, the ruling does not preserve the issue for [appellate review].” ... If the ruling is not absolute, proper objections at trial are necessary to preserve the issue.’ ” Ex parte Martin, 931 So.2d 759, 763 n. 1 (Ala.2004) (quoting Central Alabama Elec. Coop. v. Tapley, 546 So.2d 371, 382 (Ala.1989), quoting in turn Perry v. Brakefield, 534 So.2d 602, 606 (Ala.1988)). It is apparent that Leiser knew that she was required to object during Dr. Fletcher’s testimony in order to preserve the issue of the denial of the motion in limine, as evidenced by the following statement by her attorney to the trial court during a sidebar conference:

“I don’t know if I should make an offer of proof. I know I can’t refer back to my motion in limine because it’s already been denied. The motion in limine, you denying it doesn’t preclude this right here. That’s the purpose of it. The law is we have to reassert that during our case-in-chief or else it’s waived. I don’t mean to be caught waiving anything.”

However, there was no standing objection, and the intermittent objections made during Dr. Fletcher’s testimony were insufficient to preserve this issue for this Court’s review.

Because I believe that the trial court’s denial of Leiser’s motion in limine constituted error but that that error was not properly preserved for appellate review, I concur only as to the result of Part II of the opinion.

      . Leiser’s husband, Ted Leiser, also added a loss-of-consortium claim in the amended complaint; however, that claim was eventually dismissed.

      . Section 6-5-551 provides, in relevant part:
      “In any action for injury, damages, or wrongful death, whether in contract or in tort, against a health care provider for breach of the standard of care, ... the Alabama Medical Liability Act shall govern the parameters of discovery and all aspects of the action. The plaintiff shall include in the complaint filed in the action a detailed specification and factual description of each act and omission alleged by plaintiff to render the health care provider liable to plaintiff and shall include when feasible and ascertainable the date, time, and place of the act or acts.... Any party shall be prohibited from conducting discovery with regard to any other act or omission or from introducing at trial evidence of any other act or omission.”

      . Chief Justice Cobb, in her opinion concurring in the rationale in part and concurring in the result, states that “the majority refuses to reach the issue whether the trial court exceeded its discretion in denying Leiser’s motion in limine.” 978 So.2d at 710. However, the decision not to address that issue is less a refusal and more a recognition of the principle that this Court should avoid the inclusion of dicta in its opinions. As the United States District Court for the Middle District of Alabama stated when declining to address an issue not necessary to the resolution of the case before it: ”[I]t is unnecessary for the court to answer that question to resolve the present case/controversy before this court. The court exercises reasonable judicial restraint and declines to reach a conclusion that is only dicta.” Professional Helicopter Pilots Ass'n v. Lear Siegler Servs., Inc., 326 F.Supp.2d 1305, 1318 n. 13 (M.D.Ala.2004).

      . Dr. Fletcher disputes that the challenged testimony violated § 6-5-551 or that it was irrelevant. However, because of our resolution of this issue, we need not consider, and we express no opinion regarding, Dr. Fletcher’s argument to that effect.

      . Leiser argues that Dr. Fletcher’s testimony regarding the technique he used during her surgery was mere speculation because he could not remember all of the details of the procedure. However, although Dr. Fletcher admitted not knowing when the blood vessels were cut, he could recall portions of the procedure, and he was certain as to the technique he used on Leiser. Moreover, both he and Dr. Volkman testified as to the propriety of that technique. Their combined testimony was sufficient to merit sending the case to the jury. Of course, the jury was free to consider Dr. Fletcher’s imperfect recollection of the surgery when deciding what weight to give his testimony. Tidwell v. Upjohn, Co., 626 So.2d 1297, 1300 (Ala.1993).


source: Caselaw Access Project

author: COBB, Chief Justice.

license: Public Domain

text:
    Venus FEAGINS, individually and as next friend of Tamesha Feagins, a minor v. Curtis WADDY and George Moore.
    1051349.
    Supreme Court of Alabama.
    Aug. 3, 2007.

      Derrick K. Collins, Birmingham, for appellant.
    Mark S. Boardman and Daniel P. Ogle of Boardman, Carr & Hutcheson, P.C., Chelsea, for appellees.
   COBB, Chief Justice.

Venus Feagins, individually and as next friend of her daughter Tamesha Feagins, a minor, appeals from a summary judgment in favor of defendants Curtis Waddy and George Moore. We affirm.

I. Background

During the 2002-2003 academic year, Tamesha Feagins was an eighth-grade student at Center Street Middle School in Birmingham, where she participated in track and field. On April 12, 2008, the Center Street Middle School track team participated in a city-wide track meet for middle schools held at Parker High School. Tamesha was late for the track meet, and she missed her first event. According to Tamesha, when she arrived at the track meet, Waddy, the coach of the Center Street track team, told her that she had to perform in the high-jump event, an event Tamesha had never done. Tamesha told Waddy that she did not know how to perform a high jump, to which Waddy responded that she was one of his best runners and that he knew she could perform the high jump. When Tamesha reiterated that she did not know how to perform a high jump, Waddy responded that he was the coach and that she could do it. Tame-sha contends that Waddy did not instruct her in the proper form and technique in performing the high jump. However, Tamesha acknowledges that she had previously watched the high-jump competition.

As Tamesha attempted a practice jump, she felt pain in her left knee. An athletic trainer at the track meet examined Tame-sha’s knee and wrapped it in ice; she was unable to compete in the high-jump event. It was later determined that Tamesha had torn her anterior cruciate ligament (“ACL”); the tear required surgery to repair.

On April 1, 2005, Feagins, individually and as Tamesha’s next friend, sued Waddy and George Moore, the athletic director for Birmingham City Schools, the school system for the City of Birmingham, in the Jefferson Circuit Court. She alleged that Waddy negligently, willfully, wantonly, and in bad faith failed to adequately train and supervise Tamesha in the high jump, re-suiting in her injury. She also alleged that Waddy and Moore had negligently, willfully, wantonly, and in bad faith failed to notify her of insurance the Birmingham Board of Education had in place that would have been available to pay Tame-sha’s medical expenses and to notify the insurer of Tamesha’s injury. She further sought compensation for the loss of Tame-sha’s services. Waddy and Moore moved for a summary judgment, arguing that they were entitled to State-agent immunity and that they had no duty to notify the insurer of Tamesha’s injury; the trial court entered a summary judgment in their favor on May 9, 2006. Feagins appealed.

II. Standard of Review

“This Court’s review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala.2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-53 (Ala.2004). In making such a determination, we must review the evidence in the light most favorable to the non-movant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce ‘substantial evidence’ as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); Ala.Code 1975, § 12-21-12.”

Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala.2004).

III. Analysis

Feagins argues that the trial court erred in entering a summary judgment for Waddy because a question of material fact exists as to whether Waddy trained Tame-sha in the proper technique for performing the high jump. She argues that Waddy had no discretion in training Tamesha and thus that he was performing a ministerial function instead of a discretionary function and is not protected by the doctrine of sovereign immunity. We disagree.

“Since [Ex parte] Cranman[, 792 So.2d 392 (Ala.2000) ], we analyze immunity issues in terms of ‘State-agent’ immunity rather than ‘under the dichotomy of ministerial versus discretionary functions.’ ” Howard v. City of Atmore, 887 So.2d 201, 203 (Ala.2003)(quoting Ex parte Hudson, 866 So.2d 1115, 1117 (Ala.2003)). In Ex parte Cranman, 792 So.2d 392 (Ala.2000), a plurality of this Court restated the rule governing State-agent immunity:

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

792 So.2d at 405 (some emphasis added). In Ex parte Butts, 775 So.2d 173 (Ala.2000), a majority of this Court adopted the Cranman restatement of the rule governing State-agent immunity.

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

Giambrone v. Douglas, 874 So.2d 1046, 1052 (Ala.2003).

This Court addressed a similar issue in Ex parte Nall, 879 So.2d 541 (Ala.2003). In Nall, a baseball hit by a high school baseball coach during a practice drill struck a player in the head. The player’s parents sued the baseball coach, alleging that the coach was acting “tortiously” when he hit the baseball and that he therefore was not protected by State-agent immunity. Specifically, they argued that the coach was hitting the ball too hard because some players had been teasing him for not hitting the ball very hard. The Nall Court noted:

“There is no exception under Cran-man for ‘tortious’ conduct unless the State agent ‘acts willfully, maliciously, fraudulently, in bad faith, beyond his ... authority, or under a mistaken interpretation of the law.’ Cranman, 792 So.2d at 405. Once a State agent demonstrates that a plaintiffs claims are based on conduct that occurred while the State agent was exercising his judgment, ‘ “the burden then shifts to the plaintiff to establish that the [State agent] acted in bad faith or with malice or willfulness in order to deny the [State agent] immunity from suit.” ’ [Ex parte] Spivey, [846 So.2d 322, 333 (Ala.2002) ] (quoting Ex parte Davis, 721 So.2d 685, 689 (Ala.1998)).”

879 So.2d at 546. The Court concluded that although the coach may have been hitting the ball hard, there was no evidence indicating that doing so was outside the intended scope or nature of the practice drill the coach was conducting. Therefore, the coach’s actions did not fall under one of the Cranman exceptions to State-agent immunity.

In limited circumstances this Court has held that State-agent immunity does not apply to the actions of a coach. In Giam-brone, supra, Douglas, a 29-year-old, 200-pound wrestling coach, wrestled Giam-brone, a 15-year-old, 150-pound student, in a challenge wrestling match during practice. While Douglas was performing a wrestling maneuver called a “cement job” on Giambrone, Giambrone suffered a severe spinal-cord injury, which rendered him a quadriplegic. Giambrone’s mother, acting individually and on behalf of Giam-brone, sued Douglas. Douglas claimed that his actions were protected by State-agent immunity. This Court noted: “A State agent acts beyond his authority and is therefore not immune when he or she ‘fail[s] to discharge duties pursuant to detailed rules or regulations, such as those stated on a checklist.’ Ex parte Butts, 775 So.2d 173, 178 (Ala.2000).” 874 So.2d at 1052. Although the local board of education had not adopted any rules, regulations, policies, or procedures establishing how wrestling practice was to be conducted, the high school athletic director had furnished Douglas with the guidelines and rules of the Alabama High School Athletic Association (“AHSAA”) and the National Federation of Wrestling (“NFW”), as well as the Alabama High School Athletic Directors and Coaches Association Directories (“the Athletic Directories”). Both the AHSAA and NFW rules addressed potentially dangerous wrestling holds and illegal headlocks. Likewise, the Athletic Directories contained a code of conduct that prohibited “inequitable competition.” This Court concluded that the athletic director exercised judgment the local board allowed him to exercise in giving Douglas the rules and guidelines of the AHSAA and NFW, as well as the Athletic Directories. “We cannot agree that such guidelines and rules must be adopted by the Board before they can create a duty on Douglas’s part.” 874 So.2d at 1055. Thus, this Court concluded that the summary judgment based on State-agent immunity was inappropriate as to the coach in that situation.

In this case, no evidence refuting Waddy and Moore’s summary-judgment motion was properly before the trial court. The record indicates that the trial court instructed Feagins to file a response to the summary-judgment motion on or before May 5, 2006, and that a hearing on the motion was to be held on May 8, 2006. The trial court entered the summary judgment on May 9, 2006, and Feagins did not file her response to the summary-judgment motion until May 10, 2006, a day after the summary judgment was entered. Any response to Waddy and Moore’s summary-judgment motion had to be served on the court at least two days before the scheduled hearing. Rule 56(c)(2), Ala. R. Civ. P. Because May 6, 2006, was a Saturday and the hearing was on Monday, the trial court ordered a response by Friday, May 5. The trial court was certainly entitled to disregard Feagins’s submission as untimely under Rule 56(c)(2), Ala. R. Civ. P., and nothing in the record indicates that the trial court considered her tardy response. Even assuming that the trial court chose to consider it, however, Feag-ins’s submission fails to create a question of fact that would defeat Waddy and Moore’s motion for a summary judgment. Specifically, Feagins failed to properly present the trial court with evidence of the kind that existed in Giambrone, i.e., rules or regulations providing guidance for Wad-dy. The record does indicate that Feagins attached to her response to the summary-judgment motion what appear to be excerpted pages from the AHSAA rules and regulations. These pages, however, are not authenticated in any manner. “Documents submitted in support of or in opposition to a summary-judgment motion are generally required to be certified or otherwise authenticated; if they are not, they constitute inadmissible hearsay and are not considered on summary judgment.” Tanksley v. ProSoft Automation, Inc., [Ms. 1050099, June 1, 2007] — So.2d -, - (Ala.2007). Thus, we will not consider those documents in our analysis.

As was the case in Nall, it is undisputed that Waddy was discharging his duties in educating students by coaching the track team. By selecting which participants would participate in which event, Waddy was exercising his judgment in discharging his duties in educating students, and “we may not second-guess his decision.” Ex parte Spivey, 846 So.2d 322, 332 (Ala.2002).

The notice of appeal and docketing statement to this Court indicate that Feagins also appealed the summary judgment entered in favor of Moore. However, Feagins fails to address the summary judgment entered in favor of Moore in her brief to this Court. Feagins does not pursue on appeal her allegation that Waddy and Moore breached a duty to inform the Board of Education’s insurer of Tamesha’s injury and to notify Tamesha of the availability of insurance to cover her injury. “Issues not argued in a party’s brief are waived.” Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875 So.2d 1143, 1167 (Ala.2003). We therefore do not disturb the summary judgment in favor of Moore and Waddy on this issue.

IV. Conclusion

Because the trial court correctly determined that Waddy is entitled to State-agent immunity relating to the decisions he made as a track-and-field coach at a public school, we affirm the summary judgment in his favor. Because Feagins makes no argument on appeal as to Moore, we affirm the summary judgment in his favor.

AFFIRMED.

SEE, LYONS, WOODALL, STUART, SMITH, BOLIN, and PARKER, JJ„ concur.

MURDOCK, J., concurs in the result.

      . Waddy disputes Feagins’s allegations. According to Waddy, he asked Tamesha to perform the high jump because he was shorthanded in that event and she had previously successfully competed in the long jump. Waddy also contends that he instructed Tame-sha individually on the proper technique associated with the high jump before she attempted it and that he had instructed the track team earlier in the season regarding the proper technique for performing the high jump. Waddy also disputes that he forced Tamesha to perform in the high-jump competition.


author: BOLIN, Justice.

text:
    EX PARTE ALABAMA DEPARTMENT OF TRANSPORTATION. (In re S & M Equipment Company, Inc. v. Alabama Department of Transportation, Colbert County, and John Bedford).
    1051661.
    Supreme Court of Alabama.
    Aug. 10, 2007.

      Kyle T. Smith and Jaime C. Erdberg of Sirote & Permutt, P.C., Birmingham; and Jim R. Ippolito, Jr., chief counsel for petitioner Alabama Department of Transportation.
    Jack G. Kowalski, L. Griffin Tyndall, and David G. Wanhatalo of Burr & For-man, LLP, Birmingham, for respondents S&M Equipment Company, Inc.; and Jacqueline M. Hatcher, circuit judge, Colbert County.
    Craig S. Dillard of Webb & Eley, P.C., Montgomery; and James A. Patton, Tus-cumbia, for respondents Colbert County and John Bedford. .
   BOLIN, Justice.

The Alabama Department of Transportation (“ALDOT”) petitions this Court for a writ of mandamus directing the Colbert Circuit Court to enter an order dismissing the breach-of-contract claim asserted by S & M Equipment Company, Inc. (“S & M Equipment”), against it. ALDOT has demonstrated a clear legal right to the relief requested; therefore, we grant the petition and issue the writ.

Facts and Procedural Background

S&M Equipment entered into a contract with ALDOT pursuant to which S & M Equipment would widen, resurface, and stripe approximately 1.116 miles of roadway in Colbert County. ALDOT agreed to pay S&M Equipment a fixed sum for the performance of the designated work. According to S & M Equipment, it performed the work in accordance with the contract, but ALDOT “breached the express and implied terms of the contract by, inter alia, failing to pay S&M Equipment for work properly performed by S & M Equipment, by ordering the removal of work performed in accordance with [AL-DOT’s] direction and instructions, and by requiring S&M Equipment to perform work without making payment.”

S&M Equipment sued ALDOT, Colbert County, and John Bedford, the county engineer, alleging breach of contract, negligence, suppression, and unjust enrichment. S & M Equipment also requested a judgment declaring ALDOT responsible for paying S & M Equipment in accordance with the terms of the contract and with the requirements of Alabama statutory law for the services rendered. Additionally, S & M Equipment asked the trial court to declare that ALDOT must pay S & M Equipment’s “attorneys’ fees, costs, and expenses, and such other relief as the court may deem just and equitable.”

ALDOT moved to dismiss all the claims against it, pursuant to Rule 12(b)(1), Ala. R. Civ. P. In its motion to dismiss, AL-DOT, among other grounds, alleged that the trial court did not have subject-matter jurisdiction because as a State agency AL-DOT is entitled to State immunity. The trial court conducted a hearing and then dismissed all the claims against ALDOT except the breach-of-contract claim. AL-DOT now petitions this Court for a writ of mandamus ordering the trial court to dismiss the breach-of-contract claim.

Standard of Review

“As this Court has consistently held, the writ of mandamus is a

“‘“drastic and extraordinary writ that will be issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.” ’

“Ex parte Wood, 852 So.2d 705, 708 (Ala.2002) (quoting Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993)). ‘ “In reviewing the denial of a motion to dismiss by means of a mandamus petition, we do not change our standard of review ....’” Drummond Co. v. Alabama Dep’t of Transp., 937 So.2d 56, 57 (Ala.2006) (quoting Ex parte Haralson, 853 So.2d 928, 931 (Ala.2003)).

“‘In Newman v. Savas, 878 So.2d 1147 (Ala.2003), this Court set out the standard of review of a ruling on a motion to dismiss for lack of subject-matter jurisdiction:
“ ‘ “A ruling on a motion to dismiss is reviewed without a presumption of correctness. Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993). This Court must accept the allegations of the complaint as true. Creola Land Dev., Inc. v. Bentbrooke Housing, L.L.C., 828 So.2d 285, 288 (Ala.2002). Furthermore, in reviewing a ruling on a motion to dismiss we will not consider whether the pleader will ultimately prevail but whether the pleader may possibly prevail. Nance, 622 So.2d at 299.”
“ ’878 So.2d at 1148-49.’
“Pontius v. State Farm Mut. Auto. Ins. Co., 915 So.2d 557, 563 (Ala.2005). We construe all doubts regarding the sufficiency of the complaint in favor of the plaintiff. Drummond Co., 937 So.2d at 58.”

Ex parte Alabama Dep’t of Transp., 978 So.2d 17, 20-21 (Ala.2007).

Analysis

ALDOT contends that the trial court erred in failing to dismiss S & M Equipment’s breach-of-contract claim because, it says, the trial court does not have subject-matter jurisdiction. According to ALDOT, the trial court lacks subject-matter jurisdiction because, it argues, as an agency of the State, it is entitled to State immunity.

“This Court has long held that ‘ “ ‘the circuit court is without jurisdiction to entertain a suit against the State because of Sec. 14 of the Constitution.’ ” ’ Larkins v. Dep’t of Mental Health & Mental Retardation, 806 So.2d 358, 364 (Ala.2001) (quoting Alabama State Docks Terminal Ry. v. Lyles, 797 So.2d 432, 435 (Ala.2001), quoting in turn Aland v. Graham, 287 Ala. 226, 229, 250 So.2d 677, 678 (1971)). ‘[A]n action contrary to the State’s immunity is an action over which the courts of this State lack subject-matter jurisdiction.’ Larkins, 806 So.2d at 363.
“There are exceptions to the State’s sovereign immunity.
“ A state official is not immune from an action that (1) seeks to compel a state official to perform his or her legal duties, (2) seeks to enjoin a state official from enforcing unconstitutional laws, (3) seeks to compel a state official to perform ministerial acts, or (4) seeks a declaration under the Declaratory Judgments Act, § 6-6-220 et seq., Ala.Code 1975, construing a statute and applying it in a given situation.’
“Latham v. Department of Corr., 927 So.2d 815, 821 (Ala.2005). Other actions that are not prohibited by § 14 include:
“ ‘(5) valid inverse condemnation actions brought against State officials in their representative capacity; and (6) actions for injunction or damages brought against State officials in their representative capacity and individually where it was alleged that they had acted fraudulently, in bad faith, beyond their authority or in a mistaken interpretation of law.’
“Drummond Co., 937 So.2d at 58 (emphasis omitted)....
“This Court has repeatedly held that § 14, Ala. Const.1901, ‘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); see also Ex parte Mobile County Dep’t of Human Res., 815 So.2d 527, 530 (Ala.2001) (‘Pursuant- to § 14, Ala. Const, of 1901, the State of Alabama and its agencies have absolute immunity from suit in any court.’); Ex parte Tuscaloosa County, 796 So.2d 1100, 1103 (Ala.2000) (‘Under Ala. Const, of 1901, § 14, the State of Alabama has absolute immunity from lawsuits. This absolute immunity extends to arms or agencies of the state_’). This absolute immunity from suit also bars suits for relief by way of mandamus or injunction. Ex parte Troy Univ., 961 So.2d 105, 108 (Ala.2006).
“Because the immunity of the State is absolute, this Court has usually provided that any exceptions to that immunity extend only to suits naming the proper State official in his or her representative capacity. See Latham, 927 So.2d at 821 (laying out the exceptions to sovereign immunity). Even when an action names the proper State official in his or her representative capacity, such an action will be barred if it is', in substance, an action against the State for damages. See Ex parte Town of Lowndesboro, 950 So.2d 1203, 1206 (Ala.2006) (‘Additionally, a party may not indirectly sue the State by suing its officers or agents “‘when a result favorable to plaintiff would be directly to affect the financial status of the state treasury.’ ” ’ (quoting Patterson v. Gladwin Corp., 835 So.2d 137, 142 (Ala.2002), quoting in turn State Docks Comm’n v. Barnes, 225 Ala. 403, 405, 143 So. 581, 582 (1932)) (emphasis added in Patterson)).”

Ex parte Alabama Dep’t of Transp., 978 So.2d at 21-22 (footnote omitted).

ALDOT is a State agency, see Ex parte Alabama Department of Transportation, 764 So.2d 1263, 1268 (Ala.2000), and, therefore, is absolutely immune from suit, unless S & M Equipment’s breach-of-contract claim falls within one of the exceptions to State immunity.

In pleading its breach-of-contract claim, S & M Equipment avers that although it performed the work in accordance with its contract with ALDOT, ALDOT breached the express and implied terms of that contract. S & M asks this Court to direct the trial court to order ALDOT to perform what S & M says are its legal duties and pay for the services rendered by S & M Equipment. S & M Equipment’s breach-of-contract claim does not fall within any of the exceptions to State immunity, see Ex parte Alabama Department of Transportation, 978 So.2d at 21-22; therefore, S & M Equipment’s breach-of-contract claim against ALDOT is barred by the doctrine of State immunity. S & M Equipment argues that ALDOT is not entitled to State immunity because this Court allowed a plaintiff to litigate a breach-of-contract claim against ALDOT’s predecessor — the State Highway Department — in Milton Construction Co. v. State Highway Department, 568 So.2d 784 (Ala.1990), and State Highway Department v. Milton Construction Co., 586 So.2d 872 (Ala.1991) (“the Milton Construction cases”). In Ex parte Alabama Department of Transportation, 978 So.2d at 22, this Court clarified the reason for the trial court’s subject-matter jurisdiction in the Milton Construction cases. The trial court had subject-matter jurisdiction in the Milton Construction cases, not because the State Highway Department was a defendant, but because the director of the State Highway Department, in his official capacity, was a defendant, and the action sought to require the director to perform his legal duties and to pay for the services rendered pursuant to the contract. See Latham v. Department of Corr., 927 So.2d 815, 821 (Ala.2005) (recognizing that a State official is not immune from suit when a party seeks to compel the State official to perform his or her legal duties). In this case, S & M Equipment named ALDOT as a defendant; it did not name the director of ALDOT as a defendant. Therefore, the reasoning in the Milton Construction cases is not applicable here. See also Ex parte Alabama Dep’t of Transp., 978 So.2d at 24.

Conclusion

ALDOT has established a clear legal right for the dismissal of S & M Equipment’s breach-of-contract claim against it. ALDOT is a State agency, and its immunity from suit is absolute. S & M Equipment did not establish that-its breach-of-contract claim fell within any of the exceptions to State immunity; therefore, the trial court erred in denying ALDOT’s motion to dismiss S & M Equipment’s breach-of-contract claim. We grant the petition for a writ of mandamus and order the Colbert Circuit Court to dismiss S & M Equipment’s breach-of-contract claim against ALDOT.

PETITION GRANTED; WRIT ISSUED.

COBB, C.J., and LYONS, STUART, and MURDOCK, JJ., concur.


author: CRAWLEY, Presiding Judge. MURDOCK, Judge,

text:
    Francina MORALES v. Luneal BARNETT, as administrator of the estate of Robert Shorter, deceased.
    2050326.
    Court of Civil Appeals of Alabama.
    Oct. 13, 2006.

      Bruce J. McKee and James R. Moncus III of Hare, Wynn, Newell & Newton, L.L.P., Birmingham, for appellant.
    Allen R. Trippeer, Jr., and Michael C. Skotnicki of Haskell Slaughter Young & Rediker, LLC, Birmingham, for appellee.
   CRAWLEY, Presiding Judge.

In June 2003, Francina Morales was injured when she was struck by an automobile driven by Robert Shorter. In February 2004, Morales sued Shorter, seeking a total of $175,000 in damages; she also sued Safeway Insurance Companies of Alabama, Inc., Shorter’s insurance company, alleging bad-faith refusal to pay her claim. Safeway was later dismissed as a defendant, and Shorter died during the course of the litigation, resulting in the substitution of Luneal Barnett, as administrator of the estate of Robert Shorter, as a defendant. After a jury trial, at which the jury assessed Morales’s damages at $35,000, the trial court entered a judgment in favor of Morales for the entire $35,000 after denying Barnett’s motion for a setoff of a $20,000 settlement Morales had received from her insurer, GEICO, pursuant to the underinsured-motorist provisions of her policy. Barnett requested that the trial court reconsider his request for a setoff, and the trial court subsequently amended the judgment by reducing the amount of the judgment by the $20,000 settlement. Morales appeals.

As a basis for reducing the amount of the judgment, the trial court relied on Batchelor v. Brye, 421 So.2d 1267 (Ala.Civ.App.1982), in which this court permitted an insured tortfeasor to partially satisfy a judgment against both him and an uninsured tortfeasor with the uninsured-motorist benefits received by the plaintiff from his insurer. Morales admits that Batche-lor appears to be authority for the trial court’s amended judgment. However, she argues that we should either distinguish Batchelor or overrule it.

We will begin our consideration of whether uninsured/underinsured-motorist benefits paid to a plaintiff should be set off against a judgment the plaintiff secures against a tortfeasor with a discussion of the holding in Batchelor. Archie Batche-lor, as administrator of the estate of his deceased son, sued Charles Dienhelt and Hattie Mae Brye, alleging that their negligence resulted in the death of Batchelor’s son. Batchelor, 421 So.2d at 1268. Dien-helt was insured; Brye was not. Id. Batchelor also sued his insurer, State Farm Mutual Auto Insurance Company, seeking uninsured-motorist benefits. Id. State Farm and Batchelor entered into a settlement whereby State Farm paid Batchelor $10,000 pursuant to the uninsured-motorist provision of his policy. Id.

After a jury trial to determine Dien-helt’s and Brye’s liability, at which the jury determined Batchelor’s damages to be $30,000, the trial court entered a judgment on the verdict. Id. Dienhelt paid $20,000 into court and “moved to have [the entire judgment] satisfied.” Id. The trial court granted this motion, and Batchelor appealed. Id.

In affirming the trial court’s order permitting the judgment to be satisfied by Dienhelt’s $20,000 payment, the Batchelor court relied on principles of law regarding the goal of uninsured-motorist coverage, which the court stated was “to make the plaintiff whole but not to allow double recovery.” Id. at 1269. The court based its conclusion that a “plaintiff is never entitled to recover from any source more than the actual measure of damages,” id., on its consideration of the holdings of Safeco Insurance Co. v. Jones, 286 Ala. 606, 243 So.2d 736 (1970), and Alabama Farm Bureau Mutual Casualty Insurance Co. v. Clem, 49 Ala.App. 457, 273 So.2d 218 (1973).

In Jones, the supreme court considered whether the plaintiffs uninsured-motorist carrier could deny coverage to the plaintiff under an exclusion in its policy whereby the insurer'attempted to limit its liability in those instances when other insurance was available to the insured. Jones, 286 Ala. at 609, 243 So.2d at 738. The plaintiff in Jones had secured a $25,000 judgment against an uninsured motorist and had recovered $10,000 under the uninsured-motorist provision of a policy held by the driver of the vehicle in which he had been a passenger. Jones, 286 Ala. at 610, 243 So.2d at 738. The plaintiff then sought $10,000, the limits of his uninsured-motorist coverage, from his insurer; the insurer denied his claim based on the exclusion. Id. After the plaintiff successfully sued the insurer, the insurer appealed, arguing that the other-insurance exclusion applied. Id.

The supreme court struck down the other-insurance exclusion, stating:

“We hold that our statute sets a minimum amount for recovery, but it does not place a limit on the total amount of recovery so long as that amount does not exceed the amount of actual loss; that where the loss exceeds the limits of one policy, the insured may proceed under other available policies; and that where the premiums have been paid for uninsured motorist coverage, we cannot permit an insurer to avoid its statutorily imposed liability by its insertion into the policy of a liability limiting clause which restricts the insured from receiving that coverage for which the premium has been paid.
“This holding does not permit a recovery in excess of that amount to which the injured party was ‘legally entitled to recover’ by virtue of the judgment against the uninsured motorist. By this latter statement, we do not consider that we are amending or adding to the statute. The statute limits recovery of damages to that amount to which the injured party is ‘legally entitled to recover’ and that amount is legally settled prior to the claims under the statute and the policies.”

Jones, 286 Ala. at 614, 243 So.2d at 742. The Jones court was not presented with the issue whether the plaintiffs receipt of $10,000 in uninsured-motorist benefits should be set off against the $25,000 judgment against the tortfeasor.

Similarly, Clem involved not the issue whether a tortfeasor could set off an uninsured-motorist insurance payment against a damages award but whether, by virtue of a provision in the plaintiffs policy requiring the insurer’s consent to settlement, the insurer could refuse to pay the plaintiff uninsured-motorist benefits after the plaintiff had settled for a total of $10,000 in insurance benefits from another insurance company for the death of his wife, who had been a passenger in a vehicle driven by the other insurance company’s insured when that vehicle was struck by an uninsured motorist. Clem, 49 Ala.App. at 460, 273 So.2d at 220. After securing the settlement from the insured motorist, the plaintiff then sought his insurer’s permission to sue the uninsured motorist, which his insurer granted; the plaintiff secured a $39,300 judgment against the uninsured motorist. Id. The plaintiffs insurer refused to pay the plaintiff the $10,000 in uninsured-motorist benefits provided under the plaintiffs policy because the plaintiff had not sought and received its consent to settle with the insured motorist as required by the provisions of the plaintiffs policy. Id.

The Clem court determined that the provision requiring that an insured seek approval of a settlement with an insured motorist as a prerequisite to the receipt of uninsured-motorist benefits under his own policy was a method of limiting an insurer’s liability under the policy and was not permissible under the uninsured-motorist statute. Clem, 49 Ala.App. at 461, 273 So.2d at 221. Relying in part on Jones, the court remarked that “[t]he Supreme Court in [Jones ] held in effect that the insured with uninsured motorist coverage was entitled to recover from whatever source available up to his amount of loss.” Id. Thus, the Clem court invalidated the portion of the provision requiring that an insured seek approval of a settlement with an insured tortfeasor as a prerequisite to recovery of uninsured-motorist benefits under his policy. Clem, 49 Ala.App. at 461-62, 273 So.2d at 222.

The Batchelor court used the principles espoused in Jones and Clem regarding the purpose of uninsured-motorist coverage, i.e., to make an insured plaintiff whole up to the amount of his loss, as one basis for its conclusion that the uninsured-motorist benefits already paid to the plaintiff in Batchelor should be set off against the amount of the damages award so that the plaintiff would not recover any more than the amount of his loss. Batchelor, 421 So.2d at 1269. However, Jones and Clem concerned the question whether an insurer could escape liability for uninsured-motorist coverage under a certain exclusion, which, based on the purpose of the uninsured-motorist statute, was answered in the negative. Neither Jones nor Clem involved the question whether an injured plaintiff or the tortfeasor should receive the benefit of the uninsured-motorist benefits to which the plaintiff was entitled.

In addition, a second legal principle is pivotal to the Batchelor holding. The Batchelor court also premised its holding on the fact that “[wjhile the plaintiff is entitled to full compensation for his injuries, he is entitled to only one satisfaction.” Batchelor, 421 So.2d at 1269 (citing Williams v. Colquett, 272 Ala. 577, 582, 133 So.2d 364, 368 (1961)). A reading of Williams reveals that this principle is mentioned at the outset of a discussion of the joint and several liability of joint tort-feasors in which it is explained that a plaintiff “injured by two or more joint tort-feasors may accept partial satisfaction and release one or more pro tanto and continue to proceed against one or more of the others” but that if the plaintiff “recovers judgment against one of the joint tort-feasors and obtains satisfaction, this operates as a discharge of the others.” Williams, 272 Ala. at 582, 133 So.2d at 368.

Batchelor involved two tortfeasors — one insured, the other uninsured. The plaintiff in Batchelor sued both tortfeasors and, during the litigation, entered into a pro tanto settlement with his own insurer for uninsured-motorist benefits. Thus, the rule stated in Williams had application in Batchelor, as the court itself recognized when it explained:

“Though the jury, without knowledge of the plaintiffs settlement with State Farm, ... found the plaintiffs damages to be $30,000, the plaintiff had already received one-third of that amount from his insurer due to the liability of Brye.
“Since the plaintiff received $10,000 due to the negligence of one tort-feasor, the $30,000 judgment was satisfied by payment of the remaining $20,000 by the other tort-feasor.”

Batchelor, 421 So.2d at 1269.

Our supreme court has continued to espouse the longstanding principle that a plaintiff is entitled to only one recovery for any single injury caused by two or more joint tortfeasors. See, e.g., Shepherd v. Maritime Overseas Corp., 614 So.2d 1048 (Ala.1993); Cooper v. Aplin, 523 So.2d 339 (Ala.1988); Ex parte Rudolph, 515 So.2d 704 (Ala.1987); and Williams v. Woodman, 424 So.2d 611 (Ala.1982). The court reaffirmed this principle in Ex parte Goldsen, 783 So.2d 53, 55 (Ala.2000), in which it addressed the issue whether the damages assessed against a negligent defendant could be offset by a pro tanto settlement with a defendant who the jury determined was not negligent. The supreme court answered that question in the affirmative, basing its decision on the rule that “ ‘a plaintiff ... is entitled to only one recovery for a single injury caused by two or more tortfeasors.’” Ex parte Goldsen, 783 So.2d at 56 (quoting Shepherd v. Maritime Overseas Corp., 614 So.2d at 1051). In considering the issue, the court specifically rejected the argument that the non-settling defendant would receive a windfall if the settlement were set off against the damages award. Ex parte Goldsen, 783 So.2d at 56. Instead, the court determined that the nonsettling defendant was “simply paying the portion of the damages owed to the plaintiff that remains after the settlement.” Id. Thus, the negligent defendant was allowed to reduce the damages award by the amount of the settlement between the plaintiff and the non-negligent defendant. Id. at 57.

We conclude, therefore, that Batchelor was premised, in large part, on the rule that a plaintiff is allowed only one recovery for a single injury caused by two or more tortfeasors. Indeed, although the purpose underlying uninsured-motorist benefits is to provide a recovery up to the amount of loss to plaintiffs injured by underinsured or uninsured motorists, it is important to note the interplay of that legal principle with the fact that Batchelor involved joint tortfeasors and thus implicated the legal principle that one joint tortfeasor may offset damages assessed for joint negligence by the amount of a pro tanto settlement entered into by another tortfeasor. Thus, we conclude that the holding in Batchelor has no application in the present case because Morales was injured by only one tortfeasor — Shorter. We now turn to whether, as urged by Morales, the collateral-source rule precludes the setoff that was permitted by the trial court.

As noted in Ensor v. Wilson, 519 So.2d 1244, 1266 (Ala.1987), our supreme court, in Gribble v. Cox, 349 So.2d 1141, 1142 (Ala.1977), adopted the collateral-source rule as it is stated in 22 Am.Jur.2d, Damages, § 206:

“ ‘ “... [A]s a general rule, the fact that the plaintiff received gratuitous medical care, continued salary or wage payments, proceeds from insurance policies, or welfare and pension benefits, will not be taken into account in computing damages.

(Emphasis in Ensor omitted.) When it extended the rule to include Medicare payments, likening them to insurance payments, the court restated the general rule thusly: ‘“The collateral source doctrine ... provides that damages recoverable for a wrong are not diminished because the injured party has been wholly or partially indemnified or compensated for his loss by insurance effected by him and to which the wrongdoer did not contribute Mitchell v. Moore, 406 So.2d 347, 351 (Ala.1981) (quoting Powell v. Brady, 30 Colo.App. 406, 414, 496 P.2d 328, 332-33 (1972)). We note that the collateral-source rule has been abrogated in limited instances by our legislature. See Ala.Code 1975, § 12-21-45-(making evidence that a plaintiffs medical or hospital expenses have been paid or will be reimbursed admissible in civil tort cases), Ala.Code 1975, § 6-5-522 (making evidence that a “plaintiffs medical or hospital expenses have been or will be paid or reimbursed (1) by medical or hospital insurance, or (2) pursuant to the medical and hospital payment provisions of law governing workmen’s compensation” admissible in products-liability cases), and Ala.Code 1975, § 6-5-545 (making evidence that a plaintiffs medical or hospital expenses have been paid or will be reimbursed admissible in medical-malpractice cases). However, those provisions are not applicable in the present case.

“The courts of this state have held many times that what has occurred between in-suror and insured is of no concern to the defendant — that the sum received from insurance cannot be shown in mitigation of damages for the injury.” Jones v. Crawford, 361 So.2d 518, 522 (Ala.1978) (footnote omitted). Our supreme court has also stated that it is “committed to the rule of exclusion of collateral source payments.” Gribble, 349 So.2d at 1143. On the basis of the collateral-source rule, the courts have excluded evidence of insurance payments, Carlisle v. Miller, 275 Ala. 440, 444, 155 So.2d 689, 691 (1963); Medicare payments, Mitchell, 406 So.2d at 351; and public benefits like special-education opportunities provided by the state, Ensor, 519 So.2d at 1267.

We see no reason to distinguish uninsured-motorist benefits from other insurance benefits and payments provided from other sources that have typically been excluded from damages computations under the collateral-source rule. Thus, we conclude that the collateral-source rule prohibits the reduction of Morales’s damages award by the amount of Morales’s uninsured-motorist benefits. The judgment of the trial court reducing Morales’s damages is reversed, and the cause is remanded for the trial court to reinstate its original judgment entered on the jury’s verdict.

REVERSED AND REMANDED WITH INSTRUCTIONS.

THOMPSON, PITTMAN, and BRYAN, JJ., concur.'

MURDOCK, J., concurs in part and dissents in part as to the rationale and concurs in the result.

MURDOCK, Judge,

concurring in part and dissenting in- part as to the rationale and concurring in the result. ■

I agree with the analysis and conclusions reached in the last three paragraphs of the main opinion. I cannot fully agree, however, with the remainder of the analysis in that opinion. In particular, I cannot agree with the stated grounds for distinguishing the present case from Batchelor v. Brye, 421 So.2d 1267 (Ala.Civ.App.1982), i.e., that the present case involves only one’ tortfea-sor, while Batchelor involved two tortfea-sors. I would overrule Batchelor.

As the main opinion correctly notes in its third from the last paragraph:

[A]s a general rule, the fact that the plaintiff received gratuitous medical care, continued salary or wage payments, proceeds from insurance policies, or welfare and pension benefits, will not be taken into account in computing damages

978 So.2d at 727 (quoting Ensor v. Wilson, 519 So.2d 1244, 1266 (Ala.1987), quoting in turn Gribble v. Cox, 849 So.2d 1141, 1142 (Ala.1977), quoting in turn 22 Am.Jur.2d, Damages § 206). Thus, as to the tortfea-sor or tortfeasors in any given case, a payment by the plaintiffs insurer is “gratuitous.” In other words, as the main opinion also correctly notes, “ ‘ “[t]he collateral source doctrine ... provides that damages recoverable for a wrong are not diminished because the injured party has been wholly or partially indemnified or compensated for his loss by insurance effected by [the injured party] and to which the wrongdoer did not contribute 978 So.2d at 727 (quoting Mitchell v. Moore, 406 So.2d 347, 351 (Ala.1981), quoting in turn Powell v. Brady, 30 Colo.App. 406, 414, 496 P.2d 328, 332-33 (1972)) (emphasis added).

That the wrongdoer ought not to benefit — or has no right to benefit — from a contractual obligation voluntarily undertaken by a third party, such as an insurer, for the benefit of an injured party logically is no less true when there are two or more wrongdoers than when there is only one wrongdoer. It may well have been true that the insurer in Batchelor would not have made a payment to the insured if not for the fact that one of the two tortfeasors was known to have been uninsured. But an insurer’s reason for making such a payment is, in the words of our Supreme Court in Jones v. Crawford, 361 So.2d 518, 522 (Ala.1978), “of no concern to the defendant.” Rather, it is a matter between the injured party and the insurer, whose obligations to one another flow from the private contract between the two of them.

Had the insurer in Batchelor made its payment on behalf of, or as the agent of, the uninsured joint tortfeasor, that would have been another matter altogether. Had that been the case, then the rule recognized in Shepherd v. Maritime Overseas Corp., 614 So.2d 1048 (Ala.1993), and Ex parte Goldsen, 783 So.2d 53 (Ala.2000), would indeed have been properly applied. The aim of that rule is to prevent the fact that there is more than one tortfeasor from resulting in the injured party receiving more than “one recovery” for “one injury.” See, e.g., Shepherd, 614 So.2d at 1051 (“a plaintiff ... is entitled to only one recovery for a single injury caused by two or more tortfeasors” (emphasis added)), and Ex parte Goldsen, 783 So.2d at 56 (quoting Shepherd).

But the insurance company in Batchelor did not make its payment to the plaintiff as an agent for or on behalf of the uninsured tortfeasor. Instead, it made that payment on its own behalf pursuant to a contractual obligation that it had voluntarily undertaken to the plaintiff. As the main opinion also notes, “ ‘[t]he courts of this state have held many times that what has occurred between insuror and insured is of no concern to the defendant — that the sum received from insurance cannot be shown in mitigation of damages for the injury.’” 978 So.2d at 727 (quoting Jones v. Crawford, 361 So.2d at 522). A payment made by the insurer to the insured is not a payment “effected by” the tortfeasor, nor is it a payment “contributed” to by the tortfeasor or a payment made with the intention under our law of benefiting the tortfeasor.

If, as a result of the rule advocated above, a party who has been tortiously injured (whether by the actions of one tortfeasor as in the present case or by the actions of two or more tortfeasors as in Batchelor) finds himself or herself receiving a recovery from one or more tortfea-sors that, when combined with a recovery from his or her insurer, is more than sufficient to compensate the injured party for his or her injuries, this will not have occurred because a tortfeasor who is fully liable under our law for the whole of the injured party’s injuries (either because he is the sole tortfeasor or is one of two or more jointly and severally hable tortfea-sors) has been made to pay an amount greater than that for which the law holds it responsible. It will be because a third party — a nonparty to the tort — has chosen to enter into a private contract with the injured party for the benefit of the injured party upon the happening of a given event (i.e., the tortious injury) without securing, or as in Batchelor without insisting upon enforcement of, contractual provisions entitling the third party to adequate subro-gation rights in the event of such a recovery.