author: ADAMS, Justice. TORBERT, Chief Justice JONES, Justice MADDOX, Justice

text:
    CONTINENTAL ASSURANCE COMPANY, a Corporation v. Freddie E. KOUNTZ.
    82-793.
    Supreme Court of Alabama.
    Dec. 21, 1984.

      Alton R. Brown, Jr. and Cynthia A. Car-gile of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, for appellant.
    Leon G. Duke and Mary Beth Mantiply of Sintz, Pike, Campbell & Duke, Mobile, for appellee.
   ADAMS, Justice.

This appeal arises from a suit filed by Mrs. Freddie Kountz against Continental Assurance Company in which Kountz sought damages for Continental’s failure to pay an insurance claim. Continental appeals from the entry of judgment on a jury verdict of $23,000.00 in favor of the plaintiff.

The case arose from the following facts:

Plaintiff Freddie Kountz was insured by defendant Continental as a beneficiary on her husband Dominick Kountz’s group health and accident policy, which he obtained through his employer, Grady Buick, Inc., of Mobile. The written insurance policy delineates limitations on major medical expense benefits, noting that the policy does not cover expenses incurred “[i]n connection with dental care and treatment except that necessitated by accidental bodily injury, occurring while insured, to sound natural teeth.”

Mrs. Kountz received a blow to the mouth during a robbery attempt against her in January of 1980. As a result of this injury, one of Kountz’s front teeth was knocked out, several of her front teeth were loosened, her mouth bled, and her face swelled. Kountz reported this attack to the police and although her dentist, Dr. Brown, was not seeing patients that day, she talked with him by telephone and thereby obtained medicine for her pain.

According to Kountz, she had been able to chew and eat normally prior to her injury and had no real problems with her teeth before this time. Subsequent to the attack, however, Kountz was forced to eat soft foods and use only her back teeth for chewing, because her teeth were loose.

After examinations by Dr. Brown and later by Dr. Woodall, Kountz was eventually examined by Dr. Charles Black, an oral surgeon, on March 28, 1980. Dr. Black found that Kountz suffered from chronic periodontal disease, a condition causing deterioration of the gums. Dr. Black found the disease to be fairly uniform throughout the mouth, but that the back teeth and molars were nevertheless fairly sound while the front teeth were very mobile and non-salvageable. Dr. Black recommended an extraction of Kountz’s eight front teeth and was of the opinion that the surgery was necessitated at that particular time because of the blow to Kountz’s mouth.

Before undergoing the surgery, Kountz wanted to know whether her insurance coverage through Grady Buick’s Continental policy would pay for this operation. Since Kountz is blind, she had her mother telephone Continental, but Kountz herself talked to the representative. The number called was that of a Mobile insurance agency listed in a Yellow Pages advertisement as being a representative of Continental.

Kountz talked first with a female insurance representative and several days later with a male agent at the same number. Kountz could not name the persons with whom she talked. During each conversation however, Kountz communicated that she was inquiring about coverage under Grady Buick’s policy with Continental. She explained the circumstance of her injury and was assured by each of the unidentified representatives that Continental would pay for the oral surgery necessitated by such an attack.

On April 10, 1980, relying on the representations made by the agents, Kountz underwent the extractions recommended by Dr. Black. After receiving her bill from the hospital, Kountz submitted an insurance claim to Continental for $2,600.00. Continental denied payment of the claim.

Freddie Kountz and Dominick Kountz filed suit against Continental on June 15, 1981, alleging breach of contract, false representation, bad faith, and outrage on behalf of Freddie Kountz and breach of contract, outrage, and bad faith on behalf of Dominick Kountz. The case was tried before a jury on February 22, 1983. At the close of the plaintiff’s case, Continental moved for a directed verdict on all counts. This motion was granted as to the three counts alleged by plaintiff Dominick Kountz and denied as to the other counts.

The defendant failed to put on any evidence and renewed its motion for a directed verdict. This motion was denied on all counts except for the claim of outrage. This count was voluntarily withdrawn by plaintiff Freddie Kountz and the defendant’s motion for a directed verdict was then granted on that count. Plaintiff Freddie Kountz made no motion for a directed verdict.

After being charged on breach of contract, false representation, and bad faith, the jury returned a verdict for plaintiff Freddie Kountz and against Continental in the amount of $23,000.00. The trial court denied Continental’s motion for a judgment notwithstanding the verdict, or alternatively for a remittitur or new trial. Continental appeals.

Continental asserts four reasons why we should reverse this case and render judgment in its behalf: 1) The trial court erred in submitting the bad faith claim to the jury; 2) the trial court erred in submitting the false representation claim to the jury; 3) the evidence does not support an award of punitive damages; and 4) the trial court erred in excluding the use of relevant evidence at trial. We find no merit in these assertions of error and therefore affirm the judgment entered on the jury verdict rendered below.

I.

Continental claims that its motion for a directed verdict on the bad faith count was erroneously denied and that therefore the claim was incorrectly sent to the jury. Defendant argues first that Kountz was not entitled to a directed verdict on the breach of contract claim, thereby negating the bad faith action, and second, that the evidence failed to support the bad faith claim anyway.

The tort of bad faith refusal to pay an insurance claim was recognized by this court in Chavers v. National Security Fire & Casualty Co., 405 So.2d 1 (Ala.1981). We discussed the standard of proof in a bad faith action in this way:

[A]n actionable tort arises for an insurer's intentional refusal to settle a direct claim where there is either “(1) no lawful basis for the refusal coupled with actual knowledge of that fact or (2) intentional failure to determine whether or not there was any lawful basis for such refusal.”

Chavers, 405 So.2d 7. Therefore, a claim may be proven in one of two ways. The plaintiff can show that the insurer knew there was no lawful basis to refuse payment of the claim, or, alternatively, that the insurer intentionally failed to discover whether the refusal to pay had a lawful basis.

In Gulf Atlantic Life Insurance Co. v. Barnes, 405 So.2d 916 (Ala.1981), this alternative method of proof was further examined:

The second tier of the test is an elaboration on the first. The trier of fact, by finding, on the part of the insurer, an “intentional failure to determine whether or not there was any lawful basis for refusal,” may use that fact as an element of proof that no lawful basis for refusal ever existed. The relevant question before the trier of fact would be whether the results of the investigation were subjected to a cognitive evaluation and review. Implicit in that test is the conclusion that the knowledge or reckless disregard of the lack of a legitimate or reasonable basis may be inferred and imputed to an insurance company when there is a reckless indifference to facts or to proof submitted by the insured.

Barnes, 405 So.2d at 924. Barnes indicates that the plaintiff in a bad faith suit must prove that no lawful basis for refusing payment existed, but that proof of an intentional failure to determine whether a lawful basis existed will militate toward the finding that no such basis in fact existed.

Subsequent to Barnes, we decided National Security Fire & Casualty Company v. Bowen, 417 So.2d 179 (Ala.1982), which reiterated the standard of proof required in a bad faith action. That case held that the plaintiff must prove the following:

(a) an insurance contract between the parties and a breach thereof by the defendant;
(b) an intentional refusal to pay the insured’s claim;
(c) the absence of any reasonably legitimate or arguable reason for that refusal (the absence of a debatable reason);
(d) the insurer’s actual knowledge of the absence of any legitimate or arguable reason;
(e) if the intentional failure to determine the existence of a lawful basis is relied upon, the plaintiff must prove the insurer’s intentional failure to determine whether there is a legitimate or arguable reason to refuse to pay the claim.

Bowen, 417 So.2d at 183. The three latter elements provide a concise reflection of previously discussed case law. Parts a and b simply require a showing that there was in fact an insurance contract and that the contract was breached by the insurer’s intentional refusal to pay the claim.

The importance of proving the existence of the contract and a breach thereof was reinforced in National Savings Life Insurance Co. v. Dutton, 419 So.2d 1357 (Ala.1982). The contract claim’s direct relationship to the bad faith claim was described as follows:

In the normal case in order for a plaintiff to make out a prima facie case of bad faith refusal to pay an insurance claim, the proof offered must show that the plaintiff is entitled to a directed verdict on the contract claim and, thus, entitled to recover on the contract claim as a matter of law. Ordinarily, if the evidence produced by either side creates a fact issue with regard to the validity of the claim and, thus, the legitimacy of the denial thereof, the tort claim must fail and should not be submitted to the jury.

Dutton, 419 So.2d at 1362. Thus, “in the normal case,” before the bad faith claim can be submitted to the jury, the existence of a contract and the breach of that contract must be proven to the extent that the plaintiff would be entitled to a directed verdict on the breach of contract claim. Dutton’s use of the language “in the normal case” and “ordinarily” in the above excerpt, however, indicates that cases will arise in which the plaintiff will not have to meet the directed verdict test in order to recover on the bad faith claim.

In the case now in issue, Continental claims that Kountz was not entitled to a directed verdict on her breach of contract claim, and, thus, that the bad faith claim should not have gone to the jury. This argument fails for two reasons. First, the evidence shows that Kountz was in fact entitled to a directed verdict on the contract claim, thus meeting the Dutton test. Second, even if Continental could defeat Kountz’s directed verdict on the contract claim, this case is not the “normal” or “ordinary” case described in Dutton; in an extraordinary case like this the directed verdict standard is inapplicable. Aetna Life & Cas. Insurance Company v. Lavoie, [MS. 82-426, December 7, 1984] (Ala.1984).

A directed verdict is proper on a claim where the facts are such that all reasonable men must draw the same conclusion from them. Turner v. Peoples Bank, 378 So.2d 706 (Ala.1979). A plaintiff is entitled to a directed verdict where there are no controverted issues of fact upon which reasonable men could differ. Loeb & Co. v. Martin, 295 Ala. 262, 327 So.2d 711 (1976).

The parties in this case stipulated that there was in fact a contract. The disputed issue was whether there was a breach of that contract by Continental’s failure to pay, that is, whether Kountz’s injury was covered by the insurance policy. This question turned on whether Kountz’s injury occurred to “sound” teeth as required by the policy.

The evidence presented on this matter at trial consisted of Kountz’s own testimony and that of her oral surgeon, Dr. Black. Although Dr. Black testified that Kountz suffered from chronic periodontal disease uniformly affecting the entire mouth, the following exchange took place at trial:

Q. Did you find all of her teeth to be loose or were some of them intact?
A. The majority of posterior — the back teeth and molars were fairly sound and the anterior teeth were very mobile and non-salvageable. [Emphasis added.]

The anterior or front teeth were the teeth affected by the blow Kountz received to the mouth.

Additionally, Dr. Black testified that Mrs. Kountz’s injury, and not the disease, “was the reason for the removal of the teeth at this particular time.” Similarly, Mrs. Kountz testified as follows:

Q. After you had gotten hit in the mouth, did you have any trouble eating?
A. Yes.
Q. What kind.
A. Well, my teeth were loose. I had to chew in the back — I had to put my food — I had to eat soft stuff, but if I had anything I had to really chew I had to chew in the back of my mouth.
Q. Were you able to chew before you were hit in the mouth?
A. Yes.
Q. Did you have any problems with your teeth before you were hit in the mouth?
A. No. Not really, you know.
Q. Were you able to eat normally?
A. Yes.

Plaintiff Kountz’s evidence indicates that although her mouth was infected with some degree of periodontal disease, she had no chewing problems with her teeth prior to the assault, yet had great problems in this matter after the injury. Kountz’s back teeth were “fairly sound” after the assault, while the front teeth, which were subject to the blow to the mouth, were “unsalvageable.” Additionally, the reason Kountz’s teeth needed to be removed when they were in fact removed was the damage inflicted by the blow to the mouth.

This was the evidence adduced at trial on this issue. Continental put on no evidence to controvert this testimony. After reviewing the record, it appears that reasonable men would not differ on the conclusion drawn from the evidence and that Kountz would have been entitled to a directed verdict on the breach of contract claim. Although Kountz did not actually move for a directed verdict, this is not a requirement. It is noted, moreover, that the lower court’s order of May 4, 1983, stated the following findings of fact:

1. The evidence adduced at trial was sufficient to support a directed verdict in favor of the plaintiff on the plaintiff’s contract claim for her eight front teeth.
2. The evidence affirmatively showed that the plaintiff was entitled to a directed verdict in her favor on her contract claim for her eight front teeth.
3. Had the plaintiff’s attorney moved for directed verdict in the plaintiff’s favor, it would have been granted as to the eight front teeth.

Therefore, after reviewing the record, we are in agreement with the trial judge, who actually observed the testimony, that Kountz’s evidence proved a breach of the insurance contract with sufficiency to warrant a directed verdict.

Furthermore, as stated above, even if Kountz was not entitled to a directed verdict on her contract claim, this is one of those cases in which the directed verdict test is not applicable. In the recently decided case of Aetna Life & Cas. Insurance Company v. Lavoie, [MS. 82-426, December 7, 1984] (Ala.1984), we affirmed a verdict for the plaintiff for Aetna’s bad faith denial of a hospitalization claim. Aetna’s blatant and intentional failure to determine the existence of a valid reason for denial rendered that case an extraordinary one, wherein the defendant’s ability to put on a scintilla of evidence to defeat a directed verdict on the contract and thus avoid bad faith liability was deemed manifestly unjust. Thus, in Lavoie, it was proper for the bad faith count to go to the jury even though Aetna’s evidence at trial would have defeated the plaintiff’s directed verdict on the contract claim. Under Lavoie then, Kountz’s bad faith claim properly went to the jury, even if Kountz was not entitled to a directed verdict on the contract.

Continental argues that notwithstanding the issue of the directed verdict on the contract claim, Kountz had to provide a prima facie showing of the tort of bad faith in order for the case to go to the jury. Continental argues that Kountz failed to prove a prima facie case and that this claim should not have been submitted to the jury. Continental asserts that the trial court should have instead granted its motion for a directed verdict on the bad faith claim. This argument fails.

A directed verdict is proper only where there is a complete absence of proof on an issue material to the claim or where there are no disputed questions of fact on which reasonable people could differ. Ritch v. Waldrop, 428 So.2d 1 (Ala.1982). See also Turner v. Peoples Bank and Loeb & Co. v. Martin, supra.

Having discussed the standard of proof required in a bad faith case, we find that Kountz presented sufficient evidence to warrant a jury decision on Continental’s liability. Kountz needed to show that Continental had no legitimate or arguable reason to deny payment and that Continental knew that it had no such reason. National Security Fire & Casualty Co. v. Bowen, supra. One method of proving that Continental had no legitimate reason to deny payment would be a showing that the defendant intentionally failed to determine whether or not there was any lawful basis for denying payment. Gulf Atlantic Life Insurance Co. v. Barnes, supra.

A review of the record indicates that there was sufficient evidence of Continental’s intentional failure to determine whether there was a lawful basis for denying Kountz’s claim to support the inference of bad faith failure to pay.

Continental denied Kountz’s claim three times. The record is unclear as to what information Continental had in its possession each time it made a denial, that is, the information upon which the defendant based each rejection. The following evidence was adduced at trial however: 1) The original claim form submitted by Kountz stated that she had been mugged during an attempted robbery; 2) Continental denied the claim and requested a police report on the assault; 3) Kountz submitted a second claim with a copy of the police report, which describes the assault; 4) Continental informed Grady Buick that the claim was being denied because there was no evidence of an accidental injury, even though Continental had the police report in its possession; 5) Continental denied the claim because a hospital record listed Kountz’s chief complaint as “dental caries, and gum disorder”; 6) Continental requested from Kountz an explanation by Dr. Black regarding the cause of the teeth extraction; 7) Dr. Black had an employee fill out the required form stating that Kountz had to undergo oral surgery due to a mugging and authorized the employee to sign the statement for Dr. Black; 8) Dr. Black’s statement invited Continental to contact him if more information was needed; 9) Continental suspected that someone had forged Dr. Black’s signature but did not contact the doctor to verify this suspicion, or to inquire as to further information regarding the cause of Kountz’s dental problems; 10) Continental knew that Dr. Stewart had treated Kountz but did not contact him regarding the cause of Kountz’s dental problems; 11) Continental stated that the policy holder, Grady Buick, Inc., preferred Continental to obtain information through Grady Buick, and not through the insured directly; however, Grady Buick Inc., had, in fact, written Continental stating that the insurance company should contact Dr. Black directly if further information was needed.

The evidence indicates that, notwithstanding the references to Kountz’s mugging in their file, Continental denied the claim because the hospital record listed “dental caries, and gum disorder” as the plaintiff’s ailment. The examination of Continental’s Atlanta Claims Branch manager James Ritchie went in part as follows:

Q. And this claim has never been reviewed by anyone in your company with any kind of dental expertise; is that correct?
A. Based on what we have, there would be no reason.
Q. Okay. But for all you know when you get these letters saying something about gum problems or infections, that could be caused from being bashed in the mouth, couldn’t it, for all you know, all your dental expertise?
A. As you word it, for all I know it could happen for any reason.

Mr. Ritchie also testified about Continental’s methods of obtaining information upon which to deny or allow a claim. The questioning sought an explanation of Continental’s failure to request information directly from Dr. Black before denying the claim:

Q. Oh, I see. You will request things that you think will help get you out of it directly, but if it’s something that might substantiate it, you go through the group employer; right?
A. To a degree that’s what we are told by the employers.

Based on our review of the evidence in the record, we find that there was a prima facie showing of bad faith failure to pay a valid claim sufficient to deny Continental’s motion for a directed verdict and to send this case to the jury.

II.

We now address Continental’s arguments that 1) the trial court erred in submitting the misrepresentation claim to the jury, 2) the evidence in this case does not support an award of punitive damages, and 3) the trial court erred in excluding certain evidence at trial.

Continental states that the trial court committed reversible error when it denied Continental’s motion for a directed verdict on Kountz’s misrepresentation cause of action. Having above discussed the applicable standard for denying a motion for a directed verdict, we find that there was sufficient evidence presented at trial to warrant allowing the misrepresentation cause of action to go to the jury.

Kountz was required to put on evidence showing that 1) Continental’s agents made a false representation; 2) the representation concerned a material fact; 3) Kountz relied on the representation; and 4) Kountz sustained injury by relying on the representation. Fountain-Lowery Enterprises v. Williams, 424 So.2d 581 (Ala.1982).

Evidence was adduced at trial from which the jury could conclude that Kountz twice discussed her insurance coverage with agents of Continental, the agents misrepresented that Continental would pay for Kountz’s dental work, Kountz relied on the representations made to her by undergoing the oral surgery, and she suffered damage in that she remained liable for the medical bills incurred. The existence of this evidence precluded a directed verdict on this issue in favor of the defendant, and the trial court properly denied Continental’s motion.

Continental asserts further that the evidence in this case does not support an award of punitive damages. In Gulf Atlantic Life Insurance Co. v. Barnes, 405 So.2d 916 (Ala.1981), the recovery of punitive damages in a bad faith case was explained as follows:

Alabama allows recovery of punitive damages when the plaintiff shows that he suffered, at least, nominal damage and that the acts complained of were committed with malice, willfulness, or wanton and reckless disregard of the rights of others_ Thus, for punitive damages to be awarded in Alabama, a defendant must not only intentionally have breached his duty of good faith, but in addition must have committed acts of the nature described above.

405 So.2d at 925. We find that there was evidence presented in this case from which the jury could have concluded that Continental acted with malice, willfulness, or wanton and reckless disregard of Kountz’s rights. Therefore, the jury verdict is not improper because it included punitive damages.

Continental’s final ground in support of reversal of this case is the assertion that the trial court erred in excluding the use of certain deposition testimony at trial. Kountz submitted prior to trial a written motion in limine requesting that Continental be precluded from making reference to any of the physicians who treated the plaintiff. This motion is marked “denied” as it appears in the record. Continental claims that it was prejudiced by being prohibited from introducing the depositions of two doctors at trial, but nothing in the record indicates that such a prohibition existed. Additionally, nowhere does it appear that Continental even attempted to introduce the depositions into evidence during the trial. Because there is no ruling of the trial court adverse to Continental appearing in the record with regard to its objections, there is nothing presented to this court for review by those assignments of error. McCulloch v. Roberts, 290 Ala. 303, 276 So.2d 425 (1973). Therefore, Continental’s final argument for reversal fails.

For all of the above reasons, the judgment on the jury verdict rendered below is affirmed.

AFFIRMED.

FAULKNER, ALMON and EMBRY, JJ., concur.

TORBERT, C.J., and SHORES, J., concur in the result, with opinion by TORBERT, C.J.

JONES, J., concurs specially, with opinion.

BEATTY, J., concurs in the result, without opinion.

MADDOX, J., dissents.

TORBERT, Chief Justice

(concurring in the result).

I concur in the result. I would add that while I disagree with Justice Maddox’s conclusion in his dissent that the case of National Security Fire and Casualty Co. v. Vintson, 454 So.2d 942 (Ala.1984), precludes a finding of bad faith in this case, I agree with that part of his dissent which discusses my view expressed in Lavoie that attractive alternatives to the tort of bad faith should be pursued.

SHORES, J., concurs.

JONES, Justice

(concurring specially):

I agree with the opinion, but I see no need to invoke the exception to the directed verdict test recognized in Lavoie. Clearly, these facts entitled Ms. Kountz to a directed verdict on the contract claim. She had dental work performed on her front teeth immediately following severe injury inflicted to those teeth in a brutal physical assault to her face. The last of three denials of payment by the insurer was based on the unsubstantiated suspicion that the claim form contained a forged signature of the treating dentist. It is by far the clearest case of willful failure to pay an insurance claim without any legal basis that has yet come before our Court. For this reason I. would not reach the exception to the directed verdict test.

I think it is appropriate, here, to caution the reader that neither Lavoie nor the instant case should be read as weakening the application of the directed verdict test in a bad faith claim context. It is a valid and useful threshold gauge, testing whether the bad faith claimant has met the first prong of his prima facie burden — that is, whether he was entitled, as a matter of law, to recover on the contract claim. If not, there “endeth” the tort claim of bad faith. If so, the claimant must meet the second prima facie prong: that the insurer acted in bad faith in failing to process or to pay the claim.

The exception to the directed verdict test, contemplated in Dutton and recognized in Lavoie, is a very narrow one. It is not overly simplistic to state the Lavoie exception thusly: The law will not permit the insurer to create a fact issue by testimony from its own employees, the veracity of which is subject to rejection by the trier of facts, and thus defeat a claimant’s motion for a directed verdict on the contract claim and thereby preclude a bad faith claim. If the factfinder rejects the factual basis for denial, and that basis is supplied solely by the testimony of the insurer’s agents or employees, it would be ludicrous to allow such wrongful conduct to defeat, rather than enhance, a bad faith claim. To hold otherwise would be to reward one for his own wrongdoing. This exception strengthens, rather than weakens, the general rule.

One further comment: I think it is more confusing than helpful to discuss the requisite elements of punitive damages in a bad faith context in terms of either “malice” on the one hand or “wanton and reckless” on the other. The very definition of bad faith failure to pay a valid insurance claim embraces the concept of an intentional injury: the highest degree of culpability known to the law of torts. If the evidence does not support a finding of intentional refusal to pay without a legally or factually debatable reason, the tort claim fails. If the evidence does support a tort claim, it necessarily is a proper case for punitive damages. Language that implies a two-tier test is misleading and improper.

MADDOX, Justice

(dissenting).

This case is another in a series of “bad faith” cases which this Court has considered in the past few years, and points out once again that the insured was allowed to go to the jury on the bad faith claim, even though there were conflicts in the evidence on the breach of contract claim, the issue of liability was still being litigated, and the liability of the insurer to pay was not determined until the jury returned a verdict on the contract claim. Here, the majority compounds its error by holding that the insured was entitled to a directed verdict on the contract claim, even though no request was made that the trial court grant a directed verdict on the contract claim. Even more disturbing is the fact that the majority, in one part of the opinion, actually states that there was a dispute on the contract claim. The opinion, in part, reads:

“The parties in this case stipulated that there was in fact a contract. The disputed issue was whether there was a breach of that contract by Continental’s failure to pay, that is, whether Kountz’s injury was covered by the insurance policy. This question turned on whether Kountz’s injury occurred to ‘sound’ teeth as required by the policy.” (Emphasis added.)

Nevertheless, the majority not only finds that a dispute existed on the contract claim, but then disregards that finding and exempts plaintiff from making a motion for a directed verdict, and further finds that this is not a “normal case,” thereby allowing plaintiff to recover under the principles announced in Aetna Life & Cas. Ins. Co. v. Lavoie, [Ms. 82-426, December 7, 1984] (Ala.1984). This use of the appellation “normal case,” although it is lifted from one of this Court’s cases, sets up a difficult test to apply. It is much like a court having to say that while “obscenity” cannot be defined, “I know it when I see it.” To apply such principles to contract law, where the rule of “expectancy of the parties” is the polestar, seems unnecessary and very difficult to apply because of its subjectivity. These “bad faith” cases, unfortunately, in my opinion, fail to give to the bench and bar some settled principles to guide them in determining when, and under what circumstances, the tort can be established. That is the reason I consistently dissented, until I joined every member of the Court in National Security Fire and Casualty Co. v. Vintson, 454 So.2d 942 (Ala.1984), in which this Court concluded that a plaintiff had a very heavy burden in establishing a bad faith failure to pay, and that that burden was to show that the insurer, to quote from Vintson, “had no legal or factual defense to the insurance claim.” The Vintson test at least provided a more objective standard which trial judges, lawyers, and appellate judges could apply. Here, the Court follows Lavoie, which is diametrically opposed to Vintson.

There is another reason why the “bad faith” claim should not have been sent to the jury in this case. Plaintiff, by failing to request a directed verdict on the contract claim, necessarily left to the jury the factual determination of whether there was a contractual duty on the insurer to pay the claim. Even assuming we could waive the request for a directed verdict, I must respectfully disagree with the majority that the plaintiff was entitled to a directed verdict on the contract claim, as I have already pointed out. In fact, the majority opinion concedes, in one portion of the opinion, that there was a “disputed issue ... whether Kountz’s injury was covered by the insurance policy.”

By dissenting in this case, and in others presented to this Court, I may appear to believe a plaintiff in a case such as the present one should be limited to his usual contract damages, but I have no such views, and have never entertained them. The Chief Justice, in his dissent in Lavoie, using a principle which I have long held to be the law, has suggested what I believe would be a sound rule of law to establish in these insurance contract cases. He suggested that this Court should adopt a rule that would restrict the cause of action, in situations such as exist here, to one sounding in contract, but expand the contractual damages rules for non-commercial insurance contracts. To me, that would be a just and fair rule which could be easily applied, and would be a rule this Court could unanimously adopt. Of course, the Legislature is the body normally relied upon to correct any ills which might exist in the insurance industry regarding payment of insurance claims, but in the absence of legislation, I would favor a rule of law which would allow the recovery of consequential damages, including reasonable attorneys’ fees, when a party is forced to go to court to establish his claim under an insurance policy.

The failure of insurers to promptly pay what policyholders consider just claims is of great public concern. That concern is evidenced by the proliferation of cases in which policyholders seek not only redress under the contract, but also punitive damages under a “bad faith” theory, and juries are responding with verdicts of such magnitude that this Court has seen fit to require remittiturs.

As I have already stated, in our scheme of government, policy questions like this, especially since they involve the heavily regulated insurance industry, should properly be addressed by the Legislature, but the Legislature has not acted.

Another concern of mine is the fact that because of this Court’s adoption of the “bad faith” tort, there very well may be instances when insurance companies pay claims which factually should be denied; nevertheless, the company opts to pay rather than face the possibility of a lawsuit. If those instances do occur, then premiums for all other policyholders necessarily rise to offset these added costs. On the other hand, there no doubt are instances when companies require policyholders to resort to a court suit, even though the factual basis for denial of a claim is questionable. The fairest rule, it would appear to me, in view of these two policy considerations, would be one which would allow any party to a non-commercial insurance contract, who is forced to go to court in order to recover his contract claim to recover his consequential damages as well, including reasonable attorneys’ fees.

In summary, I believe the judicially created tort of “bad faith” has serious policy ramifications which could and should be addressed by the legislative body of our government, I, nevertheless, feel that, in some cases, damages in addition to those provided for by the contract are necessary to make the policyholder whole.

Consequently, I would apply the rule which I believe would be just in this case and would reverse the judgment awarding punitive damages, but would remand the cause to the circuit court for a determination of the consequential damages which the plaintiff suffered as a result of the breach.

      . The Legislature responded to a policy concern when municipal immunity was stricken, Code 1975, §§ 11-93-1 through 11-93-3, and also when public policy indicated the necessity for a law to address the proliferation of medical malpractice claims, Code 1975, § 27-26-2.

      . In these cases, there has been no uniformity in the amount of damages awarded, but this Court has not been uniform either in requiring remittiturs. Cf. Gulf Atlantic Life Ins. Co. v. Barnes, 405 So.2d 916 (Ala.1981), and Lavoie, supra.

      . For at least one state, commentators have proposed a statute. K. Harvey and T. Wiseman, First Party Bad Faith: Common Law Remedies and a Proposed Legislative Solution, 72 Ky.LJ. 141 (1983-84):
      “AN ACT relating to first party insurance claims. Be it enacted by the General Assembly of the Commonwealth of Kentucky:
      SECTION 1. A NEW SECTION OF SUBTITLE — OF KRS CHAPTER 304 IS CREATED TO READ AS FOLLOWS:
      "(1) The desire to provide a fair and equitable means of resolving disputes that arise ■ between insurers and insureds requires that the statutory mechanism herein be adopted to effect the following purposes:
      “(a) To encourage insurers to conduct reasonable investigations of claims by its insureds;
      "(b) To promote prompt, fair and equitable settlements of claims in which liability has become reasonably clear;
      "(c) To deter insurers from unreasonably delaying or denying benefits due their insureds under contracts of insurance;
      “(d) To provide the insured the benefit of his bargain when he is compelled to bring a cause of action against his insurer to enforce the terms of a valid insurance contract;
      "(e) To provide a reasonable remedy for common law causes of action by first party claimants; and
      "(f) To allow insurers to assert valid defenses and to defend fairly debatable claims without exposure to liability grossly disproportionate to the claims and amounts involved.
      “(2) Under no circumstances is it the intent nor shall this subtitle be construed to provide the basis for an independent duty, which the breach thereof would give rise to an independent tort.
      "(3) As used in this subtitle the following definitions shall apply:
      "(a) ‘First party claimant' means an individual, corporation, association, partnership or other legal entity asserting a right to payment under an insurance policy or insurance contract arising out of the occurrence of the contingency or loss covered by such policy or contract. A ‘first party claimant’ includes, but is not limited to, the intended beneficiary of an uninsured motorist insurance policy.
      "(b) An ‘insurance policy or contract’ means a policy or contract entered into by an insurer as defined in this Chapter or a substitute therefor entered into by a self-insured entity or employer.
      "(c) ‘Bad faith’ means there must be an absence of a reasonable basis of denial of the insurance policy or contract benefits. The insurer’s refusal to pay a fairly debatable claim does not constitute bad faith for purposes of this subtitle.
      "(4) If a first party claimant is adjudged to have been entitled to recovery according to the terms of the insurance contract under which a right of recovery is claimed in an amount in excess of that amount offered by the issuer of the insurance policy or contract, the court shall award the first party claimant a reasonable attorney fee.
      "(5) Should the issuer of the insurance policy or contract make a written offer of settlement to the first party claimant in an amount that is equal to or more than that which the first party claimant is ultimately adjudged to be entitled to recover, the first party claimant shall not recover attorneys fees incurred from the time the offer of settlement was communicated to the first party claimant. After litigation has commenced, the settlement offer shall be in the form contemplated and governed by the terms of Kentucky Rules of Civil Procedure.
      “(6) Upon being adjudged liable to the first party claimant, the issuer of the insurance policy or contract shall pay an additional penalty not to exceed twenty percent (20%) of the recovery to the extent it exceeds any amount offered in accordance with sub-section five (5) hereof if the court or jury finds that such defendant's refusal to pay the first party claimant according to the terms of the insurance policy or contract was in bad faith. But in no case shall such penalty be less than five hundred dollars ($500).
      "(7) The penalty imposed under this subtitle shall be the exclusive remedy for the refusal of the issuer of the insurance policy or contract to pay a first party claimant in the absence of good faith and such failure shall not give rise to an independent action in tort."


source: Caselaw Access Project

author: BRADLEY, Judge.

license: Public Domain

text:
    Erskine Van IVEY v. Jerry VERBECK, d/b/a Carlyle Piano Company.
    No. Civ. 4354.
    Court of Civil Appeals of Alabama.
    Oct. 24, 1984.
    Rehearing Denied Nov. 21, 1984.

      Thomas G. Keith of Legal Services of North-Central Alabama, Huntsville, for appellant.
    Gary W. Lackey, Scottsboro, for appel-lee.
   BRADLEY, Judge.

In November 1982 Jerry Verbeck, d/b/a Carlyle Piano Company (Carlyle Piano), filed suit in the Jackson County District Court against Erskine Van Ivey for recovery of a piano and bench or its equivalent value. Ivey answered, alleging various violations by Carlyle Piano of §§ 40-14-1 to -4, Code 1975; §§ 5-19-1 to -31, Code 1975 (the Mini Code); the State Banking Department’s Regulations; Ala. Const, art. XII, § 232; § 10-2A-247, Code 1975; 15 U.S.C. § 1601 (1982), the Federal Truth-in-Lending Act (FTLA); 12 C.F.R. § 226 (1981), Federal Reserve Regulation Z (Regulation Z). Ivey counterclaimed under the FTLA and asked for $1,000, attorney’s fees, and costs.

The district court awarded Carlyle Piano the piano, bench, fifteen percent attorney’s fees, and denied Ivey’s counterclaim. Ivey appealed to the Jackson County Circuit Court. After an ore tenus hearing at a trial de novo, the trial court awarded to Carlyle Piano the piano and bench, and to Ivey the amount he had already paid. The court ordered a reference and appointed a master to determine the value of the piano and bench and the amount Ivey had paid. The court later set the findings aside and held an ore tenus hearing at which it found that the alternate value of the property was $1,000 and that Ivey had paid $361 on the piano.

From a denial of his motion to alter, amend, or vacate the judgment, Ivey appeals to this court.

The record reveals the following pertinent facts. Mrs. Ivey wrote the Carlyle Piano Company requesting further information about a piano that had been advertised in the local newspaper. About a month later, on January 22, 1982, a salesman called Mrs. Ivey, telling her that he had come from Illinois and was fifteen miles from her home and had a piano for her to look at. After negotiations at the Ivey home between Mrs. Ivey and the salesman, Mrs. Ivey called her husband at work, and he evidently gave her permission to purchase the piano. She did so and signed her husband’s name, paying $105 down and agreeing to pay about $66 per month. The contract, according to Mrs. Ivey, purported to be with Carlyle Piano Company. She stated at trial that the contract was not filled out when she signed it.

Evidently, the contract was assigned to the Farmer’s and Merchant’s Bank of Carlyle, Illinois (the bank). Before the time when Mrs. Ivey believed she was to make her first payment, she received a coupon book from the bank. The bank was shown at trial to be a foreign corporation not qualified to do business in this state.

Soon, Mr. Ivey became unemployed and delinquent in his payments. Carlyle Piano, according to their complaint, unsuccessfully attempted on November 18, 1982 to repossess the chattels. Carlyle Piano then instituted this lawsuit.

The record from the trial court does not contain the “Mini Code affidavit” mandated by section 5-19-11, Code 1975. If this affidavit is required and it is not filed, the effect is that no judgment may be entered until the creditor has filed the affidavit. § 5-19-11, Code 1975.

Carlyle Piano alleges that the affidavit need not be filed since section 5-19-11 requires the affidavit on “an action on any debt for collection,” and that this is not that kind of suit — this is a detinue action to recover the piano or its alternate value. Ivey alleges that the affidavit had to be filed.

The threshold issue then is whether the complaint filed by Carlyle Piano is an action on a debt for collection to subject it to the affidavit requirements of section 5-19-11. We hold that it is.

In Alabama the beneficial qualities of the common-law actions of detinue and replevin have been statutorily joined by sections 6-6-250 through -264, Code 1975, and provide for a statutory method for the recovery of personal property. Richardson v. First National Bank, 46 Ala.App. 366, 242 So.2d 676 (Ala.Civ.App.1970); C. Gamble & D. Corley, Alabama Law of Damages § 34-8 at 365 (1982).

Statutory detinue seeks return of property in specie, or its alternate value, plus reasonable rental during detention. Roebuck Auto Sales, Inc. v. Wallace, 293 Ala. 231, 301 So.2d 546 (1974); § 6-6-256, Code 1975. Generally, it is reversible error not to assess the alternate value of the chattel at issue. Heathcock v. Hadley, 398 So.2d 715 (Ala.Civ.App.1981); Rogers v. Mitchell, 351 So.2d 612 (Ala.Civ.App.1977).

Thus, the remedy for recovery of chattels in Alabama is recovery of the chattels in specie. But it is not limited to this method. There is also provision for recovery of the alternate value of the chattel.

The plaintiff gets to elect whether he will accept return of the chattel or the alternate value. Williams v. Borden Foods Co., Division of Borden, 429 So.2d 591 (Ala.Civ.App.1982). An election to accept the alternate value makes the alternate value a money judgment which the plaintiff can collect. Williams, supra.

Thus, the Mini Code affidavit is necessary in detinue actions involving consumer credit transactions.

That the affidavit is required in attempts to repossess by judicial process has been impliedly recognized. In Gilliam v. Indiana National Bank, 337 So.2d 352 (Ala.Civ.App.1976), the bank was attempting to repossess chattels from the Gilliams. The bank had not filed a Mini Code affidavit. The Gilliams raised this in a motion to dismiss, as did Ivey in the present case. The motion to dismiss was overruled, but only after the affidavit was filed.

The failure to file the Mini Code affidavit limits the court’s authority to enter judgment until such time as the plaintiff files the affidavit, so long as it is not affirmatively waived. Welch v. G.F.C. Credit Corp., 336 So.2d 1346 (Ala.Civ.App.1976).

Here, there was no waiver since Ivey raised the issue early in the process by means of a motion to dismiss. Also, waiver of the affidavit requirement must be an intentional relinquishment of a known right. Graham v. University Credit Union, 411 So.2d 144 (Ala.Civ.App.1982). The record reflects no intentional relinquishment.

Thus, the trial court was without authority to render any judgment on the plaintiffs complaint until the affidavit of section 5-19-11 was filed.

The inability of the trial court to proceed to judgment on plaintiffs complaint until the required affidavit was filed did not, however, prevent the trial court from hearing and deciding Ivey’s counterclaim based on alleged violations of the Truth-in-Lending Act, 15 U.S.C. § 1631 (1982) and Regulation Z, 12 C.F.R. § 226 (1981). The trial court heard and decided the counterclaim, and we now consider Ivey’s contention that the trial court erred in overruling it.

Ivey seeks the statutory penalty of double the finance charge or a maximum of $1,000, plus a reasonable attorney’s fee, as allowed in 15 U.S.C. § 1640 (1976). In this case, twice the finance charge is $1,234.62; hence, $1,000 is the most that could be awarded as a penalty. To be allowed this penalty, there must be a creditor who fails to comply with the disclosure requirements of 15 U.S.C. §§ 1631-1646 (1976). 15 U.S.C. § 1640(a) (1976). Ivey assigns two failures.

First, the disclosure statement contains a confession of judgment clause. These clauses are statutorily forbidden in Alabama and any provision for them “shall be void.” § 8-9-11, Code 1975. In Gennuso v. Commercial Bank & Trust Co., 566 F.2d 437 (3d Cir.1977), reference in a Note and Security Agreement to a nonexistent confession of judgment clause was held to be a violation of Regulation Z since it was misleading. In the case at bar the disclosure statement refers to a clause which is void under Alabama law. It is therefore misleading and a violation of Regulation Z.

Also asserted as a violation of Regulation Z is that the contract provides for the debtor to pay Carlyle Piano’s reasonable attorney’s fees at default. Since Alabama limits the creditor’s attorney’s fees to fifteen percent of the unpaid debt at default, § 5-19-10, Code 1975, Ivey alleges that this is misleading under both 15 U.S.C. § 1631 and 12 C.F.R. § 226.6(c). We agree. The FTLA is to be liberally construed in the consumer’s favor and it is to be strictly enforced. Martin v. American Express, Inc., 361 So.2d 597 (Ala.Civ.App.1978). Liberally construing the Act in Ivey’s favor and strictly enforcing it, this provision in the contract is a violation of Regulation Z.

Based on these two violations of Regulation Z, the trial court should have awarded Ivey $1,000, plus a reasonable attorney’s fee. Ivey’s attorney was from the Legal Services of North-Central Alabama. A debtor who is represented by a legal services attorney is just as entitled to an award of a reasonable attorney’s fee as one who is represented by an attorneyrforhire. Ingram v. Cedar Springs Federal Credit Union, 451 So.2d 353 (Ala.Civ.App.1984).

Therefore, the judgments of the trial court on plaintiff’s complaint and Ivey’s counterclaim are both' reversed and the cause remanded for entry of judgment on the counterclaim of a statutory penalty of $1,000, plus a reasonable attorney’s fee to be determined by the trial court. Whether plaintiff could file the affidavit and proceed to judgment on his claim after reversal for failure to file the affidavit was not an issue on appeal and, thus, was not addressed by this court.

REVERSED AND REMANDED WITH INSTRUCTIONS. .

WRIGHT, P.J., and HOLMES, J., concur.


author: HOLMES, Judge.

text:
    Percy SMITH, Jr., and Eulalia Smith v. ALABAMA MEDICAID AGENCY.
    Civ. 4450.
    Court of Civil Appeals of Alabama.
    Nov. 7, 1984.

      J. Paul Whitehurst and Henley & Shirley, Northport, for appellant.
    Charles A. Graddick, Atty. Gen., and Tom Wright, Spec. Asst. Atty. Gen., for appellee.
   HOLMES, Judge.

This is a case involving the subrogation rights of the Alabama Medicaid Agency from a settlement agreement between the recipient and third parties.

The recipient of certain Medicaid benefits brought suit against third party tortfeasors for injuries that he had received. The suit was settled out of court, and the recipient later brought action to determine the amount that should be repaid to Medicaid.

The Circuit Court of Tuscaloosa County granted Medicaid’s motion for summary judgment and allowed the agency to recoup 100% of the paid benefits.

The recipient contends that Medicaid should be awarded less than the full amount of expenditures made by the agency because the recipient, through settlement, received less than a full recovery from the third parties. We affirm the ruling of the trial court, in that Medicaid should be allowed to recover 100% of the benefits paid in this case.

However, we should not be understood to mean that, in every instance, based on Alabama Medicaid law, the agency should be fully reimbursed for amounts paid, as such a determination depends on the facts of a particular case.

The record in this case reveals that the recipient was injured when concrete steps collapsed as he was leaving his sister’s home. The injury was to his left knee and required two operations.

The Alabama Medicaid Agency expended $6,887.55 on the recipient’s behalf for the medical assistance that he received. Later, the recipient filed suit against several defendants for his injuries. Medicaid made an agreement that the recipient’s attorney would represent the agency in the suit and would be paid one-third of the agency’s recovery.

The suit was subsequently settled on behalf of the recipient in an amount of $100,-000. The recipient brought an action seeking to determine to what amount Medicaid was entitled. On motion by Medicaid, summary judgment was granted in favor of a 100% recovery by the agency, to wit, $6,887.55.

The statute that pertains to the recovery of medical assistance under the Alabama Medicaid program provides:

“(a) If medical assistance is provided to a recipient under the Alabama medicaid program for injuries, disease or sickness caused under circumstances creating a cause of action in favor of the recipient against any person, firm or corporation, then the state of Alabama shall be subrogated to such recipient’s rights and shall be entitled to recover the proceeds that may result from the exercise of any rights of recovery which the recipient may have against any such person, firm or corporation to the extent of the actual amount of the medical assistance payments made by the Alabama medicaid program. The recipient shall execute and deliver instruments and papers to do whatever is necessary to secure such rights and shall do nothing after said medical assistance is provided to prejudice the subrogation rights of the state of Alabama.”

Ala.Code (1975), § 22-6-6(a).

This statute was authorized under the Federal Medicaid program, which states in pertinent part:

“(C) that in any case where such a legal liability is found to exist after medical assistance has been made available on behalf of the individual and where the amount of reimbursement the State can reasonably expect to recover exceeds the costs of such recovery, the State or local agency will seek reimbursement for such assistance to the extent of such legal liability;”

42 U.S.C.A. § 1396(a)(25)(C) (West 1983).

As stated, the recipient contends that the full amount of benefits paid by Medicaid should not be reimbursed if a full recovery is not received from third parties. Medicaid, on the other hand, contends that the statute clearly authorizes and/or requires 100% recovery of benefits in every case.

Section 22-6-6 states that Medicaid “shall be subrogated to such recipient’s rights and shall be entitled to recover the proceeds that may result from the exercise of any rights of recovery ... to the extent of the actual amount of the medical assistance payments made by the Alabama medicaid program.” Medicaid states that “to the extent ... [of] payment” clearly, means that the legislature intended 100% repayment of benefits without regard to the facts of the case.

This contention totally ignores the phrase “shall be subrogated.” When a court determines legislative intent, a statute must be interpreted as a whole. Sparks v. Calhoun County, 415 So.2d 1104 (Ala.Civ.App.1982).

In Alabama, subrogation is not a matter of strict right but is an equitable principle that is dependent on the particular facts of a case. Zeigler v. Blount Brothers Construction Co., 364 So.2d 1163 (Ala.1978). The theory behind the principle is to seek to prevent the unjust enrichment of one party at the expense of another through contribution. Liberty Mutual Insurance Co. v. Manasco, 41 Ala.App. 110, 123 So.2d 525 (Ala.Ct.App.1959), rev’d on other grounds, 271 Ala. 124, 123 So.2d 527 (1960).

When there is no special legislative intent or definition, statutory terms are to be viewed in light of their usual and ordinary meaning with consideration to the purpose and context of the statute where they are found. State v. Georgia-Florida-Alabama Equipment Co., 425 So.2d 472 (Ala.Civ.App.1982). Weight will be given to the practical effect that a proposed construction will have. State v. AAA Motor Lines, Inc., 275 Ala. 405, 155 So.2d 509 (1963).

In White v. Sutherland, 92 N.M. 187, 585 P.2d 331 (N.M.Ct.App.1978), the court interpreted a very similar Medicaid statute that stated that the department “is subro-gated ... to the extent the department has made payment.” The court held that sub-rogation was an equitable right that depends on the facts of the case and that 100% recovery was not required.

Some states that have interpreted similar statutes are in agreement, others are not, requiring a full recoupment. See State v. Cowdell, 421 N.E.2d 667 (Ind.Ct.App.1981); Coplien v. Department of Health and Social Services, 119 Wis.2d 52, 349 N.W.2d 92 (Wis.Ct.App.1984).

Here, it does not appear that the legislature intended any other definition of “subrogation,” and, as suchj a right of recovery by Medicaid is subject to equitable principles.

Because of the ordinary meaning given to the word “subrogation,” we do not understand § 22-6-6 as requiring 100% recovery of medical assistance paid. Additionally, 42 U.S.C.A. § 1396(a)(25)(C) does not specifically require or even suggest 100% recovery. Rather, equitable principles should be applied to determine Medicaid’s right of recovery and such would depend on the facts of each case.

In this case, the recipient made a settlement of his claim in an amount of $100,000 for the injury to his left knee. His medical expenses were $6,887.55, which is less than seven percent of his recovery. Based on these facts, the injury to the recipient, the settlement amount, medical expenses for the injury, and the absence of other facts as revealed by the record, we do not find that the trial court erred in determining Medicaid should receive the entire amount. The recipient is left with a recovery of over $93,000.

The recipient’s attorney further contends that Medicaid is required to pay a reasonable attorney’s fee for the attorney’s effort in securing a recovery from the third parties.

The judgment of the trial court granting the motion for summary judgment did not specifically address the issue of attorney’s fees which were claimed in the recipient’s complaint. The trial court simply granted Medicaid’s motion for summary judgment. As such, it appears that the trial court by implication has denied an attorney’s fee.

In this state, “attorneys’ fees are recoverable only when authorized by statute, when provided in a contract, or by special equity, such as in a proceeding where the efforts of an attorney create a fund out of which fees may be paid.” Eagerton v. Williams, 433 So.2d 436, 450 (Ala.1983).

Here, there appears to be a written contract for fees and a “common fund.” This court stated in Henley & Clarke v. Blue Cross-Blue Shield of Alabama, 434 So.2d 274 (Ala.Civ.App.1983), that in order to have a “common fund” there must be a “fund” from which to compensate the attorney, that the attorney’s services must benefit that “fund,” and the party that seeks the fee and the party that is to be charged with the fee must both have some interest in the “fund.”

In this case, it appears the settlement agreement created a fund and the recipient’s attorney benefited that fund. Medicaid cannot now say that it did not have an interest in the fund and was not benefited by the attorney’s action.

Attorney’s fees should have been awarded to the recipient’s attorney by Medicaid and the trial court erred in not making such an award.

In summary, we cannot say that the facts in this case demand that Medicaid should recover less than 100% of the benefits paid, and the trial court did not err in granting summary judgment that awarded full recovery.

Attorney’s fees, however, should have been awarded to the recipient’s attorney, and the denial by the trial court is due to be reversed.

AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.

WRIGHT, P.J., and BRADLEY, J., concur.


text:
    (In the Matter of Brian VON GOYT and Maude Jones). Rennotta VON GOYT (Ruth Ann Jones) v. STATE of Alabama, DEPARTMENT OF PENSIONS AND SECURITY.
    Civ. 4353.
    Court of Civil Appeals of Alabama.
    Nov. 14, 1984.

      Edwina E. Miller, Tuscaloosa, for appellant.
    Michael S. Burroughs of Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, for appellee.
   BRADLEY, Judge.

This is an appeal from an order permanently depriving Rennotta Yon Goyt of parental rights in her children, Maude Jones and Brian Von Goyt. We affirm.

On November 2, 1979 Miss Von Goyt, while a patient at Bryce Hospital in Tuscaloosa, gave birth to her daughter, Maude Jones. When Maude was six days old the Department of Pensions and Security obtained a voluntary boarding home agreement from Miss Yon Goyt, permitting it to temporarily place Maude in a foster home. In January 1980 Maude was returned to Miss Von Goyt’s custody. In March 1980 Miss Von Goyt was readmitted to Bryce Hospital, and she had been in and out of various mental institutions until July 1982 when she was released in order to give birth to her second child, Brian. Miss Von Goyt also moved several times from 1979 to 1983 because she was often asked to leave due to several complaints from neighbors about her unusual behavior.

Suzanne Pitts, a social worker at the Department of Pensions and Security, after becoming concerned about Maude’s behavior and appearance around December 1983, took her to a pediatrician, who found traces of a major tranquilizer in Maude’s urine sample. In January 1984 Miss Pitts and her supervisor filed a petition in the Tuscaloosa County Juvenile Court for termination of Miss Von Goyt’s parental rights, alleging that her mental condition prevented her from properly caring for her children and that she was unable to provide them with a stable environment. The juvenile court terminated Miss Von Goyt’s parental rights and awarded custody of the children to the department to be placed for adoption.

Miss Von Goyt appealed to the Tuscaloosa Circuit Court, which heard the case de novo, receiving into evidence Miss Von Goyt’s medical records from Bryce Hospital and Indian Rivers Mental Health Center. The circuit court affirmed the juvenile court’s order. After her motion for a new trial was denied, Miss Von Goyt appealed to this court.

Miss Yon Goyt urges on appeal that the Bryce Hospital and Indian Rivers records containing information about her treatment are protected by the psychologist-client privilege pursuant to section 34-26-2, Code 1975, and should not have been admitted into evidence. The department contends that the privilege was waived because Miss Von Goyt signed several releases authorizing an exchange of her records between the department, Bryce Hospital, and Indian Rivers, and because she failed to object to Mr. Franklin’s testimony in juvenile court about her mental condition. We disagree with the department’s contentions.

There is testimony that Miss Von Goyt executed several releases; however, the record contains only one release, which release authorizes the Bryce Hospital records to be transferred to Indian Rivers. The release was provided for the stated purpose of “treatment planning” and was not a public disclosure. The privilege extends to this exchange of information between the mental health facilities, because the disclosure was necessary for Miss Von Goyt’s treatment. See 97 C.J.S. Witnesses § 295 (1957). Moreover, the release stated that Miss Von Goyt could withdraw her consent at any time, and she did so at trial. We conclude, therefore, that the release signed by Miss Von Goyt did not constitute a voluntary waiver of her psychologist-patient privilege. Nor did her failure to object to Mr. Franklin’s testimony constitute a voluntary waiver, because he is not a psychologist, and, thus, no privilege applies. Mr. Franklin also did not have Miss Von Goyt’s privileged records before him in juvenile court, so that no objection was necessary. Accordingly, we reject the department’s assertion that Miss Von Goyt waived her privilege.

However, the department contends that this privilege, if it exists, should not bar production of Miss Von Goyt’s medical records, because the court needs these records in order to make the proper custody decision for the children.

The question whether the court may disregard the psychologist-patient privilege in a custody proceeding has not been addressed by our state courts. However, several other state courts have held that the right of a party to a custody proceeding to invoke the psychologist-patient privilege is outweighed by the right of a child to a proper determination of custody. See Critchlow v. Critchlow, 347 So.2d 453 (Fla.Dist.Ct.App.1977); Matter of A.J.S., 630 P.2d 217 (Mont.1981); In re Norwood, 194 Neb. 595, 234 N.W.2d 601 (1975); D. v. D., 108 N.J.Super. 149, 260 A.2d 255 (1969); People ex rel. Chitty v. Fitzgerald, 40 Misc.2d 966, 244 N.Y.S.2d 441 (Sup.Ct.1963). See also Koump v. Smith, 25 N.Y. 287, 303 N.Y.S.2d 858, 250 N.E.2d 857 (1969).

Our courts have consistently held that the paramount consideration in a custody matter is the child’s best interests. Ezell v. Hammond, 447 So.2d 766 (Ala.Civ.App.1984). A court cannot determine the best interests of the child without considering whether a party to a custody proceeding is physically, financially, or mentally able to care for the child. We find it significant that the legislature in section 26-18-7, Code (Supp.1984), indicates that a court may consider a parent’s mental illness or deficiency in determining whether to terminate parental rights. Particularly, where the state has petitioned our court to terminate a mother’s custody of her children because of her mental instability, the court should be permitted to investigate her mental health records in order to determine whether a termination is necessary.

We recognize that the psychologist-patient privilege is an important one, not to be easily disregarded. We do not seek to discourage troubled parents from obtaining professional help. However, we are convinced that where the issue of the mental state of a party to a custody suit is clearly in controversy, and a proper resolution of the custody issue requires disclosure of privileged medical records, the psychologist-patient privilege must yield. See Perry v. Fiumano, 61 A.D.2d 512, 403 N.Y. S.2d 382 (N.Y.App.Div.1978).

Substantial doubt was cast on Miss Von Goyt’s ability to care for her children. We find, therefore, that the trial court had sufficient evidence before it concerning Miss Yon Goyt’s instability to warrant an inspection of her medical records.

Miss Yon Goyt asserts, however, that admission of her medical records was improper because these records were irrelevant. She urges that these records addressed merely her past ability to care for her children and not her present ability to do so. She cites4 Hamilton v. State, 410 So.2d 64 (Ala.Civ.App.1982), as support for her contention. This case indicates that our courts must consider a mother’s present ability to care for her children in determining whether to terminate her parental rights, and evidence of only her past life is insufficient to support a termination.

We find that the materiality of these records was clearly established by testimony from several witnesses concerning Miss Von Goyt’s current mental instability and by the prognosis made by Mr. Franklin, indicating that her mental disorder was incurable. The department reports admitted into evidence were current and clearly reflected a relationship between her past and present mental condition, showing that her behavior was still unstable. Moreover, the trial court has wide latitude in the evidence that it may consider in deciding the proper custody of a child. Worley v. Jinks, 361 So.2d 1082 (Ala.Civ.App.1978). We consider the admitted medical records to be relevant to the issues before the court. Thus, the court did not err in admitting Miss Von Goyt’s medical records.

At trial David Franklin, a counselor at Indian Rivers Mental Health Center, testified that an Indian Rivers psychiatrist, whose report was contained in the admitted medical records, characterized Miss Von Goyt’s mental disorder as “paranoid schizophrenia.” He defined this term and stated that this diagnosis was consistent with his own, based on his personal observations of Miss Von Goyt. Miss Von Goyt contends that Mr. Franklin’s testimony was inadmissible because he is not a qualified expert and was, therefore, unable to testify as to a diagnosis made by a psychiatrist, or to give his opinion about Miss Von Goyt’s mental disorder.

The question whether a witness may be qualified as an expert is within the discretion of the trial court, and the court’s decision will not be reversed unless it clearly appears that it was prejudicial error. Federal Mogul Corp. v. Universal Construction Co., 376 So.2d 716 (Ala.Civ.App.1979). Generally, if it is shown that a witness has acquired knowledge in a particular field beyond that of an ordinary layman, through study, training, experience, or observation, that witness may be qualified as an expert. Aetna Life Insurance Co. v. Hare, 47 Ala.App. 478, 256 So.2d 904 (Ala.Civ.App.1972). Mr. Franklin has a master’s degree in counseling and has worked twelve years as a counselor in the mental health field. He has served eight of those years as a counselor at Indian Rivers. Mr. Franklin was clearly shown to be competent to testify concerning certain psychological terms used in Miss Von Goyt’s medical records and to give, based on personal observation, his opinion concerning her disorder. Thus, the court did not err in permitting Mr. Franklin to testify-

We conclude that substantial evidence was presented clearly showing that Miss Von Goyt is unable to properly care for her children. Accordingly, we affirm the order of the trial court terminating Miss Von Goyt’s parental rights to her children.

AFFIRMED.

WRIGHT, P.J., and HOLMES, J., concur.


text:
    Jimmy L. RICHARDS v. GENERAL MOTORS CORPORATION and Dewey Barber Chevrolet, Inc.
    Civ. 4567.
    Court of Civil Appeals of Alabama.
    Nov. 14, 1984.
    Rehearing Denied Dec. 12, 1984.

      R.B. Jones, Birmingham, for appellant.
    Charles L. Robinson and James C. Barton, Jr. of Johnston, Barton, Proctor, Swed-law & Naff, Birmingham, for appellee.
   BRADLEY, Judge.

Jimmy L. Richards filed an action against General Motors Corporation and Dewey Barber Chevrolet, Inc., seeking revocation of acceptance of a new 1982 Chevrolet pickup truck he had purchased from Barber Chevrolet. Trial was had before a jury, and it revoked Richards’s acceptance of the truck and found that plaintiff’s use of the truck while in his possession was valued at $1,200. After the verdict was returned the trial court opened the case to allow Richards to introduce additional evidence relating to the use of the truck while in Richards’s possession, i.e. whether the principal use was commercial or personal.

Richards also at this time requested that he be awarded an attorney’s fee as permitted by the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act, 15 U.S.C. § 2310(d)(2) (1982) (the Act). Before the attorney’s fee provision of the Act can apply, it must be determined that the goods at issue are consumer goods. 15 U.S.C. § 2310(d)(1). The trial court, sitting without a jury, decided that the pickup truck was not a consumer good or equipment and denied the request for an attorney’s fee. Plaintiff appeals.

State law, not the Act, determines whether the truck is a consumer good or equipment. The test adopted in Alabama is the “primary use” test. If the goods “are used or bought for use primarily for personal, family or household purposes,” they are consumer goods. § 7-9-109(1), Code 1975. If they “are used or bought for use primarily in business,” they are equipment. § 7-9-109(2), Code 1975. The primary use of the good or equipment is a matter of fact to be determined by a jury. See Grimes v. Massey Ferguson, Inc., 355 So.2d 338 (Ala.1978).

In the instant ease the trial court, sitting without a jury, decided, based on the evidence submitted during the main hearing and after the case was reopened, that the truck was used primarily for commercial purposes. Richards says that the trial court erred by not submitting the issue to the jury. Nowhere in the record does it appear that Richards requested the trial court to present to the jury the issue of the type use to which the truck had been put. Richards’s only written requested charge had nothing to do with the truck’s use. Moreover, when asked by the court after the oral charge if he had any objections, Richards replied that he was satisfied.

It is well settled that:
“[N]o party may assign as error the giving or failing to give a written instruction or the giving of an erroneous, misleading, incomplete or otherwise improper oral charge unless he objects thereto, stating the matter to ... which he objects and the grounds of his objection.”

Walker v. Dutton, 401 So.2d 32 (Ala.1981). Rule 51, Alabama Rules of Civil Procedure. See also, General Sales Co. v. Miller, 454 So.2d 532 (Ala.1984); Griffin v. Gregory, 355 So.2d 691 (Ala.1978); Herbert v. Huie, 1 Ala. 18, 34 Am.Dec. 755 (Ala.1840). No objections were timely made and, therefore, the trial court was not in error in determining the primary use of the truck as a matter of fact.

The factual findings of the trial court sitting without a jury will not be disturbed on appeal unless they are plainly and palpably incorrect. Rapaco, Inc. v. Agee, 453 So.2d 1048 (Ala.Civ.App.1984). There was ample evidence in the record from which the trial court could have determined that the truck was used primarily as business equipment: Richards said he used the vehicle to haul produce from his Blountsville farm to the Birmingham farmers’ market; he used it to pull a cattle trailer; and he depreciated it as a business expense on his 1982 federal income tax return.

Since the trial court found that the truck was not a consumer good, Richards is not entitled to attorney’s fees under the Act since the Act applies only to consumer goods.

Richards’s next contention is that the court erred in not giving the requested jury charge on prejudgment interest. We disagree. Prejudgment interest is awarded in Alabama only when the amount due is certain or capable of being made certain. Wood v. Central Bank, 435 So.2d 1287 (Ala.Civ.App.1982). Here, the amount due the plaintiff was neither certain nor capable of being made certain by mere computation.

At the time Richards asked that the contract for purchase of the truck be revoked, he requested the return of the $11,000 purchase price. However, from the time of the revocation to the time of trial Richards had driven the truck several thousand miles, and the value of this use had to be computed before the amount due plaintiff could be determined. The jury determined the value of the use of the truck to be $1,200. Since this amount had to be determined by the jury, the amount due plaintiff was not susceptible of simple computation and, hence, was not subject to prejudgment interest.

Finally, Richards says that the trial court’s requirement that he return the truck to the defendants free and clear of all liens and encumbrances amounted to a deprivation of his property without due process of law, in violation of the United States and Alabama Constitutions. However, no cases are cited in brief, nor is there any argument made in support of this issue.

This court has previously held that where the appellant fails to cite authority for his positions asserted on appeal we may affirm the decision below since “It is neither our duty nor function to perform all of the legal research for appellant.” Rapaco, Inc. v. Agee, supra; Shory v. Peavy, 431 So.2d 1319 (Ala.Civ.App.1983); Rule 28(a)(5), Alabama Rules of Appellate Procedure. See also, Welch v. Turner, 411 So.2d 143 (Ala.Civ.App.1982); William Wilson Enterprises, Inc. v. Napier, 395 So.2d 89 (Ala.Civ.App.1981).

The judgment of the trial court is affirmed.

AFFIRMED.

WRIGHT, P.J., concurs.

HOLMES, J., concurs in the result.


text:
    HYSTER COMPANY, a Corporation v. Clovis H. CHANDLER.
    Civ. 4380.
    Court of Civil Appeals of Alabama.
    Nov. 28, 1984.

      John W. Clark, Jr. of Clark & Scott, Birmingham, for appellant.
    James K. Davis of Fite, Davis & Atkinson, Hamilton, for appellee.
   HOLMES, Judge.

This is a workmen’s compensation case.

The trial judge awarded workmen’s compensation benefits to the employee after making the following findings of fact:

“[T]he Plaintiff, Clovis H. Chandler, was an employee of the Defendant ... prior to September 2, 1982, the Plaintiff contracted an occupational disease arising out of and in the course of his employment with the Defendant, as defined by Code of Alabama 1975, Section 25-5-110, et seq., as last amended; that said occupational disease was not in and of itself disabling until, to-wit, September 2, 1982, when the Plaintiff was engaged in strenuous exercise of handling fire wood within the line and scope of his employment for the Defendant, and at said time, the Plaintiff suffered injury by accident in that a valve or other part of his circulatory system was caused to leak; and that the Plaintiff instantly became totally disabled, ... to earn a livelihood within the meaning of the Workmen’s Compensation Act since said date of injury .... the combination of occupational disease ... and the injury also sustained by Plaintiff on September 2, 1982, has caused the Plaintiff to be permanently and totally disabled, ... that said occupational disease and injury arose out of and in the course of his employment with the Defendant; .

The employer, through able counsel who has favored this court with an excellent brief, appeals. We affirm.

The dispositive issue on appeal is whether the trial judge’s finding that the employee is totally and permanently disabled because of the combination of an occupational lung disease and a heart injury is supported by the evidence.

We note that the standard of review by this court is as follows:

“[T]he standard of review in a workmen’s compensation case is very narrow .... On appeal, review of a workmen’s compensation case is limited to questions of law, and to examination of the evidence to determine if there is any legal evidence to support the findings of the trial court.”

Dodson v. Atrax Division of Wallace-Murray Corporation, 437 So.2d 1294, 1296 (Ala.Civ.App.1983).

We first consider whether there is any evidence to support a conclusion that the employee suffered an “occupational disease.”

The employee began working for the employer in September 1972. First, he worked as an assembler of steeraxles for approximately eight and one-half years; next, he washed machinery parts for a short time; then, he worked as a “debur-ry,” grinding brackets “[o]ff and on for two, two and a half years.” He testified that the grinding was a very dusty condition, that he had never seen such dust before in any plant he had worked in, and, furthermore, by the end of the working day, it was difficult to tell whether he was a “black man” or a “white man” because of the dust on his face and clothes.

In September 1979, or approximately one and one-half years after beginning to work as a deburry, the employee began spitting up blood. He was hospitalized for this in November 1979 for a short time. He testified that he went back to work as a debur-ry, grinding painted cast iron about eight hours “most everyday.”

The employee continued to work as a deburry until September 2, 1982. On this date, while handling firewood for the employer in hot weather with a temperature between 90 and 100 degrees, the employee had shortness of breath, weakness, chest pains, and heart palpitations. The employee saw the company doctor again but was referred to several specialists, including a pulmonary specialist, a thoracic surgeon, and two cardiologists.

Each of these doctors testified by deposition regarding their medical findings concerning the employee’s lungs and heart.

The testimony of the pulmonary specialist indicates the following: The pulmonary specialist examined X-rays of the employee’s lungs that were taken in November 1979 and February 1983. The pulmonary specialist stated that the X-rays did not show evidence of pneumoconiosis, an occupational, inhalation lung disease; however, the pulmonary specialist stated that the employee had a “tremendous pulmonary impairment based on his bullous disease in his right upper lobe.” (Emphasis added.) He was uncertain as to what caused the bullous condition.

The testimony of the thoracic surgeon indicates the following: The thoracic surgeon determined that there were cystic lesions, nodulation, and scarring in the employee’s right lung. He specifically testified that this lung disorder was a process contributed to by the excessive dust on the employee’s job; furthermore, the thoracic surgeon specifically stated that cigarette smoking by the employee did not cause such scarring, rather “these fibrotic infiltrates would go with lung exposure to some foreign body of some type.” (Emphasis added.) He also testified that “[ajnyone with lungs like this would be better not to be exposed to dust.”

The statutory definition of “occupational disease” is as follows:

“(1) OCCUPATIONAL DISEASE. A disease arising out of and in the course of employment, ... which is due to hazards in excess of those ordinarily incident to employment in general and is peculiar to the occupation in which the employee is engaged but-without regard to negligence or fault, if any, of the employer. A disease (including, but not limited to, loss of hearing due to noise) shall be deemed an occupational disease only if caused by a hazard recognized as peculiar to a particular trade, process, occupation or employment as a direct result of exposure over a period of time to the normal working conditions of such trade, process, occupation or employment ....
“(2) CONTRACTION OF AN OCCUPATIONAL DISEASE. Such term.shall include any aggravation of such disease without regard to the employment in which the disease was contracted.”

Ala.Code (1975), § 25-5-110.

The facts as detailed above indicate that there is evidence to support a conclusion that the employee suffered a “disease arising out of and in the course of employment” and that the disease is “due to hazards in excess of those ordinarily incident to employment in general,” “peculiar to the occupation,” and the “result of exposure over a period of time.” This is proper analysis as indicated in an earlier case interpreting the statutory definition of “occupational disease”:

“[TJhere [should] be evidence that plaintiff has a disease which may be directly caused by or result from exposure over a period of time to a hazard recognized as peculiar to the normal working conditions of his particular occupation. There must be further evidence that plaintiffs disease was in fact contracted from the nature of his employment or was aggravated thereby, and that the contraction or aggravation arose out of and in the course of his employment. It then must be shown that the disability claimed resulted from the disease.”

City of Tuscaloosa v. Howard, 55 Ala.App. 701, 318 So.2d 729, 734 (Civ.App.1975) (emphasis added).

First, we note that the facts indicate that there is a “disease arising out of and in the course of employment,” (Emphasis added.) The thoracic surgeon’s testimony, that the excessive dust on the employee’s job contributed to the scarring, cystic lesions, and nodulation in the employee’s lung, is the evidence that establishes that there is a “disease arising out of and in the course of employment.” Specifically, the fact that the excessive dust contributed to the employee’s lung disorder is an aggravation as stated in subsection 2 of the statute. See Ala.Code (1975), § 25-5-110. Put another way, “contributed to” is an “aggravation” in the statutory definition of “occupational disease.” See Dodson v. Atrax Division of Wallace-Murray Corp., 437 So.2d 1294, 1297 (Ala.Civ.App.1983).

Second, we note that the facts indicate that the disease is “due to hazards in excess of those ordinarily incident to employment in general,” “peculiar to the occupa-' tion,” and the “result of exposure over a period of time.” (Emphasis added.) The employee testified that he had never seen such dusty working conditions in a plant before; moreover, although not previously indicated, testimony of other plant employees indicates that other parts of the employer’s plant did not have this grinder’s dust. Furthermore, the grinder’s dust was apparently peculiar to the job of a debur-ry. Finally, the testimony indicates that the employee worked as a deburry for about two and one-half years before becoming too sick to do his job.

We, therefore, conclude that there is evidence to establish that the employee suffers from an occupational lung disease as defined in the Alabama Workmen’s Compensation Act.

Regarding the trial court’s finding that the employee suffered a heart injury within the line and scope of his employment, and that the employee is totally and permanently disabled as a result of the combination of the lung disorder and the heart disorder, we must, as previously indicated, determine whether there is any evidence to sustain this finding, i.e., the existence of a “heart injury.”

The facts pertinent to this injury are as follows: As previously indicated, each medical doctor testified by deposition regarding their findings concerning the employee’s lungs and heart. The testimony of the cardiologist from Birmingham, Alabama, indicates that the employee has án abnormal heart rate called premature ventricular contraction and a back microvalve leaking moderately. He testified that “[t]he minor valve leak would probably not affect his limitations without the lung disease, but when you put the two together, that was plenty to explain shortness of breath, fatigue and funny heart beats with exercise.” (Emphasis added.)

This cardiologist also testified that the leak was in the valve between the lungs and the heart and that the leaking increases with exercise. He concluded that the majority of the employee’s impairment or disability was a lung problem, or “seventy percent lungs and thirty percent valve”; moreover, although the employee was not a heart attack candidate, “if his heart was as bad as his lungs, he probably wouldn’t be alive.”

Furthermore, this cardiologist testified as follows regarding the employee’s disability:

“I doubt seriously if this man could do physical labor.
“... I don’t think that man could do physical labor with a shovel or a pick or a hoe or anything for eight hours, whether he’s a supervisor in a plant, whether he’s putting something on an assembly line .... I think he is unequivocally limited as compared to his peers, and that limitation is approximately forty or fifty percent.”
Before determining whether there is “any evidence” to establish that the employee suffered a heart injury within the line and scope of his employment and that the employee is totally and permanently disabled as a result of the combination of the lung disorder and the heart disorder, it would appear appropriate to note the following from our Workmen’s Compensation Act.
The Workmen’s Compensation Act requires that an employee’s injury emanate from “an accident arising out of and in the course of his employment_” See Ala. Code (1975), § 25-5-51. Put another way, we must determine whether the employee suffered a heart injury because of“an accident arising out of and in the course of his employment.”

In order to determine causation in this instance, we apply a legal causation test and a medical causation test as set forth in our earlier opinion, City of Tuscaloosa v. Howard, 55 Ala.App. 701, 318 So.2d 729, 732 (Civ.App.1975).

The legal causation test as set forth in Howard is the following:

“It appears that the proper test was set out in Pow v. Southern Construction Co., [235 Ala. 580, 180 So. 288 (1938)] ... which we paraphrase as follows: If in the performance of the duties for which he is employed an employee is exposed to a danger or risk materially in excess of that to which people not so employed are exposed, and an injury occurs, such injury may legally be determined to have arisen from his employment and be an accident under the statute.”

Howard, 318 So.2d at 732. Put another way, whether there is any evidence that the employee was exposed to a danger or risk, unlike other people not employed as a de-burry, is the legal causation test.

In this case, as previously indicated, the employee’s heart injury, or valve leakage, occurred while the employee was handling firewood for the employer in hot weather with a temperature between 90 and 100 degrees. This may indeed be considered a danger or risk in excess of that to which people not so employed are exposed to. Cf. Ex parte Neal, 423 So.2d 850 (Ala.1982). This is especially true in view of the fact that we must construe facts in favor of the employee in a workmen’s compensation case, if the evidence allows such a construction. Neal, 423 So.2d at 853. See also City of Muscle Shoals v. Davis, 406 So.2d 919, 922 (Ala.Civ.App.1981). We, therefore, conclude that the legal causation test is met in this case.

The medical causation test as set forth in Howard is the following: “[S]uch exposure, though operating with or upon other exposure common to all, was in fact, the contributing cause of the injury.” Howard, 318 So.2d 732. Put another way, whether there is any evidence, that the employee’s handling firewood in very hot weather was the contributing cause of the employee’s heart injury, is the medical causation test.

As a general rule, an employer takes his employee subject to his physical condition when he enters his employment. Allen v. Metro Contract Services, Inc., 421 So.2d 1289 (Ala.Civ.App.1982).

In this case, there was medical testimony that the employee had an abnormal heart rate and a leaking heart valve. As stated earlier, the cardiologist that examined the employee determined that the leakage increased with exercise and when coupled with his lung condition there was reason for his shortness of breath, fatigue, and irregular heartbeats with exercise.

If a condition is aggravated by an accident in the course of employment, the condition is compensable even though the accident may not have caused an injury in a normal person. Mitchell Motor Co. v. Burrow, 37 Ala.App. 222, 66 So.2d 198 (Ct.App.1953).

In Neal, a case analogous to the present case, the Supreme Court of Alabama determined that the medical causation test was satisfied. This was because a doctor’s testimony and medical records indicated that the employee’s accident in Neal was precipitated by severe heat exhaustion; furthermore, this diagnosis was based on the fact that family members informed the physician that prior to the employee’s illness, the employee “ ‘had been selling cars on an asphalt parking lot during the heat wave.’ ” Neal, 423 So.2d at 852.

Here, there appears to be some evidence that the heart condition was aggravated due to exercise. When coupled with the existing lung condition, the exercise of lifting wood in hot weather could have been the contributing cause of the injury. In view of the above, we conclude that there is some evidence to support a conclusion that the medical causation test has been met. See Neal, 423 So.2d at 852.

There is, as indicated, evidence to support a conclusion that the employee is permanently and totally disabled. There was, as mentioned above, testimony that the employee cannot perform physical labor. The evidence indicates that the only work ever performed by the employee was physical labor. In fact, there was testimony that the employee cannot do anything on a sustained basis. We further note that the employee has only a ninth grade education.

The above evidence, contrary to the employer’s contention, indicates that the employee could not be retrained for gainful employment. This is especially true in view of'our earlier decision, Thompson and Company Contractors v. Cole, 391 So.2d 1042, 1046 (Ala.Civ.App.1980), in which we held the following:

“Although the trial court did not specifically find that Cole could not be retrained for gainful employment, we hold that implicit in its conclusion that Cole was permanently and totally disabled is the finding that he could not be so retrained. This finding of fact, as with all other findings of fact made by the trial court, must, however, be supported by some evidence .... ”

It would appear appropriate to conclude this already lengthy opinion with the following: “The employee’s lack of education and vocational training coupled with the medical testimony is clearly sufficient evidence to support the trial court’s judgment regarding the employee’s loss of ability to earn.” Tidwell Industries, Inc. v. Kennedy, 410 So.2d 109, 111 (Ala.Civ.App.1982); and “total disability within the Workmen’s Compensation Act does not mean absolute helplessness or entire physical disability, but means inability to perform the work of one’s trade or inability to obtain reasonably gainful employment.” Vulcraft, Inc. v. Wilbanks, 54 Ala.App. 393, 396, 309 So.2d 105, 106 (Civ.App.1975). (Emphasis added.)

This case is due to be and is affirmed.

AFFIRMED.

WRIGHT, P.J., and BRADLEY, J., concur.

      . One who removes the burrs (rough edges) from a piece of machined work.