source: Caselaw Access Project

author: STUART, Justice. MURDOCK, Justice

license: Public Domain

text:
    ADMIRAL INSURANCE COMPANY v. Ryan PRICE-WILLIAMS.
    1110993.
    Supreme Court of Alabama.
    May 17, 2013.
    See also 40 So.3d 683.
    Bert P. Taylor and Natalie A. Daugherty of Taylor Ritter, P.C., Orange Beach, for appellant.
    Robert J. Hedge of Citrin Law Firm, P.C., Daphne, for appellee.
   On Application for Rehearing

STUART, Justice.

The opinion of January 11, 2013, is withdrawn, and the following is substituted therefor.

Ryan Price-Williams sued Admiral Insurance Company and Gabriel Dean and Charles Baber in the Mobile Circuit Court pursuant to Aabama’s direct-action statute, § 27-23-2, Aa.Code 1975. Both Dean and Baber were alleged by Price-Williams to be covered under a commercial general-liability insurance policy Admiral had issued the national Kappa Sigma fraternity to which Dean and Baber belonged. Price-Williams alleged that Admiral was obligated to pay a judgment that had been entered in favor of Price-Williams and against Dean and Baber in a previous action (“the underlying action”). Following a bench trial, the trial court entered a judgment in favor of Price-Williams and against Admiral, holding that the Admiral policy provided coverage to Dean and Ba-ber for the negligent and/or wanton acts that formed the basis of the underlying action. We reverse and remand.

I.

On January 31, 2004, Price-Williams was attacked and beaten at a fraternity house maintained by the University of South Alabama chapter of Kappa Sigma in Mobile (the local chapter is hereinafter referred to as “Kappa Nu”; the national fraternity is referred to as “Kappa Sigma”). Price-Williams suffered significant, permanent injuries as a result of the assault and incurred medical expenses of approximately $27,145. On November 28, 2005, Price-Williams sued Kappa Sigma and Kappa Nu and Dean, Baber, and Michael Howard, the three individuals alleged to have committed the assault, in the Mobile Circuit Court. Price-Williams’s complaint sought recovery based on the assault and asserted negligence and/or wantonness claims based on Dean’s and Baber’s failure as officers of Kappa Nu to implement the risk-management program Kappa Sigma required of local chapters, which program, Price-Williams alleged, would have either prevented the assault entirely or, at a minimum, limited its duration and intensity.

Shortly after it received the complaint, Kappa Sigma notified its insurer Admiral of a possible occurrence under its commercial general-liability policy; however, because its policy with Admiral contained a self-insured retention clause, Kappa Sigma took initial responsibility for the defense of Price-Williams’s claims. Kappa Sigma therefore retained its own counsel, which also represented Kappa Nu. However, that counsel did not represent either Dean or Baber, neither of whom made a claim upon Admiral for coverage based upon their status as officers of Kappa Nu. In fact, Dean, Baber, and Howard never retained counsel, never answered the complaint, and never appeared in the action, and a default judgment was accordingly entered against them. A summary judgment was also entered in favor of Kappa Sigma, and, by the time the jury trial began on November 17, 2008, Kappa Nu was the only remaining defendant.

After closing arguments were made at the conclusion of the trial, Kappa Nu reached a settlement with Price-Williams. Upon notifying the trial court of the settlement agreement, Price-Williams moved the trial court to withdraw his jury demand and to enter a final judgment against Dean, Baber, and Howard based upon the evidence adduced at trial. The trial court granted the motion, dismissed the jury, and thereafter entered a 10-page order containing the following findings of fact and judgment:

“11. As to [Price-Williams’s] second and third causes of action, the court finds that both Dean and Baber, as officers of the local fraternity, had assumed and/or were under a duty to create, implement, supervise, and enforce what was described during trial as the chapter’s ‘risk management program.’ The court further finds, based upon the testimony offered at trial as well as documentary evidence introduced during trial, including the Executive Officers’ Manual ... and the Kappa Sigma Fraternity Risk Management Manual ..., that these defendants both negligently and wantonly breached their individual duties to create, implement, supervise, and enforce a risk management program, and that as a proximate consequence of said breaches, [Price-Williams] was caused to suffer those injuries and damages as proven in this case.
“12. More particularly, the court finds that both Dean and Baber, in accepting their roles as executive officers of the local fraternity, agreed and assumed the duties imposed upon them that are found in the Executive Officers’ Manual and the Kappa Sigma Fraternity Risk Management Manual, which included the implementation and enforcement of a risk management program ....
“18. The evidence introduced at trial established that Dean, the president of the local fraternity, was considered the chief executive officer of the chapter. As president, Dean assumed and carried the ultimate duty both individually and on behalf of the local and national fraternity for the implementation and supervision of the chapter’s risk management program. This means that it was his responsibility, acting within the scope of his duties as president, to take steps toward creating and enforcing a risk management program for the local fraternity at the University of South Alabama. He was responsible for working with the risk management committee chairman on the development of the chapter’s risk management program, and in carrying out the goals of preventing injuries at the chapter house.
“14. Additionally, substantial evidence was introduced that established that Baber, as the vice president, was the second in command at the fraternity house on the night in question. The court finds that his duties included not only the implementation of a risk management program, but also the actual enforcement of the program on the night in question_ [Price-Williams] proved through the evidence at trial that neither of these officers took any steps in carrying out their duties of ensuring that order was maintained at the fraternity house on the evening in question.
“15. To the contrary, the evidence clearly and convincingly established that both Dean and Baber had been drinking this particular night, and that one or both of them knew that an assault was probably going to occur on [Price-Williams] once he walked through the front door of the fraternity house. The fact that no risk management program or education had been implemented only aggravated the situation once the assault began, since neither Dean nor Baber had left any responsible individual in charge of maintaining order at the fraternity house as was required under a reasonable risk management program which, in the court’s opinion, would have minimized and/or prevented the assault from occurring in the first instance....
“16. The Kappa Sigma national fraternity, a former defendant in this action, granted to the local fraternity the authority and right to establish and operate a local fraternity at the University of South Alabama. The evidence at trial clearly established that both Dean and Baber, as the president and vice president of the local fraternity, pursuant to the authority bestowed upon them by the national and local fraternity, assumed the duty to create, implement, supervise, and enforce a risk management program relative to the operation of the local fraternity. These individuals were obligated to act in accordance with these duties which were required to be performed as part of their duties on behalf of the local and national fraternity. The court finds that these two individual defendants, Dean and Baber, both negligently and wantonly breached their individual duties by failing to create, implement, supervise, and enforce an appropriate risk management program as alleged by [Price-Williams] in his complaint. The court further finds' that these two individual’s negligence and wantonness was committed while acting within the scope of these two individual’s duties on behalf of the fraternity.
“Accordingly, the court hereby finds in favor of the plaintiff, Ryan Price-Williams, and against the three individual defendants, jointly and severally, as to the claims raised in [Price-Williams’s] complaint. The court hereby awards to [Price-Williams] and against the individual defendants total compensatory damages in the amount of $500,000. The court further finds that an award of punitive damages is warranted based upon the clear and convincing evidence of wantonness of the individual defendants as to all three claims raised in [Price-Williams’s] complaint, and hereby awards to [Price-Williams] and against the individual defendants punitive damages in the amount of $750,000, which is one and one-half times the amount of compensatory damages to be awarded to [Price-Williams]. The total amount of the verdict is therefore $1,250,000. It is the intention of this Court that this- verdict represents the total damages to be awarded to [Price-Williams] in this case for all damage[] suffered by him as a result of the January 31, 2004, incident, and that the individual defendants are entitled to a setoff of the amount paid to [Price-Williams] by [Kappa Nu] as a result of the confidential pro tanto settlement.”

Subsequently, there was a dispute between Price-Williams and Kappa Nu regarding the settlement agreement and, specifically, whether as part of the settlement Price-Williams had agreed to release only Kappa Sigma and Kappa Nu or, as Kappa Nu maintained, to release Kappa Sigma, Kappa Nu, and Dean and Baber in their capacities as agents of Kappa Nu. Motions were filed by both parties with the trial court, which eventually ruled in favor of Price-Williams. Kappa Nu appealed that judgment to this Court, which affirmed the decision of the trial court, stating:

“At the hearing on the parties’ motions to enforce the settlement agreement held on February 6, 2009, the trial court correctly noted that counsel for [Kappa Nu] did not represent the individual defendants and that counsel therefore had no basis on which to argue on behalf of the individual defendants. The trial court also correctly concluded that a release by Price-Williams of all claims against [Kappa Nu], including all claims based on theories of vicarious liability, would fully protect the chapter from liability — even liability arising from actions of the individual defendants to the extent they are agents of the chapter. In light of the colloquy that took place on November 20, 2008 [when the parties announced that a settlement had been reached], we conclude that the trial court’s interpretation of the settlement agreement was not clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of evidence.”

Kappa Sigma Fraternity v. Price-Williams, 40 So.3d 683, 693 (Ala.2009).

On October 6, 2009, approximately two months before our decision in Kappa Sigma was released, Price-Williams filed the instant action pursuant to § 27-23-2, alleging that, by virtue of their status as officers of Kappa Nu, Dean and Baber were additional insureds under the commercial general-liability insurance policy Kappa Sigma held with Admiral on the date of the assault. Admiral filed a response denying that Dean and Baber were covered under Kappa Sigma’s policy. On May 3, 2011, the trial court conducted a bench trial; however, Admiral did not attend the trial, having been under the mistaken belief that the case would be decided through the submission of briefs. Notwithstanding Admiral’s absence, the trial court proceeded to hear testimony from Baber and to receive exhibits, depositions, and documentary evidence from the parties in attendance.

Admiral and Price-Williams thereafter submitted trial briefs in support of their positions, and, on March 9, 2012, the trial court entered an order stating its findings of fact and conclusions of law and entering a judgment in favor of Price-Williams. In that final judgment, the trial court recognized that an assault-and-battery exclusion in the Admiral policy excluded coverage for any bodily injury resulting from Dean’s and Baber’s assault on Price-Williams but held that the exclusion did not apply to bodily injury caused by Howard’s assault or bodily injury attributable to Dean’s and Baber’s negligence and wantonness in failing to implement a proper risk-management program, which failure, the trial court concluded, “actually facilitated Howard’s conduct of assaulting [Price-Williams].” No postjudgment motions were filed, and, on April 19, 2012, Admiral filed its notice of appeal to this Court.

II.

The trial court in this case considered both oral and written evidence; however, our resolution of the issues on appeal hinges solely on the application of unambiguous language in the Admiral commercial general-liability insurance policy to undisputed facts. Accordingly, the ore tenus rule is inapplicable here, and the trial court’s judgment is afforded no presumption of correctness. Our review, therefore, is de novo. See also McDonald v. U.S. Die Casting & Dev. Co., 585 So.2d 853, 855 (Ala.1991) (“If the terms within a contract are plain and unambiguous, the construction of the contract and its legal effect become questions of law for the court_”).

III.

Admiral argues that the trial court’s judgment should be reversed because, it says, the gravamen of Price-Williams’s claims is that he suffered bodily injury as a result of an assault and battery and Kappa Sigma’s policy with Admiral contains the following exclusion: “This insurance does not apply to ‘bodily injury,’ ‘property damage,’ ‘personal injury,’ or ‘advertising injury’ arising out of any act of assault and/or battery by any insured or additional insured.” Accordingly, Admiral argues, the trial court erred in finding that coverage existed because it is undisputed that Price-Williams’s injuries arose out of an assault in which Dean and Baber participated.

In support of this argument, Admiral cites Gregory v. Western World Insurance Co., 481 So.2d 878 (Ala.1985), in which this Court affirmed a judgment declaring that a plaintiffs negligence and wantonness claims against a bar based on injuries he received after being assaulted by a patron at the bar were not covered by the bar’s insurance policy because the policy specifically excluded any claim alleging “ ‘bodily injury or property damage arising out of assault and battery ..., whether caused by or at the instigation or direction of the insured, his employees, patrons, or any other person.’ ” 481 So.2d at 878 (quoting insurance policy).

Price-Williams concedes that, based on the clear terms of the assault-and-battery exclusion in the policy, injuries attributable to Dean’s and Baber’s participation in the assault were not covered under the Admiral policy. However, he nevertheless argues that coverage exists for his claim because the Admiral policy excludes only coverage for bodily injury “arising out of any act of assault and/or battery by any insured or additional insured” and he was assaulted not only by Dean and Ba-ber — who were additional insureds under the Admiral policy — but also by Howard, who was not an insured or additional insured under the Admiral policy (emphasis added). Price-Williams argues that this limiting language in the assault-and-battery exclusion differentiates the Admiral policy from the broader assault-and-battery exclusion in the insurance policy at issue in Gregory—which excluded coverage for any claim alleging bodily injury arising out of assault and battery “ ‘whether caused by or at the instigation or direction of the insured, his employees, patrons, or any other 'person.’ 481 So.2d at 878 (quoting insurance policy (emphasis added)). Thus, Price-Williams argues, this case is distinguishable from Gregory.

However, Price-Williams’s argument that Howard’s involvement in the assault avoids the application of the assault-and-battery exclusion in the Admiral policy fails to recognize that his action against Admiral was brought pursuant to § 27-23-2 to seek payment of a judgment previously entered against Admiral insureds Dean and Barber in the underlying action. In Haston v. Transamerica Insurance Services, 662 So.2d 1138, 1139-40 (Ala.1995) (reversed on other grounds by Travelers Indemnity Co. of Connecticut v. Miller, 86 So.3d 338 (Ala.2011)), this Court stated:

“A claim under §§ 27-23-1 and -2[, Ala.Code 1975,] to apply the proceeds of a contract of insurance to satisfy a judgment has been described by this Court as follows:
.‘“Under Alabama law, the injured party acquires a vested interest (secondary) in the nature of a hypothecation of the insured’s rights under the policy.
“ ‘Once an injured party has recovered a judgment against the insured, the injured party may compel the insurer to pay the judgment. The injured party, however, can bring an action against the insurer only after he has recovered a judgment against the insured and only if the insured was covered against the loss or damage at the time the injured party’s right of action arose against the insured tort-feasor.’
“Maness v. Alabama Farm Bureau Mut. Casualty Ins. Co., 416 So.2d 979, 981-82 (Ala.1982). The injured party’s ‘vested interest’ is subject to the further qualification that ‘the terms of the policy imposing obligations on the insured are effective as against the injured party.’ George v. Employers’ Liab. Assurance Corp., 219 Ala. 307, 310, 122 So. 175, 177 (1929); see James & Hackworth v. Continental Casualty Co., 522 F.Supp. 785, 787 (N.D.Ala.1980). Thus, defenses to liability available to the insurer in an action brought by the insured would also be available to the insurer in an action brought pursuant to §§ 27-23-1 and -2 by the injured party. Employers Ins. Co. v. Crook, 276 Ala. 177, 183, 160 So.2d 463, 469-70 (1964); Employers Ins. Co. v. Johnston, 238 Ala. 26, 31, 189 So. 58, 62 (1939); see Fleming v. Pan American Fire & Casualty Co., 495 F.2d 535, 541 (5th Cir.1974); Southeastern Fire Ins. Co. v. Helton, 192 F.Supp. 441, 444-45 (S.D.Ala.1961).”

(Emphasis added.) Thus, in this § 27-23-2 action, Price-Williams effectively stands in the shoes of the insured tortfeasors Dean and Baber in making his claim, and he is entitled to recover from Admiral only to the extent of Dean’s and Baber’s coverage for the claims asserted against them. It is acknowledged by all parties that Dean and Baber did not have coverage for their act of assault because of the assault-and-battery exclusion in the Admiral commercial general-liability insurance policy, and that exclusion therefore prevents Price-Williams from recovering from Admiral as well.

The fact that Howard, a non-insured, also participated in the assault is ultimately of no effect. Price-Williams’s attempt to distinguish Gregory on the basis of the more broad assault-and-battery exclusion in that case misses the mark because Price-Williams is not attempting to require Admiral to fulfill a judgment entered against its insured Kappa Nu for injuries he received in an assault committed solely by a non-insured such as Howard; rather, he is attempting to require Admiral to fulfill a judgment entered against its insureds Dean and Baber for injuries he received as the result of an assault in which they participated. As we stated in Gregory: “[Ijnsurance companies are entitled to have their policy contracts enforced as written....” 481 So.2d at 881. The assault-and-battery exclusion in the Admiral policy excludes coverage for an act of assault committed by an insured such as Dean or Baber, and § 27-23-2 cannot be used to require Admiral to pay a judgment entered against an insured for injuries inflicted in a non-covered assault simply because a non-insured also participated in the assault.

Moreover, the assault-and-battery exclusion bars Price-Williams from recovering from Admiral on the basis of the negligence and wantonness claims he asserted against Dean and Baber based on their failure to implement a risk-management program for Kappa Nu even though that negligent or wanton conduct is not itself excluded from coverage. As the trial court stated in its final judgment, Dean’s and Baber’s negligent or wanton acts in failing to implement a risk-management program combined with the assault to result in “one indivisible injury” to Price-Williams. Stated another way, it is impossible. to allocate some portion of Price-Williams’s injuries and the award of damages based on those injuries to the failure to implement a risk-management program and some other portion to the assault. Compare Crews v. McLing, 38 So.3d 688, 694 (Ala.2009) (affirming the trial court’s judgment that there was not a “single indivisible injury” where expert witnesses were able to distinguish between damage to a mobile home attributable to the manufacturer and other damage attributable to the installer). All of Price-Williams’s injuries arose from and were the product of the assault — notwithstanding the fact that the negligent or wanton failure to implement a risk-management program may have been an additional proximate cause. See Springer v. Jefferson Cnty., 595 So.2d 1381, 1384 (Ala.1992) (recognizing that an injury may have several concurrent proximate causes).

The assault-and-battery exclusion in the Admiral policy states that there is no coverage for “ ‘bodily injury’ ... arising out of any act of assault and/or battery by any insured or additional insured.” All of Price-Williams’s injuries without question resulted from an act of assault in which additional insureds Dean and Baber participated. Therefore, regardless of the fact that there may have been a separate act that also contributed to Price-Williams’s injuries, there is no coverage in this case. The clear terms of the assault-and-battery exclusion must be enforced. See Auto-Owners Ins. Co. v. American Cent. Ins. Co., 739 So.2d 1078, 1081 (Ala.1999) (“If a policy provision is unambiguous, then a court must enforce the policy as it is written and cannot defeat express provisions, including exclusions from coverage.”).

IV.

Price-Williams sued Admiral pursuant to § 27-23-2 after obtaining a judgment against Dean and Baber, who he alleged were insured by Admiral under a policy Admiral had issued to Kappa Sigma, by virtue of their positions as officers of Kappa Nu. Following a bench trial, the trial court entered a judgment in favor of Price-Williams, obligating Admiral to fulfill the judgment entered against Dean and Baber in the underlying action. However, because the Admiral policy did not provide coverage to Dean and Baber for “any act of assault and/or battery” and because Price-Williams’s injuries undisputedly arose from an assault in which Dean and Baber participated, the trial court erred in holding Admiral responsible for the judgment entered against Dean and Baber in the underlying action. The trial court’s judgment is accordingly reversed and the cause remanded.

APPLICATION GRANTED; OPINION OF JANUARY 11, 2013, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.

BOLIN, PARKER, MAIN, WISE, and BRYAN, JJ., concur.

MURDOCK, J., concurs specially.

MOORE, C.J., and SHAW, J., concur in the result.

MURDOCK, Justice

(concurring specially).

I concur in the disposition by the main opinion of the issues addressed therein. I write separately to further explain my reasons for doing so and to comment on the context in which the issues addressed in the main opinion arise.

Preliminary Observations

Before explaining my agreement with the disposition by the main opinion of the issues addressed therein, I believe it important to note certain aspects of the context in which these issues are presented in this case. First, the formulation and implementation of a risk-management policy was something the national fraternity, Kappa Sigma, asked of the officers of local chapters in their capacity as agents of the national fraternity. Gabriel Dean and Charles Baber, in their capacities as president and vice president, respectively, of the local chapter, therefore, may have assumed a responsibility to the national fraternity to promulgate such a policy in order to aid the national fraternity in fulfilling the duties imposed by law upon it in relation to visitors to the fraternity house. We do not appear to be presented in this appeal with the question whether Dean and Baber, in their individual capacities, owed a personal duty to Ryan Price-Williams to promulgate and implement a risk-management policy. Obviously, they owed a personal duty to Price-Williams not to assault and batter him. A duty specifically to create and implement a risk-management policy for his benefit is a different issue, however. See generally Restatement (Third) of Agency: Duty to Principal; Duty to Third Party § 7.02 (2006) (“An agent’s breach of a duty owed to the principal is not an independent basis for the agent’s tort liability to a third party. An agent is subject to tort liability to a third party harmed by the agent’s conduct only when the agent’s conduct breaches a duty that the agent owes to the third party.”); cf. Commercial Union Ins. Co. v. DeShazo 845 So.2d 766, 770 (Ala.2002) (“Furthermore, the ‘inspection and audit’ clauses also indicate that any inspection was solely for the benefit of the defendants, and not, as described in the clauses, made ‘on behalf of or for the benefit of the named insured or others.’ ” (emphasis omitted)).

Second, the Court decides this case today on the basis of an “exclusionary clause” applicable to injuries resulting from an assault and battery. It may be noted as well that the “coverage” language in the policy applies in the first place only to “occurrences” or, as that term is defined, “accidents.” “[A] CGL policy is intended ‘ “to protect an insured from bearing financial responsibility for unexpected and accidental damage to people or property....”’” Town & Country Prop., L.L.C. v. Amerisure Ins. Co., 111 So.3d 699, 707 (Ala.2011) (quoting Essex Ins. Co. v. Holder, 372 Ark. 535, 539, 261 S.W.3d 456, 459 (2007), quoting in turn Nabholz Constr. Corp. v. St. Paul Fire & Marine Ins. Co., 354 F.Supp.2d 917, 923 (E.D.Ark.2005)). From the standpoint of the insureds, Dean and Baber (in whose shoes Price-Williams must stand in pursuing his direct-action claim against their insurer to recover the damages he has been awarded against them personally), the “damage” to Price-Williams was anything but “unexpected and accidental.” Dean and Baber intentionally, physically attacked and “battered” the victim, Price-Williams.

The result achieved in this case thus is in accord not only with the public policy in Alabama and elsewhere against indemnifying an insured for a loss resulting from his or her own intentional wrongdoing, but also with the fact that an “assault and battery” is an intentional act and therefore cannot properly be considered an “accident” within the meaning of liability policies:

“Insurance liability policies traditionally have been construed as not providing coverage for assaults and batteries committed by the insured, due to the public policy against indemnifying one for his or her own wrongdoing. Moreover, ‘occurrence’- or ‘accident’-based policies often have been interpreted to not encompass claims arising from assaults and batteries.”

Kimberly J. Winbush, Annotation, Validity, Construction and Effect of Assault and Battenj Exclusion in Liability Insurance Policy at Issue, 44 A.L.R.5th 91 (1996).

Issues Addressed in the Main Opinion

As to the issues addressed in the main opinion, the outcome in this case is governed by two facts. First, the plaintiff has a single, nonseverable claim. As the main opinion notes, Price-Williams’s claim is for bodily injury that cannot be divided and allocated between Dean’s and Baber’s alleged negligence in not promulgating and implementing a risk-management policy and their subsequent act of intentionally assaulting and battering Price-Williams. Nor can it be divided between those blows struck by Michael Howard and those struck by Dean and Baber during the assault. Price-Williams’s single, nonsevera-ble claim is either covered — in its entirety — by the Admiral insurance policy, or it is not. Second, regardless of whatever other acts or omissions by Dean and Baber or by a third party (i.e., Howard) may have facilitated or contributed to Price-Williams’s bodily injury, it is undeniable that this indivisible bodily injury did arise out of an assault and battery committed by Dean and Baber.

To be applied to these two facts is the following simple policy language: “This insurance does not apply to ‘bodily injury,’ ... [or] ‘personal injury’ ... arising out of any act of assault and/or battery by any insured or additional insured.” Courts in other states that have addressed the issue are essentially unanimous in understanding assault-and-battery exclusions to bar coverage when a loss arises from an assault and battery, regardless of whether there are other acts or “causes of action” that have contributed to that loss. Even more specifically, most of these cases stand for the proposition that liability-policy clauses that exclude losses arising from an assault and battery are effective to bar payments for any such loss, even when the only improper conduct of the insured is a purely negligent act or omission that simply made possible or facilitated the subsequent intentional assault or battery. A fortiori, this basic understanding applies in a case such as this in which it is the insured himself who commits the subsequent intentional assault and battery.

Admiral relies on such cases as Auto-Owners Insurance Co. v. American Central Insurance Co., 739 So.2d 1078 (Ala.1999), Horace Mann Insurance Co. v. D.A.C., 710 So.2d 1274 (Ala.Civ.App.1998), and Gregory v. Western World Insurance Co., 481 So.2d 878 (Ala.1985). Price-Williams argues that these cases are distinguishable because, he says,, they involve separate “claims” arising out of the same “act,” whereas in this case it is possible to distinguish between Price-Williams’s claim alleging an intentional assault and his claims alleging negligence because the claims are based on two separate and distinct acts. This argument misunderstands the rationale of Auto-Owners.

First, it appears that there were in fact two different acts by the insured in Auto-Owners. As the trial court in Auto-Owners found: “While the claims in the underlying case involve both intentional and unintentional acts, the defendant has provided case law supporting the nonsevera-bility of the claims.’ ” Id. at 1080 (emphasis added). The trial court did not say that the case involved alternative legal theories or causes of action in relation to the same act; it said that the complaint alleged “both intentional acts and unintentional acts.” The claims against the insured in Auto-Owners involved allegations that he allowed other fraternity members to commit intentional acts and that he himself committed such acts. This Court acknowledged that separate acts were involved:

“We also agree with the trial court that although the claims in the underlying action alleged both intentional and unintentional acts, those claims were not severable so as to obligate American Central to provide a defense and indemnity as to some claims but not as to others.”

Auto-Owners, 739 So.2d at 1082 (emphasis added).

That said, however, the underlying reason the claims in Auto-Owners were not severable is exactly the same as in the present case: there was only one set of indivisible injuries suffered by the victim of an assault. Those injuries cannot be severed and allocated to different causes, whether those “causes” are separate legal theories or “claims” relating to the same act or are actually separate acts that combined to cause the injuries. This simple fact was true in Auto-Owners, just as it is true in this case and in dozens of indistinguishable cases throughout the country.

Price-Williams also seeks to distinguish Gregory, invoking the fact that a third party, Howard, also landed some blows to Price-Williams during the assault. Price-Williams argues that the exclusion provision at issue applies only to injuries arising out of any act of assault and battery “by any insured or additional insured” and that Howard is not an “insured or additional insured.”

This attempt to distinguish Gregory ignores basic principles of tort law regarding joint and several liability of multiple tort-feasors contributing to a single, indivisible injury. If the separate acts of two or more tortfeasors combine to cause an indivisible injury, then all actors are jointly and severally liable for that entire injury. See Breland v. Rich, 69 So.3d 803, 825 (Ala.2011) (observing that ‘“where separate causes act contemporaneously to produce a given result, the causes of injury are concurrent within the rule making separate wrongdoers equally hable for the resultant injury1 ” (quoting Davison v. Mobile Infirmary, 456 So.2d 14, 26 (Ala.1984))); Franklin v. City of Athens, 938 So.2d 950, 953 (Ala.Civ.App.2005) (stating that “[t]he negligence of two or more tort-feasors may combine to result in a single, indivisible injury for which both tortfea-sors are liable”); and Holcim (US), Inc. v. Ohio Cas. Ins. Co., 38 So.3d 722, 729 (Ala.2009) (explaining that “[ujnder Alabama law governing joint and several liability, ‘[a] tort-feasor whose negligent act or acts proximately contribute in causing an injury may be held liable for the entire resulting loss’ ” (quoting Nelson Bros., Inc. v. Busby, 513 So.2d 1015, 1017 (Ala.1987) (emphasis omitted))).

In other words, it is the indivisible nature of an injury that is the focus of tort law in deciding that more than one actor or act is to be deemed responsible for a given loss. And it is this single, indivisible nature of the bodily injury in this case that is dispositive. Aside from whatever other combining cause may have been involved, the undeniable fact remains that the individual insureds assaulted and battered the victim. As the main opinion aptly notes, if portions of the resulting injury and related hospital bills could be attributed solely to the earlier negligent actions of Dean and Baber in not promulgating a risk-management policy or to the acts of Howard during the actual attack on Price-Williams (the latter being alleged by Price-Williams to have been made possible by the prior negligent actions of Dean and Baber), we would have a different ease. We do not have that case.

In Board of Education of East Syracuse-Minoa Central School District v. Continental Insurance Co., 198 A.D.2d 816, 604 N.Y.S.2d 399 (1993), the court applied policy language limiting “coverage” to “accidents” as well as an exclusion for bodily injury occurring during the course of the injured party’s employment. In that case, very much as in this one, the insured pinned its hopes for coverage upon certain wrongdoing on its part that, standing alone, might provide a basis for coverage. Those arguments were rejected with sound reasoning apparently embraced by this Court in Auto-Owners:

“The allegations against the School District ... do not constitute an ‘occurrence’ within the meaning of its general liability policy. An ‘occurrence’ is defined in the policy as an ‘accident.... ’ There is nothing accidental about the charges contained in the complaint [citations omitted]. Sexual harassment, like sexual abuse and child abuse, is intentional in nature [citations omitted]. While the complaint contains allegations that ‘the District knew or should have known of the complained of conduct’ and ‘failed to stop or prevent such conduct,’ those allegations do not change the gravamen of the complaint from one alleging intentional acts and violations of Federal and State statutes to one involving negligent conduct (see, e.g., New York Cas. Ins. Co. v. Ward, 139 A.D.2d 922, 527 N.Y.S.2d 913 [ (1988) ]).”

198 A.D.2d at 817, 604 N.Y.S.2d at 400.

Likewise in this case, the argument that Dean and Baber committed acts separate from the assault and battery that directly injured Price-Williams and that by those previous acts of negligence they “failed to stop or prevent” their own intentional assault and battery of the victim or the participation of a third party in that subsequent assault and battery must fail. In this regard, I find helpful the following explanation of Texas law, which I submit is no different than the law of Alabama and basically every other state:

“Texas courts ... when determining whether an exclusion in an insurance contract applies, examine the factual allegations showing the origin of the damage[] rather than the legal theories asserted by the plaintiff. Duncanville Diagnostic Ctr., Inc. v. Atlantic Lloyds Ins. Co. of Tex., 875 S.W.2d 788, 789 (Tex.App.-Eastland 1994, writ denied); ... Burlington Ins. Co. v. Mexican American Unity Council, Inc., 905 S.W.2d 359, 360 (Tex.App.-San Antonio 1995, no writ) (same). Where the legal claims asseried by the plaintiffs are not independent and mutually exclusive, but rather related to and dependant upon excluded conduct, the claims are not covered, even if asserted against an insured who did not himself engage in the prohibited conduct. Burlington Ins. Co., 905 S.W.2d at 362.”

Canutillo Indep. Sch. Dist. v. National Union Fire Ins. Co. of Pittsburgh, Pa., 99 F.3d 695, 703-04 (5th Cir.1996) (emphasis added).

The same is true here. The “legal claims asserted are not independent ..., but [are] related to and dependent upon excluded conduct,” i.e., the assault and battery. The only difference between this case and the Texas case quoted above (and most other cases addressing this issue) is that the exclusion is deemed to apply in the other cases to bar a claim against a negligent insured even though the actual assault and battery was not committed by that insured. Here, the actual assault and battery was committed by the same insureds who seek recovery.

      . Price-Williams named Dean and Baber as defendants based on their status as indispensable parties under § 27-23-2, Ala.Code 1975. Section 27-23-2 provides:
      "Upon the recovery of a final judgment against any person ... by any person ... for loss or damage on account of bodily injury, ... if the defendant in such action was insured against the loss or damage at the time when the right of action arose, the judgment creditor shall be entitled to have the insurance money provided for in the contract of insurance between the insurer and the defendant applied to the satisfaction of the judgment, and if the judgment is not satisfied within 30 days after the date when it is entered, the judgment creditor may proceed against the defendant and the insurer to reach and apply the insurance money to the satisfaction of the judgment.”

      . Dean and Baber were, respectively, president and vice president of Kappa Nu at the time of the assault. Neither Price-Williams nor Howard were members of Kappa Nu.

      . In the weeks after the assault, Dean, Baber, and Howard were arrested and charged with second-degree assault. Approximately four months later, Dean and Baber were expelled from Kappa Sigma because their involvement in the assault violated the Kappa Sigma code of conduct.

      . See generally Black's Law Dictionary 1482 (9th ed.2009) (defining "self-insured retention” as "[tjhe amount of an otherwise-covered loss that is not covered by an insurance policy and that usufally] must be paid before the insurer will pay benefits”).

      . Admiral assumed responsibility for the investigation and defense of Price-Williams’s claims in approximately July 2008 after Kappa Sigma’s costs related to that claim exceeded the amount set forth in the self-insured retention clause in the Admiral policy.

      . Apparently, the trial court had set aside the default judgment previously entered against the three individual defendants,

      . Baber filed a cross-claim against Admiral seeking a ruling that Admiral was required to indemnify him for the judgment entered against him in the underlying action. The trial court decided this claim in favor of Admiral, and Baber has not appealed that judgment.

      . Counsel for Admiral was contacted by the trial court on the morning of the trial.

      . The trial court agreed with Price-Williams’s argument in this regard, stating in its final judgment:
      "The assault and battery exclusion is unambiguous and clearly excludes coverage for any bodily injury suffered by [Price-Williams] caused by Dean and Baber’s conduct of assaulting him. This exclusion, however, is self-limiting, as it applies only to any damage[] due to the assault and battery by Dean and Baber, not any injuries caused by Michael Howard (since Howard was not an insured under the policy). Both Admiral and [Price-Williams] agree that three individuals were involved in assaulting [Price-Williams]: Dean, Baber, and Howard. Although Dean and Baber’s conduct of assault and battery is excluded under the policy, because Howard was not an insured under the policy, this exclusionary clause does not apply to the damage[] caused by Howard’s conduct.”

      . This Court further explained the concept of an indivisible injury in State Farm Fire & Casualty Co. v. Slade, 747 So.2d 293 (Ala.1999). In Slade, the plaintiffs sued a number of contractors involved in the construction of their house, as well as State Farm, which had issued a homeowners’ insurance policy on that house, after foundation problems became apparent. This Court concluded that these defendants had not combined to cause one indivisible injury, stating:
      "In the present case, there was no ‘single, indivisible injury’ caused by the construction defendants and State Farm. In fact, there were two injuries flowing from two separate allegedly tortious acts: (1) damage caused by the alleged negligent and/or wanton construction that was done by the construction defendants and (2) damage caused by the alleged bad-faith refusal to pay an insurance claim. Also, the injuries the [plaintiffs] claim to have suffered were not indivisible. Moreover, the acts of the two groups of defendants did not combine to cause any one injury. State Farm took no part in the construction of the home, and the construction defendants took no part in the refusal to pay an insurance claim.”
      747 So.2d at 325. In the present case, two separate tortious acts have also been alleged; however, unlike Slade, there is no basis for dividing the plaintiff's injuries between those two acts, and the same individuals responsible for one act (the negligent or wanton act) also participated in the second act (the assault and battery).

      . The policy at issue also contains an exclusion for " 'bodily injury' or 'property damage' expected or intended from the standpoint of the insured,” which would appear to be sufficient in and of itself to require a judgment in Admiral’s favor.

      . The above-cited annotation further explains that, notwithstanding the above-noted principles regarding the construction of "coverage" clauses,
      "many liability insurance contracts, particularly those issued to bars, restaurants, and similar establishments include specific assault and battery exclusions, aimed at precluding coverage of damages caused by these types of torts. These exclusions have spawned a wide variety of challenges, both to their validity and to their applicability to particular conduct and individuals. For example, in Liquor Liability Joint Underwriting Ass'n v. Hermitage Ins. Co. (1995) 419 Mass. 316, 644 N.E.2d 964, 44 A.L.R.5th 787, the court declared that an assault victim’s claims of negligence against the insured bar ... did not fall within an assault and battery exclusion in that tavern’s insurance policy. However, most other courts have disagreed, finding that all claims, whether rooted in the actual assault and battery, or couched in negligence language, that arise from an assault and battery fall within the parameters of an assault and battery exclusion."

      Winbush, 44 A.L.R.5th 91. The annotation includes a cumulative supplement listing 44 cases from 16 different jurisdictions it describes as holding “either implicitly or explicitly ... that assault and battery exclusions encompassed claims alleging that the insured’s negligence caused the damages in litigation.”
      In contrast, the annotation lists a total of eight cases it introduces with the following statement: "Assault and battery exclusions in the following cases were ruled to not relieve insurance companies from their duties to defend or indemnify insureds for claims arising from their assault-and-battery-related negligence.” Of these eight cases, however, all but two are cases from jurisdictions listed in the previous section that lists for those jurisdictions more recent cases embracing the majority rule or that are distinguishable. The remaining two include the one case cited in the quoted passage above, Liquor Liability Joint Underwriting Ass’n of Massachusetts v. Hermitage Insurance Co., 419 Mass. 316, 644 N.E.2d 964 (1995), and Mount Vernon Fire Insurance Co. v. Creative Housing Ltd., 70 F.3d 720 (2d Cir.1995). The former is probably distinguishable based on the court’s interpretation of the clause at issue; the latter applies the law of the State of New York, a state that also has produced cases embracing the majority rule.

      . Moreover, each of the cases cited in Auto-Owners in support of the conclusion that the claims there were nonseverable involved claims of negligent supervision or other non-intentional acts by an employer and separate intentional acts by an employee. See id., citing Commercial Union Ins. Cos. v. Sky, Inc., 810 F.Supp. 249, 255 (W.D.Ark.1992); Old Republic Ins. Co. v. Comprehensive Health Care Assocs., 786 F.Supp. 629 (N.D.Tex.1992); and Board of Educ. v. Continental Ins. Co., 198 A.D.2d 816, 604 N.Y.S.2d 399 (1993).


author: WISE, Justice. SHAW, Justice

text:
    Johnnie Mae SAWYER, as daughter and administrator of the estate of Arthur Waters, deceased v. Sylvia COLLINS et al.
    1120301.
    Supreme Court of Alabama.
    May 24, 2013.
    J. Thomas Perry, Jr., of Manley, Trae-ger, Perry & Stapp, Demopolis; and Bruce Boynton of Bruce Carver Boynton, L.L.C., Selma, for plaintiff.
    Kendrick E. Webb and Fred L. Clements, Jr., of Webb & Eley, P.C., Montgomery, for defendants.
   WISE, Justice.

This Court initially accepted the question certified to it by the United States District Court for the Southern District of Alabama; however, we now decline to answer the question.

QUESTION DECLINED.

MOORE, C.J., and STUART, PARKER, MURDOCK, MAIN, and BRYAN, JJ., concur.

BOLIN and SHAW, JJ., dissent.

SHAW, Justice

(dissenting).

As discussed below, the United States District Court for the Southern District of Alabama, Northern Division (“the district court”), has certified to this Court a question pursuant to Rule 18, Ala. R.App. P. I dissent from this Court’s decision to decline to answer the question.

The district court explained the facts of this case as follows in its certification to this Court:

“Plaintiff Johnnie Mae Sawyer is the personal representative of the Estate of Arthur Waters, a deceased Alabama prisoner. Defendant James Hood was the Perry County Sheriff during' the time of Waters’ incarceration; Defendants Sylvia Collins and Bobby Sanders were jailers at the Perry County Jail during that period. Waters was convicted of assault and surrendered at 2:00 p.m. on June 20, 2011, to the Perry County Jail. Collins and Sanders were on duly. At surrender, Waters complained that he did not feel well. He was placed in isolation until the next day. At this point, he told the jailers that he felt worse and was in pain. He also complained that he was nauseated, needed to vomit, had diarrhea, a fever, and was having trouble breathing. Waters was given a mat so he could lie on the floor in the general population cell. He soiled himself and the mat with vomit and feces. During this time, he asked for medical attention from the jailers Collins and Sanders. Other inmates also informed Collins and Sanders about Waters’ pain and symptoms and requested medical care for him. He was given one dose of Ibuprofen. Collins and Sanders did not contact Sheriff Hood regarding Waters’ condition. Collins’ and Sanders’ shift ended at 4:00 p.m.
“The jailers on the next shift gave Waters a [pain reliever and a soft drink] and called Sheriff Hood. Hood instructed the jailers to have Waters complete a medical form to see a doctor the next day. The jailer told the Sheriff that Waters was not capable of completing the form, but Hood reiterated his instructions. The jailers called Hood twice more during the next three hours to ask for medical attention [for Waters], but he denied their request. At about 8:00 p.m., a jailer gave Waters [an over-the-counter gastro-intestinal medication] and called Sheriff Hood for the fourth time. Hood denied the request to provide Waters with additional medical attention. At about the same time, other inmates had lifted Waters onto a toilet. Waters began to shake and then died. The cause of death was pneumonia compounded by tuberculosis. (Doc. 37, Doc. 61)
“On January 20, 2012, Plaintiff Johnnie Mae Sawyer filed suit asserting that all of the Defendants, through deliberate indifference, failed to provide medical treatment as required in the Eighth Amendment. Plaintiff has also asserted a claim of Alabama common law negligence against Defendants Collins and Sanders. As to the state law claim, Collins and Sanders assert immunity pursuant to Alabama Code § 14-6-1.”

Alabama Code 1975, § 14-6-1, provides:

“The sheriff has the legal custody and charge of the jail in his or her county and all prisoners committed thereto, except in cases otherwise provided by law. The sheriff may employ persons to carry out his or her duty to operate the jail and supervise the inmates housed therein for whose acts he or she is civilly responsible. Persons so employed by the sheriff shall be acting for and under the direction and supervision of the sheriff and shall be entitled to the same immunities and legal protections granted to the sheriff under the general laws and the Constitution of Alabama of 1901, as long as such persons are acting within the line and scope of their duties and are acting in compliance with the law.”

(Emphasis added.)

The issue presented to the district court is whether Sylvia Collins and Bobby Sanders (“the jailer-defendants”) are immune from Johnnie Mae Sawyer’s state-law claims under this Code section. Specifically, the parties dispute whether the jailer-defendants were “acting in compliance with the law.” The district court noted that the phrase “the law” had not been defined by an Alabama appellate court.

In their briefs to this Court, the parties offer two dramatically different interpretations of the phrase “the law.” The plaintiff, Sawyer, seems to take the position that “the law” includes all statutes, both criminal and civil, and constitutional provisions (such as the Eighth Amendment to the United States Constitution) and any policies or procedures adopted by Sheriff Hood. The jailer-defendants take the narrower view that “the law” refers to criminal laws. Apparently in response to these dramatically differing interpretations, the district court, pursuant to Rule 18, Ala. R.App. P., certified to this Court the following question:

“Alabama Code § 14-6-1 provides that persons, such as jail employees, who act or undertake duties at the direction and supervision of the sheriff are immune from state law claims to the same extent as a Sheriff, ‘as long as he or she is acting within the line and scope of his or her duties and is acting in compliance with the law.’ The first requirement — acting within the line and scope of their duties — is the same requirement for a sheriff to receive immunity. However, there is no requirement that a sheriff act ‘in compliance with the law5 in order to receive immunity. How should this court interpret ‘acting in compliance with the law5 in order to not render the grant of immunity meaningless or the phrase superfluous? Specifically, what ‘law’ is encompassed by the requirement that a jail employee act in compliance with the law?”

Rule 18(a), Ala. R.App. P., states:

“When it shall appear to a court of the United States that there are involved in any proceeding before it questions or propositions of law of this State which are determinative of said cause and that there are no clear controlling precedents in the decisions of the Supreme Court of this State, such federal court may certify such questions or propositions of law of this State to the Supreme Court of Alabama for instructions concerning such questions or propositions of state law, which certified question the Supreme Court of this State, by written opinion, may answer.”

I believe that the question certified is clear, that no other facts are necessary for this Court to answer the question, and that our answer would be determinative of this case.

It seems axiomatic that both criminal statutes and civil statutes, as well as constitutional precepts, are “the law” for purposes of § 14-6-1. It is apparent that the district court seeks to know whether, as Sawyer suggests, policies and procedures for handling sick inmates propounded by a sheriff are, for purposes of § 14-6-1, “law” that must be followed by jailers acting for and under the direction and supervision of the sheriff. The answer to that query has not been decided by an Alabama court, and it is clearly an issue an Alabama court should be the first to decide. To answer this question, this Court does not need to know the content of any policies or procedures Sheriff Hood has issued. And the principles for determining whether any such policies and procedures have the force of law or legal effect are settled.

In Stewart Title Guaranty Co. v. Shelby Realty Holdings, LLC, 83 So.3d 469 (Ala.2011), this Court declined to answer a question certified by a federal court because the question was not, as required by Rule 18, “determinative of said cause.” Specifically, we were called upon to decide the proper valuation method to be used in calculating damages regarding a certain insurance claim. The question was presented in terms of this Court’s adopting one of two valuation methods discussed by other cases in other states.

We declined to answer the question because the text of the insurance policy, which was not addressed by the certified question or by the parties, appeared possibly to provide its own valuation method. The certifying court, we decided, might ultimately resort to that method instead of any method provided in our answer to the certified question. In other words, it was possible that answering the question as posed would result in this Court’s selecting a valuation method for use in Alabama that might, under the facts of that case, be superseded by the insurance policy and not utilized by the certifying court. Citing the proposition that the question must be determinative of the cause, we held:

“Furthermore, and perhaps more importantly, because the district court might determine that the valuation issue can be properly and fairly resolved by looking to the specific language of the policy, answering the certified question would necessitate our fashioning a broad rule with the possibility that it would have no application to the particular facts presented. That possibility also renders us unable to answer the question. See Palmore v. First Unum, 841 So.2d 233, 235 (Ala.2002) (‘In order for this Court to consider a certified question from a federal court, the question must be, among other things, “determinative of [the underlying] cause.” ’ (quoting Rule 18(a), Ala. R.App. P.)).”

I do not see that this rationale for declining to answer the question is applicable in this case: if this Court were to answer the question, the district court would apply the answer to the question, which could determine the issue before it.

We also declined to answer the question in Stewart Title because, if the insurance policy provided the proper valuation method, we did not need to interpret the policy for the federal court, because

“[cjonstruing an insurance policy treads no new ground under Alabama law, and precedent determinative of such an analysis is well settled. Public Bldg. Auth. of Huntsville v. St. Paul Fire & Marine Ins. Co., 80 So.3d 171, 180 (Ala.2010) (‘[T]he interpretation of a contract does not present a novel legal issue. Rather, the rules of contract construction and interpretation are well established in Alabama....’).”

If an interpretation of the policy would have answered the question in Stewart Title, then there was no “question or proposition of law” that was unclear; instead, all that was required was the application of our clear law on interpreting the text of insurance policies. That is not the situation in the instant matter before us, because the law is not clear: the term “law” as it is used in § 14-6-1 has yet to be defined. We are not called upon to apply law to facts, as we were in Stewart Title. Instead, we are called upon to explain the law. I would answer the question certified.


author: PARKER, Justice. MURDOCK, Justice

text:
    Ex parte RIVERFRONT, LLC. (In re Fish Market Restaurants, Inc., and George Sarris v. Riverfront, LLC).
    1111239.
    Supreme Court of Alabama.
    May 31, 2013.

      Wayne L. Williams of Wayne L. Williams & Associates, LLC, Tuscaloosa; and James E. Fleenor, Jr., of Fleenor & Green LLP, Tuscaloosa, for petitioner.
    Robert J. Hayes of Hayes, Jackson & McKinney, LLC, Birmingham, for respondents.
   PARKER, Justice.

Riverfront, LLC, petitions this Court for a writ of mandamus directing the Etowah Circuit Court (“the circuit court”) to vacate its order denying Riverfront’s motion to enforce a forum-selection clause in a lease agreement between it and Fish Market Restaurants, Inc., and George Sarris (hereinafter collectively referred to as “Fish Market”) and to direct the circuit court either to dismiss the action filed against it by Fish Market or to transfer the action to the Tuscaloosa Circuit Court. We grant the petition and issue the writ.

Facts and Procedural History

Riverfront owns real property located in Gadsden (“the property”). In late 2006, Riverfront and Fish Market entered into negotiations concerning the property, which Fish Market sought to lease from Riverfront. In negotiating the terms of the lease, Fish Market made handwritten changes to a copy of the lease provided to it dated January 8, 2007 (“the proposed lease”). Section 3.3.1 of the proposed lease, entitled “Jurisdiction and Venue,” stated:

“Regardless of any place to which any of the parties may move and maintain legal domicile or suits at any time, each agrees, to the full extent permitted by law, that any action against them based on this Lease or any document or instrument delivered in accordance herewith shall be instituted in the Circuit Court of Tuscaloosa County, Alabama, and, to the full extent permitted by law, each party irrevocably consents to the jurisdiction of such court and waives any and all jurisdictional defenses that each may have to the institution of such an action in such court.”

The proposed lease contains handwritten additions and strike-throughs to this section. The word “Tuscaloosa” of the above provision was struck through, and the words “any proper” were handwritten in its place. Also, the word “in” was inserted into the above provision of the proposed lease following the word “County.” With the handwritten changes, the above provision of the proposed lease reads, in pertinent part, as follows: “any action ... shall be instituted in the Circuit Court of any proper County, in Alabama.” The proposed lease also contained handwritten changes to Sections 1.1, 1.2, 1.10.1, and 1.11. However, the proposed lease was not signed by any representative of Riverfront..

A lease dated January 18, 2007 (“the lease”), was also admitted into evidence. The lease is signed by Sanjay Singh, as president of Riverfront; by Sarris, both individually and as president of Fish Market; and by Robert J. Hayes, Sarris’s attorney. Each signature is notarized. The desired handwritten changes to the proposed lease by Fish Market were not incorporated into Section 3.3.1 of the lease, entitled “Jurisdiction and Venue.” That section in the lease reads:

“Regardless of any place to which any of the parties may move and maintain legal domicile or suits at any time, each agrees, to the full extent permitted by law, that any action against them based on this Lease or any document or instrument delivered in accordance herewith shall be instituted in the Circuit Court of Tuscaloosa County, Alabama, and, to the full extent permitted by law, each party irrevocably consents to the jurisdiction of such court and waives any and all jurisdictional defenses that each may have to the institution of such an action in such court.”

(We will refer to Section 3.3.1 as “the forum-selection clause”) The lease did incorporate the handwritten changes made by Fish Market to Sections 1.2 and 1.11 of the proposed lease. The lease also contains the following clause:

“Section 3.13 Entire Agreement. This Lease constitutes the entire understanding and agreement among the parties concerning the indemnification obligations of the parties and related matters discussed herein, and supersedes any and all prior negotiations, understandings or agreements in regard thereto.”

On February 27, 2012, Fish Market filed a declaratory-judgment action against Riverfront in the circuit court. In its initial pleading, Fish Market identified the property and noted that “the land and premises and items of property located therein are the basis of some of the issues involved.” Fish Market also requested that the circuit court

“enter an [o]rder identifying the rights, duties and obligations of the parties, under that certain lease agreement entered into between the parties on or about the 8th of January 2007 while taking into consideration all of the facts and circumstances met and faced throughout the terms of the lease by [Fish Market].”

In response, on March 26, 2012, Riverfront filed a motion to dismiss the declaratory-judgment action on the basis of improper venue or, in the alternative, to transfer the case to the Tuscaloosa Circuit Court, pursuant to the forum-selection clause. In its motion, Riverfront alleged that the forum-selection clause required that any lawsuit arising under the lease be filed in the Tuscaloosa Circuit Court. Fish Market did not file a written response.

The circuit court held a hearing on Riverfront’s motion on May 1, 2012. At the hearing, the lease was admitted into evidence, and Sarris confirmed that his signature was on the lease. Even though he confirmed that it was his signature on the lease and that his signature had been notarized, Sarris testified that the lease was not “the document [he] signed.” Sarris also agreed with his attorney’s statement that Sarris had never “had any opportunity whatsoever to look at [the lease] at any time.” The proposed lease was also admitted into evidence. Fish Market presented no oral argument opposing Riverfront’s motion to dismiss or to transfer the action on the basis that venue in the Etowah Circuit Court was improper.

On May 14, 2012, the circuit court denied Riverfront’s motion without stating its reasoning for doing so. Riverfront then filed this petition for a writ of mandamus.

Standard of Review

In Ex parte CTB, Inc., 782 So.2d 188, 190 (Ala.2000), we noted that forum-selection clauses implicate venue and that the “ ‘proper method for obtaining review of a denial of a motion for a change of venue in a civil action is to petition for the writ of mandamus.’ ” (Quoting Ex parte National Sec. Ins. Co., 727 So.2d 788, 789 (Ala.1998).) See also Ex parte Bad Toys Holdings, Inc., 958 So.2d 852, 857 n. 3 (Ala.2006) (“[Although venue may sometimes be appropriate in multiple forums, parties may, via a forum-selection clause, contract in advance to restrict venue to a single forum.”). Thus, in reviewing the trial court’s denial of a party’s attempt to enforce an “outbound” forum-selection clause in Ex parte CTB, this Court applied our well settled principles for considering a petition for a writ of mandamus:

“Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (8) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.”

782 So.2d at 190 (quoting Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995)). Further, a trial court’s ruling on the question of enforcing a forum-selection clause is reviewed to determine whether in enforcing or refusing to enforce the forum-selection clause the trial court exceeded its discretion. Ex parte D.M. White Constr. Co., 806 So.2d 370, 372 (Ala.2001).

Discussion

In its petition, Riverfront argues that the circuit court exceeded its discretion by refusing to enforce the forum-selection clause and by denying Riverfront’s motion to dismiss or, in the alternative, to transfer this action on the basis that venue in the Etowah Circuit Court was improper. Specifically, Riverfront argues that the forum-selection clause should be enforced because, it argues, enforcement of the clause is not unfair in that the lease was not “affected by fraud, undue influence, or overweening bargaining power,” and it is not unreasonable because, Riverfront argues, the selected forum would not be “seriously inconvenient”, for the parties. See Professional Ins. Corp. v. Sutherland, 700 So.2d 347, 352 (Ala.1997).

“[A] ... forum-selection clause is enforceable unless the challenging party can establish that enforcement of the clause would be unfair on the basis that the contract ‘ “[w]as affected by fraud, undue influence, or overweening bargaining power or ... enforcement would be unreasonable on the basis that the [selected] forum would be seriously inconvenient.” ’ The burden on the challenging party is difficult to meet. Ex parte CTB,[ Inc., 782 So.2d 188 (Ala.2000) ]. See also Professional Ins. Corp. v. Sutherland, 700 So.2d 347, 351 (Ala.1997).”

D.M. White, 806 So.2d at 372.

Riverfront states that Fish Market “do[es] not appear to allege that enforcement of the forum-selection clause would be unfair due to fraud, undue influence, or overweening bargaining power.” In its response, Fish Market does not disagree with Riverfront’s characterization of its argument that Fish Market is not alleging that enforcement of the forum-selection clause would be unfair on the basis of fraud, undue influence, or overweening bargaining power. Instead, Fish Market appears to be attacking the formation of the lease itself. Fish Market argues that “[t]here was not a clear meeting of the minds between the parties to the lease in question.” In support of its argument, Fish Market relies upon Ray v. Alabama Central Credit Union, 472 So.2d 1012, 1014 (Ala.1985), in which this Court stated:

“The Court addressed the issue of what constitutes an accord and satisfaction in the case of Craft v. Standard Acc. Ins. Co., 220 Ala. 6, 123 So. 271 (1929), stating:
“ ‘The discharge of claims by way of accord and satisfaction is dependent upon contract express or implied; and it follows that the essentials necessary to valid contracts generally must be present in a contract of accord and satisfaction. Therefore there must be (1) a proper subject-matter, (2) competent parties, (3) an assent or meeting of the minds of the parties, and (4) a consideration. 1 R.C.L. 178, § 3; Reliance Life Ins. Co. v. Garth, 192 Ala. 91, 68 So. 871 [ (1915) ]; Dreyfus Bros. v. Corn Products Co., 204 Ala. 593, 86 So. 386 [ (1920) ]. [Emphasis added.]’
220 Ala. at 9, 123 So. at 273.”

(Initial emphasis added.) This case, however, does not involve an accord and satisfaction, but a lease, which is treated as a contract under our precedent. See Bowdoin Square, L.L.C. v. Winn-Dixie Montgomery, Inc., 873 So.2d 1091, 1098 (Ala.2003) (“It is well settled that lease agreements are contracts and that the general principles of contract construction apply in ascertaining the scope and meaning of a lease agreement.”). The only authority relied upon by Fish Market for its argument that there was no clear meeting of the minds between the parties to the lease is authority concerning an accord and satisfaction.

In Ex parte Grant, 711 So.2d 464, 465 (Ala.1997), this Court held that “ ‘[t]he requisite elements of [a contract] include: an offer and an acceptance, consideration, and mutual assent to terms essential to the formation of a contract.’ Strength v. Alabama Dep’t of Finance, Div. of Risk Mgmt., 622 So.2d 1283, 1289 (Ala.1993); Steiger v. Huntsville City Bd. of Ed., 653 So.2d 975, 978 (Ala.1995).” Further, “Ms-sent must be manifested by something. Ordinarily, it is manifested by a signature.” Southern Energy Homes, Inc. v. Hennis, 776 So.2d 105, 108 (Ala.2000) (citing Commercial Credit Corp. v. Leggett, 744 So.2d 890, 895-96 (Ala.1999); Premiere Chevrolet, Inc. v. Headrick, 748 So.2d 891, 893 (Ala.1999); and Crown Pontiac, Inc. v. McCarrell, 695 So.2d 615, 618 (Ala.1997)). The elements germane to the formation of a contract, at issue here, are different than the elements germane to an accord and satisfaction. Therefore, Fish Market’s argument under aceord-and-sat-isfaction precedent is not persuasive.

Moreover, the lease, which is signed by all parties, was placed into evidence; Riverfront thereby satisfied the elements set forth in Grant, supra. The only evidence Fish Market directs this Court’s attention to indicating that Riverfront and Fish Market did not mutually assent to the terms essential to the formation of the lease is the following self-serving testimony of Sarris:

“[Fish Market’s counsel:] Okay. Did you ever receive any signed copy from ... Singh—
“[Sarris:] No.
“[Fish Market’s counsel:] of this lease?
“[Sarris:] No.
“[Fish Market’s counsel:] Did you ever receive an original copy of a lease—
“[Sarris:] Never.
“[Fish Market’s counsel:] — from ... Singh?
“[Sarris:] Never.
“[Fish Market’s counsel:] Did he ever tell you anything about giving you an original copy?
“[Sarris:] Yeah. He say, you know, it was — you know we have to start all our things and architects and all that. He said just take my word, you know, just trust me, I’ll send it to you.”

On cross-examination, Sarris admitted that his signature was on the lease and that his signature on the lease had been notarized, but he persisted that “that’s not a — the document [he] signed.” Further, the notary’s certification of Sarris’s signature on the lease states:

“I, the undersigned, a Notary Public of the State and County aforesaid, hereby certify that George Sarris, individually and as President of the Fish Market Rest[a]urants[,] Inc., and Robert J. Hayes, individually is signed to the foregoing instrument and who are known to me, acknowledged before me on this day that, being informed of the contents of the foregoing instrument, he, as such officer and with full authority, executed the same voluntarily on the day the same bears date for and as an act of said corporation.”

(Emphasis added; capitalization omitted.) Fish Market has not directed this Court’s attention to any authority indicating that the self-serving testimony of an undisputed signatory to a contract stating simply that he never received an original copy of the contract demonstrates that the parties had not mutually assented to the terms of the contract.

Riverfront then argues that Fish Market has failed to demonstrate that the forum-selection clause is unreasonable because Fish Market did not present any evidence or argument in the circuit court concerning whether the Tuscaloosa Circuit Court would be a “seriously inconvenient” forum.

“Tn order to demonstrate that the chosen forum is seriously inconvenient, the party challenging the clause must show that a trial in that forum would be so gravely difficult and inconvenient that the challenging party would effectively be deprived of his day in court. Ex parte Northern Capital Res. Corp., 751 So.2d [12] at 15 [ (Ala.1999) ].
“ ‘ “When an agreement includes a clearly stated forum-selection clause, a party claiming that clause is unreasonable and therefore invalid will be required to make a clear showing of unreasonableness. In determining whether such a clause is unreasonable, a court should consider these five factors: (1) Are the parties business entities or businesspersons? (2) What is the subject matter of the contract? (3) Does the chosen forum have any inherent advantages? (4) Should the parties have been able to understand the agreement as it was written? (5) Have extraordinary facts arisen since the agreement was entered that would make the chosen forum seriously inconvenient? We state these items not as requirements, but merely as factors that, considered together, should in a particular case give a clear indication whether the chosen forum is reasonable.”
‘Ex parte Northern Capital Res. Corp., 751 So.2d at 14.’
“Ex parte Rymer, 860 So.2d 339, 342-43 (Ala.2003).”

Ex parte Soprema, Inc., 949 So.2d 907, 913 (Ala.2006).

Riverfront argues that each of the five factors set forth in Ex parte Northern Capital Resource Corp., 751 So.2d 12, 14 (Ala.1999), are met in this case. It argues in its petition that

“(1) the parties are sophisticated business entities and Fish Market was represented throughout by Attorney Hayes, a licensed Alabama attorney who is also a signatory on the Lease; (2) the subject matter of the contract is a commercial lease between sophisticated, experienced parties; (3) Tuscaloosa County, the chosen forum, is advantageous in that Riverfront’s principle [sic] business office is in Tuscaloosa County, it is a proper venue under the Alabama venue statutes (Ala.Code [1975,] § 6-3-7(a)(2)) and it is convenient to all of the parties; (4) the parties, particularly given Attorney Hayes’s participation, were capable of understanding the terms of the forum-selection clause to the point of suggesting revisions to the clause that were ultimately rejected; and (5) no facts have arisen that would render Tuscaloosa County a seriously inconvenient venue.”

Fish Market has not presented any argument in opposition to Riverfront’s argument. We agree with Riverfront.

We conclude that Fish Market, the party opposing enforcement of the forum-selection clause, failed to present any evidence below or any argument before this Court ‘“that enforcement of the [forum-selection] clause would be unfair on the basis that the [lease] “ ‘[w]as affected by fraud, undue influence, or overweening bargaining power or ... [that] enforcement would be unreasonable on the basis that the selected forum [the Tuscaloosa Circuit Court] would be seriously inconvenient.’ ” ’ ” D.M. White, 806 So.2d at 372 (quoting other cases).

Fish Market next argues that because, it says, the forum-selection clause attempts to oust “all courts, wherever situated, from having the power to hear and dispose of any case involving a dispute between Riverfront and Fish Market except for one ... court,” the forum-selection clause is against public policy. It has long been established that forum-selection clauses are not against Alabama public policy, and the specific reasoning asserted by Fish Market in its public-policy argument has also been rejected. See Sutherland, supra; see also Ex parte Rymer, 860 So.2d 339, 341 (Ala.2003) (relying upon Sutherland); and O’Brien Eng’g Co. v. Continental Machs., Inc., 738 So.2d 844, 846-47 (Ala.1999) (same). Further, in Ex parte Spencer, 111 So.3d 713, 717 (Ala.2012), this Court noted:

“It is a well established principle of Alabama law that ‘[p]arties are free to contract as they will, provided they contract within the law.’ Perkins v. Skates, 220 Ala. 216, 218, 124 So. 514, 515 (1929). Forum-selection clauses are not against public policy in Alabama, and parties are free to contractually agree to a specified forum in which all litigation is to be litigated. See Brown v. Alabama Chem. Co., 207 Ala. 215, 216, 92 So. 260, 260-61 (1922) (recognizing the validity of forum-selection clauses).”

Lastly, Fish Market argues that “Riverfront is not entitled to relief as the petitioner has failed to file an answer to Fish Market’s [b]ill for [declaratory [j]udgment.” Fish Market argues that, under Rule 12(a), Ala. R. Civ. P., Riverfront was required to file an answer to Fish Market’s complaint within 10 days of the circuit court’s denial of Riverfront’s motion to dismiss or, in the alternative, to transfer this action on the basis that venue in the Etowah Circuit Court was improper. Fish Market filed in the circuit court a motion for a default judgment on July 2, 2012, based on Riverfront’s failure to file an answer to Fish Market’s complaint. Riverfront filed a motion to stay the proceedings in the circuit court on July 3, 2012, pending this Court’s disposition of Riverfront’s mandamus petition. Riverfront states in its reply brief that the circuit court granted Riverfront’s motion to stay; however, the parties have presented no attachments indicating whether the circuit court granted either Fish Market’s motion for a default judgment or Riverfront’s motion for a stay of the proceedings. Regardless, Fish Market has not argued that the case has been adjudicated below and has directed this Court to no authority, other then general citations to the Alabama Rules of Civil Procedure, supporting its argument. Therefore, we will not consider the argument. See Rule 28(a)(10), Ala. R. Civ. P.; see also University of South Alabama v. Progressive Ins. Co., 904 So.2d 1242, 1247-48 (Ala.2004).

Conclusion

Riverfront has established that it has a clear legal right to the enforcement of the forum-selection clause in the lease because Fish Market has failed to establish that enforcement of the clause would be unfair or unreasonable. The circuit court exceeded the scope of its discretion in denying Riverfront’s motion to dismiss or, in the alternative, to transfer the case to the Tuscaloosa Circuit Court. We direct the circuit court either to dismiss this cause, without prejudice, pursuant to Rule 12(b)(3), Ala. R. Civ. P., or to transfer the cause to the Tuscaloosa Circuit Court, the forum agreed to in the lease.

PETITION GRANTED; WRIT ISSUED.

STUART, SHAW, and BRYAN, JJ„ concur.

MURDOCK, J., concurs in the result.

MURDOCK, Justice

(concurring in the result).

I concur in issuing the writ of mandamus in this case. I respectfully decline, however, to join the discussion in note 2 and the accompanying text of the main opinion as to whether the clause in this case is an “ ‘ “outbound” forum selection clause’ ” or an “ ‘ “inbound” [forum selection] clause.’ ” 129 So.3d at 1011. These appear to be terms that have application to clauses governing the choice of venue in eases where a choice must be made between different states, not between fora within a single state. See generally, e.g., Professional Ins. Corp. v. Sutherland, 700 So.2d 347, 349 (Ala.1997) (upholding enforceability of an “outbound” forum-selection clause providing for disputes between the parties to be “conducted in Duval County, Florida”); Ex parte D.M. White Constr. Co., 806 So.2d 370, 371 (Ala.2001) (upholding enforceability of a “ ‘outbound’ forum-selection clause” providing for disputes between the parties to be instituted “in the courts of Hamilton County, Tennessee”); and High Life Sales Co. v. Brown-Forman Corp., 823 S.W.2d 493 (Mo.1992) (affirming trial court’s denial of motion to dismiss an action in order to allow it to be refiled in Kentucky, the forum designated in the agreement). The question of the enforceability of such clauses in such cases triggers different policy concerns than are presented in the present case (involving a simple forum-selection clause that will be applied to govern the choice between counties in Alabama, each of which, presumably, is an otherwise appropriate venue for the action, see Sutherland, 700 So.2d at 351 (interpreting Ala. Code 1975, § 6-3-1, to permit parties to “agree[ ] to restrict action to a particular forum that is authorized under the venue statutes”)).

In any event, I do not find it necessary in this particular case to address the standard by which a court must decide whether to enforce a forum-selection clause of the nature presented here. Instead, it appears to me that the only question presented in this case is the one presented by the position taken by Fish Market Restaurants, Inc., and George Sarris (hereinafter referred to collectively as “Fish Market”) that the forum-selection clause in the January 18, 2007, contract was not a function of “a clear meeting of the minds between the parties.”

As to this meeting-of-the-minds argument, the main opinion points out that Fish Market relies upon a case concerned only with an “accord and satisfaction,” namely Ray v. Alabama Central Credit Union, 472 So.2d 1012 (Ala.1985). The main opinion correctly notes that the present case does not involve an accord and satisfaction, but I do not read Fish Market’s argument as contending otherwise. An accord and satisfaction is in fact a type of contract, and it appears to me that Fish Market just happens to have quoted from an accord-and-satisfaction case in an effort to document the elements of a contractual agreement. The main opinion goes on to cite Ex parte Grant, 711 So.2d 464 (Ala.1997), for the proposition that one of “ ‘ “[t]he requisite elements of [a contract]” ’ ” is “ ‘ “mutual assent to terms essential to the formation of a contract,” ’ ” 129 So.3d at 1013, an element I see as no different from the “assent or meeting of the minds of the parties” element quoted by Fish Market from Ray v. Alabama Central Credit Union, 472 So.2d at 1014. In other words, at least insofar as the issue presented in this case is concerned, I cannot agree with the main opinion that “[t]he elements germane to the formation of a contract ... are different than the elements germane to an accord and satisfaction.” 129 So.3d at 1013. Again, an accord and satisfaction is but a form of a contract.

Because the main opinion concludes that “[t]he elements germane to the formation of a contract ... are different than the elements germane to an accord and satisfaction,” 129 So.3d at 1013, it finds Fish Market’s argument utilizing accord-and-satisfaction precedent “not persuasive.” 129 So.3d at 1013. I find Fish Market’s position in this case not persuasive for a different reason, namely, that Fish Market has failed to demonstrate that it did not objectively manifest its agreement to the provision in question. As the main opinion aptly points out, “ ‘[a]ssent must be manifested by something. Ordinarily, it is manifested by a signature,’ ” at least in regard to a written contract. 129 So.3d at 1013 (quoting Southern Energy Homes, Inc. v. Hennis, 776 So.2d 105, 108 (Ala.2000))(emphasis omitted). As the main opinion subsequently explains, “[t]he only evidence Fish Market directs this Court’s attention to indicating that Riverfront and Fish Market did not mutually assent to the terms essential to the formation of the lease” dated January 18, 2007, 129 So.3d at 1013, is the testimony of Sarris in which he focuses primarily on the fact that he never received an original copy of the lease. In this respect, I fully agree with the statement in the main opinion that “Fish Market has not directed this Court’s attention to any authority indicating that the ... testimony of an undisputed signatory to a contract stating simply that he never received an original copy of the contract demonstrates that the parties had not mutually assented to the terms of the contract.” 129 So.3d at 1013.

I believe the foregoing is sufficient analysis upon which to decide this case, and I express no agreement or disagreement with any portion of the analysis that follows the latter statement in the main opinion.

      . The notary certified as follows concerning Sarris’s signature on the lease:
      "I, the undersigned, a Notary Public of the State and County aforesaid, hereby certify that George Sarris, individually and as President of the Fish Market Rest[a]u-rants[,] Inc., and Robert J. Hayes, individually is signed to the foregoing instrument and who are known to me, acknowledged before me on this day that, being informed of the contents of the foregoing instrument, he, as such officer and with full authority, executed the same voluntarily on the day the same bears date for and as an act of said corporation.”
      (Emphasis added; capitalization omitted.)

      . "An ‘outbound’ forum selection clause is one providing for trial outside of Alabama, while an ‘inbound’ clause provides for trial inside Alabama.” Professional Ins. Corp. v. Sutherland, 700 So.2d 347, 348 n. 1 (Ala.1997). In the instant case, Riverfront seeks to dismiss or transfer the action on the basis of an inbound forum-selection clause, which designates the parties’ chosen venue as Tuscaloosa County.

      . On a related note, I do not agree with the references in the main opinion suggesting that a "lease” is not actually a contract but merely "is treated as a contract under our precedent.” 129 So.3d at 1012 (emphasis added). In point of fact, although it is true that a lease does create an interest in land, a lease is a contract, as noted by the case also cited in the main opinion, Bowdoin Square, L.L.C. v. Winn-Dixie Montgomery, Inc., 873 So.2d 1091, 1098 (Ala.2003) (noting that "lease agreements are contracts ” (emphasis added)).


author: PITTMAN, Judge.

text:
    Ex parte F.A. “Bubba” BINGHAM, in his official capacity as director, Department of Public Safety; et al. (In re Ronald Kidd and Teodosio Arroyo Martinez et al. v. F.A. “Bubba” Bingham, in his official capacity as director, Department of Public Safety; et al.).
    2100676.
    Court of Civil Appeals of Alabama.
    Jan. 6, 2012.
    Rehearing Denied March 2, 2012.

      Luther Strange, atty. gen., and Zackery L. Burr, asst. atty. gen., Alabama Department of Public Safety, Legal Office, for petitioners.
    Joe M. Reed of Joe M. Reed & Associates, LLC, Montgomery, for respondents.
   PITTMAN, Judge.

F.A. “Bubba” Bingham, in his official capacity as the director of the Alabama Department of Public Safety (“the DPS”), and Alabama State Trooper Darrell Seymour (Bingham and Seymour are hereinafter referred to collectively as “the DPS defendants”) petition this court to issue a writ of mandamus directing the Montgomery Circuit Court to dismiss for lack of subject-matter jurisdiction the underlying action filed by Ronald Kidd and Teodosio Arroyo Martinez (“the claimants”) against the DPS defendants. For the reasons set forth below, we grant the petition and issue the writ.

Factual and Procedural Background

As named plaintiffs in a putative class-action lawsuit, the claimants sought the return of cash that state troopers had seized from them pursuant to § 20-2-93, Ala.Code 1975. The complaint alleged that Seymour had seized $10,000 from Kidd on January 18, 2008, and that an unknown state trooper had seized $20,390 from Martinez on March 31, 2010. The complaint further alleged that, instead of instituting prompt proceedings to forfeit the property to the State as required by § 20-2-93(c) and § 28-4-286, Ala.Code 1975, the DPS had transferred the property to the Drug Enforcement Administration (“the DEA”) to commence federal forfeiture proceedings and that, at the conclusion of those proceedings, the DEA had returned 80 to 90 percent of the forfeited cash to the DPS and had kept the remainder as an administrative fee.

The DPS defendants moved to dismiss the claims against them, pursuant to Rule 12(b)(1), Ala. R. Civ. P., and filed a brief in support of that motion, asserting that the Montgomery Circuit Court lacked subject-matter jurisdiction over the action because, they said, jurisdiction was vested in the federal courts by virtue of the adoptive-forfeiture doctrine, citing Edney v. City of Montgomery, 960 F.Supp. 270 (M.D.Ala.1997) (holding that, pursuant to the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 881, a federal agent’s adoption of a state’s seizure of currency has the same effect as if the United States had originally seized the currency), and Green v. City of Montgomery, 55 So.3d 256 (Ala.Civ.App.2009) (holding that a state court had jurisdiction over an in rem action seeking return of seized currency because the claimants had filed that action before the currency had been transferred to the DEA and the DEA had adopted the seizure). The claimants filed a response in opposition to the motion to dismiss, along with a supporting brief. On April 1, 2011, the trial court entered an order denying the motion to dismiss. The DPS defendants filed a timely petition for a writ of mandamus on April 21, 2011.

Standard of Review

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

Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995). “The question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus.” Ex parte Liberty Nat’l Life Ins. Co., 888 So.2d 478, 480 (Ala.2003) (citing Ex parte Flint Constr. Co., 775 So.2d 805 (Ala.2000)).

Discussion

In denying the motion to dismiss, the trial court determined that the adoptive-forfeiture doctrine discussed in Edney, supra, did not apply in this case because there had been no involvement by federal law-enforcement agents in the actual seizure of the claimants’ property. In Edney, DEA agents had instructed municipal police officers to seize cash from the claimant “on behalf of the DEA.” 960 F.Supp. at 271. In this case, the trial court concluded that because the state troopers had seized the claimants’ property solely on the authority of state law, and because DEA agents had had no involvement in or knowledge of the seizures until after they had occurred, state law applied and the federal adoptive-forfeiture doctrine did not apply. That conclusion was erroneous as a matter of law.

As this court explained in Green, supra, the validity of the adoptive-seizure process is not dependent upon the participation of federal authorities in the seizure itself.

“The authority for adoptive seizure, although not explicit, comes from 21 U.S.C. § 881(e)(1)(A), which allows the United States Attorney General, at the conclusion of federal forfeiture proceedings, to return seized property back to the state or local agency ‘which participated directly in the seizure or forfeiture of the property.’ Federal adoption of a seizure has the same effect as if the seizure had originally been made by the United States. See United States v. One Ford Coupe Auto., 272 U.S. 321, 47 S.Ct. 154, 71 L.Ed. 279 (1926).”

55 So.3d at 259. In Green, we described how the adoptive-seizure process works:

“The adoptive-seizure process begins when state or local authorities seize property as part of a criminal investigation or arrest. Generally, the state or local officials either make a determination that forfeiture is not possible under state law or conclude that it is advantageous to them to transfer the matter to federal authorities for a federal administrative forfeiture proceeding. See I.R.S. Manual 9.7.2.7.B (July 25, 2007); Asset Forfeiture Law, Practice, and Policy, Asset Forfeiture Office, Criminal Division, United States Department of Justice, Vol. I (1988) at 38 (cited in Johnson v. Johnson, 849 P.2d 1361, 1363 (Alaska 1993)). Once state or local officials have determined that an adoptive seizure is advantageous, they file a request with federal authorities. The appropriate federal agency then decides whether to accept or reject the request. If the adoptive-seizure request is accepted, the property is taken into the custody of federal agents and federal administrative forfeiture proceedings begin. At the successful conclusion of those proceedings, usually 80% of the forfeited property is given back to the state or local agency.”

55 So.3d at 258.

This court held that the state court had jurisdiction over the seized property in Green because the claimants had filed an in rem action for the return of their property before the DEA had adopted the seizure. We noted: “The claimants’ action in state court was an in rem or quasi in rem action, and it invoked state in rem jurisdiction before the federal government attempted to acquire jurisdiction.” 55 So.3d at 265. In the present case, the allegations of the complaint demonstrate that federal authorities had adopted the seizures and had, therefore, acquired in rem jurisdiction over the claimants’ property before the claimants filed an in rem action in state court for the return of their property. “[T]wo courts cannot have concurrent in rem jurisdiction and ... the first court to acquire in rem jurisdiction does so to the exclusion of all other courts.” Green, 55 So.3d at 259 (citing Ex parte Consolidated Graphite Corp., 221 Ala. 394, 397-98, 129 So. 262, 265 (1930)).

Because a federal court had already acquired (and exercised) in rem jurisdiction over the claimants’ property at the time the claimants filed an in rem proceeding in the Montgomery Circuit Court, the circuit court had no jurisdiction in this case. Accordingly, we conclude that the DPS defendants have met the requirements for the issuance of a writ of mandamus. The trial court is, therefore, directed to vacate its order denying the DPS defendants’ motion to dismiss and to enter an order granting that motion.

PETITION GRANTED; WRIT ISSUED.

THOMPSON, P.J., and BRYAN, THOMAS, and MOORE, JJ., concur.

      . Based on the materials before this court, it appears that the claimants have also asserted claims against fictitiously named parties, pursuant to Rule 9(h), Ala. R. Civ. P. Moreover, it appears that, in addition to their individual claims, the claimants have asserted claims on behalf of a class of similarly situated individuals. Finally, it appears that additional plaintiffs have asserted claims against other defendants; however, those claims and parties are not before this court in this mandamus proceeding.

      . Section 20-2-93 provides, in pertinent part:
      "(a) The following are subject to forfeiture:

      "(4) All ... moneys, negotiable instruments, and securities used or intended to be used to facilitate any violation of any law of this state concerning controlled substances;

      "(b) Property subject to forfeiture under this chapter may be seized by state, county or municipal law enforcement agencies upon process issued by any court having jurisdiction over the property. Seizure without process may be made if:
      "(1) The seizure is incident to an arrest or a search under a search warrant or an inspection under an administrative inspection warrant;
      "(2) The property subject to seizure has been the subject of a prior judgment in favor of the state in a criminal injunction or forfeiture proceeding based upon this chapter;
      "(3) The state, county, or municipal law enforcement agency has probable cause to believe that the property is directly or indirectly dangerous to health or safety; or
      "(4) The state, county or municipal law enforcement agency has probable cause to believe that the property was used or is intended to be used in violation of this chapter.
      "(c) In the event of seizure pursuant to subsection (b) of this section, proceedings under subsection (d) of this section shall be instituted promptly.
      "(d) Property taken or detained under this section shall not be subject to replevin but is deemed to be in the custody of the state, county or municipal law enforcement agency subject only to the orders and judgment of the court having jurisdiction over the forfeiture proceedings. When property is seized under this chapter, the state, county or municipal law enforcement agency may:
      "(1) Place the property under seal;
      “(2) Remove the property to a place designated by it;
      "(3) Require the state, county or municipal law enforcement agency to take custody of the property and remove it to an appropriate location for disposition in accordance with law....

      “(h) .... Except as specifically provided to the contrary in this section, the procedures for the condemnation and forfeiture of property seized under this section shall be governed by and shall conform to the procedures set out in Sections 28-4-286 through 28-4-290....”

      . Section 28-4-286 provides, in pertinent part:
      "It shall be the duty of such officer in the county or the Attorney General of the state to institute at once or cause to be instituted condemnation proceedings in the circuit court by filing a complaint in the name of the state against the property seized, describing the same, ... to obtain a judgment enforcing the forfeiture.”


author: MURDOCK, Justice.

text:
    Ex parte Ronald KIDD and Teodosio Arroyo Martinez. (In re Ex parte F.A. “Bubba” Bingham, in his official capacity as director, Department of Public Safety; et al. (In re Ronald Kidd and Teodosio Arroyo Martinez et al. v. F.A. “Bubba” Bingham, in his official capacity as director, Department of Public Safety; et al.)).
    1110767.
    Supreme Court of Alabama.
    May 24, 2013.

      Joe M. Reed of Joe M Reed & Associates, LLC, Montgomery, for petitioners.
    Submitted on petitioners’ brief only.

       Justice Bryan was a member of the Court of Civil Appeals when that court considered this case.

   MURDOCK, Justice.

The petition for the writ of certiorari is denied.

In denying the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT DENIED.

STUART, BOLIN, PARKER, SHAW, MAIN, and WISE, JJ., concur.

MOORE, C.J., dissents.

BRYAN, J., recuses himself.