source: Caselaw Access Project

author: THOMAS, Judge. DONALDSON, Judge,

license: Public Domain

text:
    GEICO INDEMNITY COMPANY v. Sharon BELL, Administratrix of the Estate of Kaysha Bell
    2150745
    Court of Civil Appeals of Alabama.
    March 10, 2017

      Jack Owen of Ball, Ball, Matthews & Novak, P.A., Montgomery, for appellant.
    Michael J. Crow of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery, for appellee.
   THOMAS, Judge.

In June 2013, Kaysha Bell was killed in a one-vehicle accident. Bell had been a passenger in a' 2012 Honda automobile (“the Honda”) that she owned jointly with Shandarius Steiner, who was driving at the time of the accident. Steiner and Bell had insured the Honda by purchasing an automobile-insurance policy (“the policy”) from Geico Indemnity Company (“Geico”). The policy included what is commonly referred to as uninsured-motorist (“UIM”) coverage, as required by Ala. Code 1975, § 32-7-23.

Bell’s mother, Sharon Bell, was named the administratrix of Bell’s estate (“the estate”). Bell’s mother, on behalf of the estate, sued Steiner, Geico, and others in the Lowndes Circuit Court (“the trial court”), seeking damages for Bell’s death. The case proceeded to trial against Steiner and Geico, after which the trial court entered a judgment in favor of the estate for $1,000,000. The trial court specifically noted in its judgment that the policy “provided uninsured motorist coverage in accordance with the policies [ (sic) ] definition of ‘uninsured auto.’ ” Geico filed a post-judgment motion, challenging the trial court’s conclusion that the Honda was an “uninsured auto” under the policy; Geico also sought a remittitur of the judgment against it to $50,000, the limits of the UIM coverage available under the policy. The trial court granted the request for a remit-titur but denied Geico’s postjudgment motion.

Geico timely appealed. On appeal Geico argues that the trial court improperly construed the policy to require it to pay UIM benefits to the estate. The parties agree that our standard of review of the trial court’s judgment is de novo because the facts are undisputed and the issue involves only a question of law. Carter v. City of Haleyville, 669 So.2d 812, 815 (Ala. 1995) (noting that, although the findings in a judgment entered by a trial court sitting without a jury are ■ usually entitled to a presumption of correctness, “where the facts before the trial court are essentially undisputed and the controversy involves questions of law for the court to consider, this presumption of correctness does not apply”).

The Policy Provisions

Section I of the policy addresses liability coverage, which it characterizes as “protection against claims from others for bodily injury liability or property damage liability.” Paragraph four of Section I defines “Insured” as “a person or organization described under PERSONS INSURED.” The “PERSONS INSURED” portion of Section I of the policy explains that, as it relates to an “owned auto,” an “insured” is “you and your relatives.” “You” is defined as “the policyholder named in the declarations.” An “owned auto” is defined in paragraph five as, among other things not relevant to this particular appeal, “a vehicle described in this policy for which a premium charge is shown for these coverages.” The declarations page of the policy indicates that Steiner and Bell were the named insureds of the policy and that the Honda was a vehicle for which a premium for bodily-injury coverage was paid. Thus, under Section I of the policy, both Steiner and Bell were the “insureds,” because the Honda was an “owned auto” and both of them were named on the declarations page.

Section I of the policy provides that Geico will “pay damages which an insured becomes legally obligated to pay because of,” among other things not relevant to this opinion, “bodily injury,[] sustained by a person.” In addition,- Section I provides that “[Geico] will not defend any suit for damage if one or more of the exclusions listed below applies.” The exclusion relevant to the present appeal , reads as follows: “1. Bodily injury to any insured or any relative of an insured residing in his household is not covered.” As explained above, Bell was an “insured” under the definitions provided in Section I of the policy. Thus, the above-quoted exclusion, commonly referred to as “the household exclusion,” would apply to exclude liability coverage for bodily injury to Bell.

Section IV of the policy addresses UIM coverage. Section IV contains the following definitions:

“3. ‘Insured auto’ is an auto:
“(a) described in the declarations and covered by the bodily injury liability coverage of this policy;
“6. ‘Uninsured auto’ is a motor vehicle which has no bodily injury liability bond or insurance policy applicable with liability limits complying with the financial responsibility law of the state in which the insured auto is principally garaged at the time of an accident. This term also includes an auto whose insurer is or becomes insolvent or denies coverage and an auto for which the limits of liability under all bodily injury insurance policies available to the injured person are less than the damages which the injured person is legally entitled to recover.
“The term ‘uninsured auto’ does not include:
“(a) an insured auto[.]”

Section IV provides that Geico “will pay damages for bodily injury caused by accident which the insured- is legally entitled to recover from the owner or operator of an uninsured auto ... arising out of the ownership, maintenance or,-use of that auto.”

Rules of Construction

The rules governing our construction of insurance contracts are well settled.

“General rules, of contract law govern an insurance contract. Twin City Fire Ins. Co. v. Alfa Mut. Ins. Co., 817 So.2d 687, 691 (Ala. 2001). The court must enforce the insurance policy as written if the terms are unambiguous, id.; Liggans R.V. Ctr. v. John Deere Ins. Co., 575 So.2d 567, 569 (Ala. 1991). Whether a provision of an insurance policy is ambiguous is a question of law, Turvin v. Alfa Mut. Gen. Ins. Co., 774 So.2d 597, 599 (Ala. Civ. App. 2000).”

Safeway Ins. Co. of Alabama, Inc. v. Herrera, 912 So.2d 1140, 1143 (Ala. 2005). Furthermore, “[a]ny ambiguities in an insurance contract must be construed liberally in favor of the insured.” Johnson v. Allstate Ins. Co., 505 So.2d 362, 365 (Ala. 1987). “However, the parties cannot create ambiguities by setting forth different interpretations or ‘[by inserting] strained or twisted reasoning.’” Herrera, 912 So.2d at 1143 (quoting Twin City Fire Ins. Co. v. Alfa Mut. Ins. Co., 817 So. 2d 687, 692 (Ala. 2001)).

In addition, the law gives guidance regarding the construction of exclusions within an insurance policy.

“[Exceptions to coverage must be interpreted as narrowly as possible in order to provide maximum coverage to the insured. However, courts are not at liberty to rewrite policies to provide coverage not intended by the parties. Newman v. St. Paul Fire & Marine Insurance Co., 456 So.2d 40, 41 (Ala. 1984). In the absence of statutory provisions to the contrary, insurance companies have the right to limit their liability and write policies with narrow coverage. United States Fidelity & Guaranty Co. v. Bonitz Insulation Co. of Alabama, 424 So.2d 569, 573 (Ala. 1982). If.there is no ambiguity, courts must enforce insurance contracts as written and cannot defeat express provisions in a policy, including exclusions from coverage, by making a new contract for the parties. Turner v. United States Fidelity & Guaranty Co., 440 So.2d 1026, 1028 (Ala. 1983).”

Johnson, 505 So.2d at 365; see also Nationwide Mut. Ins. Co. v. Thomas, 103 So.3d 795, 803 (Ala. 2012).

The Aguments of the Parties

Sharon Bell,- on behalf- of the estate, argues that the Honda, which was named on the declarations page of the policy and for which Steiner and Bell had- paid a premium for bodily-injury-liability coverage, was converted to an “uninsured auto” because of the language used in the definition of “insured auto” in the UIM-coverage section of the policy. Specifically, the estate argues that an “insured auto” must be both the automobile described in the declarations page of the policy and “must be covered by the bodily injury liability coverage of [the]- policy.” (Emphasis added.) Because the policy excludes liability coverage for Bell’s death under the household exclusion in the -liability section of the policy, the estate contends, the Honda is not actually covered by the bodily-injury-liability provisions of the policy.

' Geico argues that the Honda is an “insured auto” under the policy because it is “described in the declarations and covered by the bodily-injury-liability coverage of this policy.” According to Geico, the same vehicle cannot be both an “insured auto” and an “uninsured auto” under-the same policy. Thus, Geico contends, the term “insured auto” does not become ambiguous simply because .the application of the household exclusion precludes coverage for Bell’s death in this particular circumstance.

Analysis

The definition of “insured auto” contained in the UIM-coverage section of the policy requires that the vehicle at issue, here the Honda, be named in the declarations and be “covered by the bodily injury liability coverage of this policy,” The parties agree that the vehicle involved in the accident, the Honda, is “described in the declarations.” At issue is whether the Honda is “covered by the bodily injury liability coverage of this policy.” The estate reads' the definition of “insured auto” as requiring that, in order for the Honda to be an “insured, auto” under the particular facts and circumstances of the present case, the policy must afford liability coverage for Bell’s death. However, such a construction is strained and unreasonable, especially in light of the body of law applicable to such situations.

Our supreme court has explained that UIM coverage, and the policies written for it, “deal with the motor vehicle which is uninsured, not the motorist.” Watts v. Preferred Risk Mut. Ins. Co., 423 So.2d 171, 174 (Ala. 1982). In Watts, our supreme court considered whether an insurance policy could exclude from its definition of “uninsured motor vehicle” an “insured automobile,” which it defined as “ ‘an automobile described in the policy for which a specific premium charge indicates that coverage is afforded.’ ” Watts, 423 So.2d at 174. Although the language of the policy at issue in this case and the language of the policy at issue in Watts, differs, the legal principles articulated in Watts are applicable here.

The Watts court quoted with approval Reid v. State Farm Fire & Casualty Co., 352 So.2d 1172, 1173 (Fla. 1977), which held that a vehicle that is insured under a policy of insurance “‘does not become uninsured because liability coverage may not be available to a particular individual.’ ” Watts, 423 So.2d at 175. In addition, our supreme court has explained that

“Insurance Companies may by appropriate exclusions and exclusionary definitions protect themselves through a valid contract. Mathis v. Auto-Owners Ins. Co., 387 So.2d 166 (Ala. 1980). Further, citing several Florida cases, we .held in Watts that an insured automobile does not become uninsured because liability coverage may not be available to a particular individual....
“In our view the Court of Civil Appeals [in O’Hare v. State Farm Mutual Automobile Insurance Co. 432 So.2d 1294, 1297-98 (Ala. Civ. App. 1982),] was correct in writing:
' “ ‘The Supreme Court of Mississippi in the case of Aitken v. State Farm Mutual Automobile Insurance Co., 404 So.2d 1040 (Miss. 1981), .., held that the motor vehicle cannot be both insured and uninsured in the same poli-

Ex parte O’Hare, 432 So.2d 1300, 1303 (Ala. 1983) (emphasis added). Stated, more directly, our supreme court has concluded that “when the insurance carrier of the vehicle involved in an accident denies liability coverage to an individual because of an applicable liability exclusion or exclusionary definition, that denial does not trigger the availability of uninsured motorist. coverage to that individual under -the same policy.” Hall v. State Farm Mut. Auto. Ins. Co., 514 So.2d 853, 855 (Ala. 1987). By its own admission, our supreme court has consistently adhered to the principle enunciated in Watts and Ex parte O’Hare. See Allstate Ins. Co. v. Hardnett, 763 So.2d 963, 964 (Ala,2000) (“This Court has consistently upheld exclusions -within an uninsured-motorist portion of a policy that deny coverage for a vehicle that is covered under the liability portion of the same policy.”); Phyall v. Allstate Ins. Co., 551 So.2d 303, 304 (Ala. 1989); see also Hall, 514 So.2d at 855.

In Hardnett, 763 So.2d at 965-65, our supreme court considered whether a resident of the same household of the insured could recover under the UIM section of the insured’s policy after her claim for liability coverage under the liability portion of the policy was rejected based on the application of the household exclusion. The court explained that the insurer had argued that “if an insured is denied coverage under the liability portion of his own policy, he . should not then be able to drop down to the uninsured-motorist portion and collect benefits for the same injury.” Id. at 965. The basis for application of the household exclusion, the Hardnett court explained, was to protect the insurer from collusion perpetrated by family members. Id.

This court has also had occasion to apply the principle first espoused in Watts. See Dale v. Home Ins. Co., 479 So.2d 1290, 1291 (Ala. Civ. App. 1985). In Dale, we considered whether a Russellville City fireman, who was an insured under the Home Insurance Company (“Home”) policy of automobile insurance issued to the City of Russellville, could be awarded UIM benefits when coverage for his injuries was excluded under the “fellow employee” exclusion from thé liability coverage of the policy. Dale, 479 So.2d at 1291. The fireman had been injured in a one-vehicle accident while riding on the fire truck. Id. at 1290. Our court stated the fireman’s argument thusly: “[The fireman] argues that as the result of a ‘fellow employee’ exclusion contained in the liability endorsement of the Home policy, the fire truck upon which he was riding was, at the time of the accident, ‘uninsured’ as to him, even though he is an ‘insured’ under the language of the policy.” Id at 1291. Relying on Watts and Ex parte O’Hare, this court concluded that “[i]t is clear to us, that in the present case, the fire truck cannot be both an ‘insured vehicle’, with coverage for [the fireman] under the uninsured motorist provision of the Home policy, and an ‘uninsured vehicle’ under the same Home policy.” Id.

The estate contends that the policy in the present case violates § 32-7-23 because it is more restrictive than the statute, which, the estate contends, does not “prohibid ] an insured ... who is denied coverage under the bodily injury liability section of the policy from recovering under the UIM section of the policy.” Although the statute does not prohibit an insured from doing so, we cannot agree that the statute requires that a policy permit recovery in such circumstances. This court considered a similar argument in Lammers v. State Farm Mutual Automobile Insurance Co., 48 Ala.App. 36, 261 So.2d 757 (Civ. 1972).

In Lammers, this court examined whether the definition of “uninsured automobile” in the subject insurance policy

“conflict[ed] with [Ala. Code 1940 (Re-comp. 1958), Tit. 36, § 72(62a), the predecessor statute to § 32-7-23,] the statute requiring that all liability and property damage policies issued to residents of Alabama contain ‘uninsured motorist’ coverage, as to render said definition void as to persons injured while riding in the named automobile or any other automobile owned by the named insured or by any member of his family residing in the same household.”

Lammers, 48 Ala.App. at 38-39, 261 So.2d at 759. Coyle Lammers, the named insured, and his wife, Lovis Lammers, had been involved in a one-vehicle accident in which he was killed and she was injured. 48 Ala.App. at 38-39, 261 So.2d at 759. Lovis sought to recover for Coyle’s negligence.-and/or wantonness in causing her injuries. 48 Ala,App. at 38, 261 So.2d at 758. The insurer argued that Lovis was precluded from recovering under the insurance policy purchased by Coyle because the automobile was not, by definition, an uninsured automobile. 48 Ala.App. at .38, 261 So.2d at 759.

The Lammers court rejected Lovis’s contention that the policy at issue violated the UIM statute, noting that household exclusions had been repeatedly upheld.

“The Supreme Court of this state has consistently upheld the ‘household exclusion’ clause of liability policies, thereby establishing a judicial policy in this state that insurance companies 'may by appropriate exclusions and exclusionary definitions protect themselves from friendly family lawsuits. What availeth it to an insurance company to escape liability under the ‘household exclusion’ clause and then finds itself caught in the net of the ‘uninsured motorist’ clause? If the legislature, knowing the judicial policy of the courts of this state with reference to ‘household exclusion’ clauses, had seen fit to make ‘uninsured motorist’ coverage nullify, in practical effect, such ‘household exclusion’ clauses, it surely would have done so when it adopted the ^Uninsured Motorist Coverage’ statute, supra.”

48 Ala.App. at 45, 261 So.2d at 765; Our supreme court approved of the above-quoted language in Mathis v. Auto-Owners Insurance Co., 387 So.2d 166, 168 (Ala. 1980), and we find that it continues to aptly state the law. We reject the estate’s contention that the policy in the present case violates § 32-7-23.

Conclusion

Under Watts and its progeny, an insurer’s denial of “liability coverage to an individual because of an applicable liability exclusion or exclusionary definition does not trigger the availability of uninsured motorist coverage to that individual under the same policy.” Hall, 514 So.2d at 855. The estate has attempted to apply “strained or twisted reasoning” to create an ambiguity that, in light of the whole policy and the long-standing applicable caselaw on the subject, does not exist. See Kelley v. Royal Globe Ins. Co., 349 So.2d 561, 563 (Ala. 1977) (“[Ajmbiguities are not to be inserted by strained or twisted reasoning.”). The construction of the policy urged by the estate and adopted by the trial court swallows the household exclusion and improperly “defeat[s] [an] express provision[ ] in [the] policy ... by making a new contract for the parties,” Johnson, 505 So.2d at 365. Accordingly, we reverse the judgment of the trial court and remand the cause to the trial court with instructions to enter a judgment in favor of Geico.

REVERSED AND REMANDED WITH INSTRUCTIONS.

Thompson, P.J., and Pittman, J., concur.

Moore, J., concurs in the result, without writing.

Donaldson, J., dissents, with writing.

DONALDSON, Judge,

dissenting.

An insurance policy may be written in a manner that disallows a person occupying an automobile described on the declarations page of the insurance policy as a vehicle insured for bodily-injury 'liability, subject to limitations and exclusions, from obtaining uninsured-motorist (“UIM”) benefits under the same insurance policy. See, e.g, Allstate Ins. Co. v. Hardnett, 763 So.2d 963 (Ala. 2000); Ex parte O'Hare, 432 So.2d 1300 (Ala. 1983); Watts v. Preferred Risk Mut. Ins. Co., 423 So.2d 171 (Ala. 1982); and Broughton v. Allstate Ins. Co., 842 So.2d 681 (Ala. Civ. App. 2002). But no law requires a policy to be written in that manner, and different insurance policies may define terms such as “insured vehicle” or “insured auto" in different ways. The language in the specific automobile-insurance policy issued by Geico Indemnify Company in this case (“the Geico policy”) is not the same as the language uséd in the insurance policies in the cases cited above, and the Geico policy contains definitions in its provisions regarding UIM benefits that differ from the definitions in the policies at issue' in the cases cited above. “Where an insurance policy defines certain words or phrases, a court must defer to the definition provided ■ by the policy.” Twin City Fire Ins. Co. v. Alfa Mut. Ins. Co., 817 So.2d 687, 692 (Ala. 2001). Like the trial judge, I find the relevant language of the Geico policy to be ambiguous when read plainly and without nuance. The Geico policy is subject to a reasonable interpretation that provides UIM coverage as applied to the undisputed facts of this case. Accordingly, Alabama law requires us to affirm the judgment of the trial court in favor of Sharon Bell, as administratrix of the estate of Kaysha Bell. See Davis v. State Farm Mut. Auto. Ins. Co., 583 So.2d 225, 228 (Ala. 1991) (holding that ambiguous term in an insurance policy must be construed in favor of insured).

The facts in this case, are undisputed. Kaysha Bell and Shandarius Steiner jointly owned a 2012 Honda automobile (“the Honda”). Steiner and Kaysha Bell purchased the Geico policy that provided bodily-injury liability protection and UIM benefits subject to the terms and conditions of the policy. The declarations page of the Geico policy lists Steiner and Kaysha Bell as named insureds.

In June 2013, Kaysha Bell was killed in a single-vehicle accident while riding as a passenger, in the Honda that was being driven by Steiner. Although the Honda was listed on the declarations page of the Geico policy as being -insured for bodily-injury liability coverage, the Geico policy contains the following applicable exclusion: “1. Bodily injury to any insured or any relative of an insured residing in his household is not covered.” (Emphasis added.) Therefore, it is undisputed that there are no benefits available as a result of Kaysha Bell’s death under the liability-insurance provisions of the Geico policy or any other insurance policy.

Sharon Bell, as administratrix of Kaysha Bell’s estate, filed a complaint in, the Lowndes Circuit Court (“the trial court”) alleging a claim of negligence and/or wantonness against Steiner and a claim seeking UIM benefits against Geico. The trial court entered a judgment in favor of Sharon Bell on her claims and awarded .her damages against Steiner and Geico, In the judgment, .the trial court found that, because the Honda was an “uninsured auto” under the Geico policy, Sharon Bell was entitled to UIM benefits on behalf of Kay-sha Bell’s estate.

Pursuant to the Uninsured Motorist Statute, § 32-7-23, Ala. Code 1975, UIM coverage in an insurance policy provides “for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles.” § 32-7-23(a). Section IV of the Geico policy contains the following provisions regarding UIM coverage:

“LOSSES WE PAY
“Under the Uninsured Motorists Coverage we will pay damages for bodily injury caused by accident which the insured is legally entitled to recover from the owner or operator of an uninsured auto .., arising out of the ownership, •maintenance or use of that auto,”

It is undisputed that Sharon. Bell, on the behalf of the insured, Kaysha Bell, is legally entitled to recover, .damages against Steiner arising out of his operation of the Honda during the accident resulting in Kaysha’s death. Therefore, the availability of UIM coverage under the Geico policy depends on whether the Honda is an “uninsured auto.” The Geico policy specifically defines the term “uninsured auto” as follows:

“6. ‘Uninsured auto’ is a motor vehicle which has no bodily injury liability bond or insurance policy applicable with liability limits complying with the financial responsibility law of the state in which the insured auto is principally garaged at the time of an accident. This term also includes an auto whose insurer is or becomes insolvent or denies coverage and an auto for which the limits of liability under all bodily injury insurance policies available to the injured person are less than the damages which the injured person is legally entitled to recover.
“The term ‘uninsured auto’ does not include:
“(a) an insured auto[.]”

As specifically defined in the Geico policy, the term “uninsured auto” encompasses a motor vehicle whose insurer “denies” bodily-injury liability coverage. Because the bodily injury in this case was incurred by an insured (Kaysha Bell), Geico denied bodily-injury liability coverage under the Geico policy. Therefore, the Honda is “an auto whose insurer ... denies coverage” under the definition of “uninsured auto,” and the liability coverage under the Geico policy does not cover the damages resulting from the operation of the Honda. The Geico policy also provides that an “insured auto” is not an “uninsured auto.” The term “insured auto” is likewise specifically defined in the Geico policy:

“3. ■ ‘Insured auto’ is an auto:
“(a) described in the declarations and covered by the bodily injury liability coverage of this policy!.]”

(Emphasis added.)

A provision in an insurance policy is ambiguous if it is “ ‘reasonably susceptible to more than one meaning.’” Boone v. Safeway Ins. Co. of Alabama, 690 So.2d 404, 406 (Ala. Civ. App. 1997) (quoting Vainrib v. Downey. 565 So.2d 647, 648 (Ala. Civ. App. 1990)). “ ‘The instrument is unambiguous if only one reasonable meaning clearly emerges.’ ” Id. (quoting Vainrib v. Downey, 565 So.2d at 648). What is meant by the word “covered” as used in the definition of “insured auto”? As asserted by Sharon Bell, one interpretation is that the Honda was not “covered” by bodily-injury liability coverage- because the Geico policy did not afford compensation for the death of Kaysha Bell. See Merriam-Webster.’s Collegiate Dictionary 288 (11th ed. 2003) (defining one meaning of “cover” as “to afford protection against or compensation for”). Under that interpretation, the Honda- is not an “insured auto” and, accordingly, is an “uninsured auto.” Another interpretation is that the Honda was “covered” because it was listed on the declarations page, even if the .liability coverage was not applicable to the death of Kaysha Bell under the Geico policy. The Geico policy could have been written in a manner that clearly expressed an intent to adopt that interpretation, but it was not. By Using the phrase “covered by the bodily injury liability coverage' of this policy,” the meaning of “insured auto” in the Geico policy is ambiguous, and I cannot say that the term “insured auto” has only the meaning advocated by Geico. Further, I am not directed to any provision of Alabama law, whether under the Uninsured Motorist Act or otherwise, that would prohibit the interpretation of the Geico policy as providing UIM coverage for the accident resulting in the death of Kaysha Bell.

As noted, nothing prevents an insurer from writing a policy to disallow UIM coverage in the circumstances presented in this case, or using language other than “covered” to define an insured vehicle. In Allstate Insurance Co. v. Hardnett, 763 So.2d at 965, our supreme court upheld an exclusion from “uninsured auto” within an insurance policy that read: “‘[a] motor vehicle which is insured under the Liability Insurance coverage of this policy.’ ” See also Ex parte O’Hare, 432 So.2d at 1303 (upholding “policy language excluding the insured from coverage ‘while occupying or through being struck by a land motor vehicle owned by the named insured’ ”); Watts v. Preferred Risk Mut. Ins. Co., 423 So.2d at 174 (upholding exclusion from “uninsured automobile” of “ ‘an automobile described in the policy for which a specific premium charge indicates that coverage is afforded’ ”); and Broughton v. Allstate Ins. Co., 842 So.2d at 682 (upholding exclusion from “uninsured auto” of “ ‘a motor vehicle which is insured under the Liability Insurance coverage of this policy’ ”).

The Geico policy language differs from the exclusions in O’Hare, Watts, Hardnett, and Broughton. The exclusion in O’Hare required an insured’s occupation and ownership of an insured vehicle, and the exclusion in Watts specifically required an indication of a premium charge for coverage. Those requirements are not stated in the relevant definition of “insured auto” in this case. The exclusions in Hardnett and Broughton use the words “insured under” as opposed to “covered by.” The exclusions in those cases are not readily susceptible to an interpretation requiring coverage of a particular claim, as the relevant definition of “insured auto” does in this case. Because of the differences in language, the exclusions in those cases are distinguishable from the definition of “insured auto” in this case.

In support of its arguments, Geico cites Dale v. Home Insurance Co., 479 So.2d 1290 (Ala. Civ. App. 1985). Relying on O’Hare, this court in Dale held that a fireman injured in a one-vehicle accident was not entitled to UIM benefits and that the vehicle could not be both insured and uninsured under the insurance policy in that case. Dale, however, does not provide the definitions of “insured vehicle” and “uninsured vehicle” in the insurance policy in question, or any other applicable policy language. Because Dale relies on O’Hare as authority for its holding, it does not appear to prevent the interpretation of the Geico policy advanced by the Sharon Bell. Moreover, Sharon Bell’s interpretation maintains the distinction between an “uninsured auto” and an “insured auto.”

In summary, I agree that Alabama law allows an insurer to exclude UIM coverage for a vehicle that is insured for liability coverage under the same policy. See, e.g., Allstate Ins. Co. v. Hardnett, 763 So.2d at 964 (“This Court has consistently upheld exclusions within an uninsured-motorist portion of a policy that deny coverage for a vehicle that is covered under the liability portion of the same policy.”). I do not agree that our caselaw requires this court to construe the language in the Geico policy only in the manner advocated by Geico.

Sharon Bell has shown that the term “insured auto” in the policy has more than one reasonable meaning, and her interpretation of “insured auto” is consistent with other provisions in the policy obligating Geico to provide UIM coverage. ““‘The rule is too well settled by our decisions to require citation of authority that where provisions of an insurance policy are susceptible of plural constructions, consistent with the object of the obligation, that construction will be adopted which is favorable to the insured.”’” Davis v. State Farm Mut. Auto. Ins. Co., 583 So.2d 225, 228 (Ala. 1991) (quoting Crossett v. St. Louis Fire & Marine Ins. Co., 289 Ala. 598, 603-04, 269 So.2d 869, 873 (1972), quoting in turn State Farm Mut. Auto. Ins. Co. v. Hanna, 277 Ala. 32, 37, 166 So.2d 872, 876 (1964) (emphasis added in Crossett)). I therefore respectfully dissent.

      . In addition to Steiner and Geico, Bell's mother, on behalf of the estate, sued two named individuals and fictitiously named parties that she alleged had served Steiner alcoholic beverages, and she sought to impose liability on them for Bell’s death under the Dram Shop Act, Ala. Code 1975, § 6-5-71. The named parties and those claims were dismissed from the action by the estate; no parties were substituted for the fictitiously named parties, and thus their existence does not affect the finality of the judgment in this case. See Rule 4(f), Ala. R. Civ. P.

      . Under the definition contained in the policy, "bodily injury” includes death.


author: PITTMAN, Judge.

text:
    Veronica D. EXUM v. Ronnie G. EXUM
    2150948
    Court of Civil Appeals of Alabama.
    March 10, 2017
    Billy J. Sheffield II, Dothan, for appellant.
    Thomas E. Smith, Dothan, for appellee.
   PITTMAN, Judge.

Veronica D. Exum (“the mother”) appeals from a judgment of the Houston Circuit Court modifying a prior custody judgment so as to award Ronnie G. Exum (“the father”) “primary” physical custody of the parties’ minor child (“the child”). We dismiss the appeal as having been taken from a nonfinal judgment.

The parties were divorced by a judgment entered by the trial court in 2010. Pursuant to that judgment, the parties were awarded joint legal custody of the child and the mother was awarded “primary” physical custody of the child. In December 2015, the father filed a petition requesting the trial court to hold the mother in contempt for allegedly violating the divorce judgment. He later amended that petition to request the trial court to award him physical custody of the child.

After a trial at which ore tenus evidence was presented, the trial court entered a judgment declining to hold the mother in contempt but awarding the father “primary” physical custody of the child. In addition, the trial court stated in its judgment that the parties were to submit, pursuant to Rule 82, Ala. R. Jud. Admin., “Child-Support-Obligation Income Statement/Affidavit” forms (Form CS-41) and a “Child-Support Guidelines” form (Form CS-42). The trial court stated further that, once those documents were submitted, it would “issue a separate [child] support order.”

It appears that counsel for the father submitted a Form CS-41 on the father’s behalf, as well as a Form CS-42. The record also contains an unsigned Form CS-41 stating that the mother is unemployed but also purporting, to impute to the mother a monthly income of $1,267. It is not entirely clear, however, who submitted that form. Thereafter, an attorney entered a notice of appearance on behalf of the mother and fíled a motion to set aside the custody-modification judgment, which the trial court denied. After the denial of that motion, the mother filed a notice of appeal without the trial court’s having entered a ruling regarding child support. On appeal, the mother argues that she was not properly served with the father’s petition to modify custody, that the trial court lacked jurisdiction over the modification action, that the trial court applied the wrong legal standard in determining whether to modify custody, and that the trial court erred in failing to hold a hearing on the mother’s motion to set aside the custody-modification judgment.

“[Mjatters of jurisdiction are of such importance that a court may consider them ex mero motu.” Reid v. Reid, 844 So.2d 1212, 1214 (Ala. Civ. App. 2002). “An appeal ordinarily lies only from a final judgment.” Tomlinson v. Tomlinson, 816 So.2d 57, 58 (Ala. Civ. App. 2001). The trial court in Tomlinson, like the, trial court in the present case, had modified a prior custody judgment,.had directed the parties to submit CS-41 forms, and had stated that a child-support award would be made after submission of those forms. The mother in Tomlinson, however, appealed before the trial court had entered any further orders regarding child support. Because the issue of child support had not been resolved, this court dismissed the appeal as having been taken from a nonfmal judgment. 816 So.2d at 58. See also Turner v. Turner, 883 So.2d 233, 234 (Ala. Civ. App. 2003) (lower court’s failure to determine an amount of child support owed by a party rendered a judgment nonfinal). In the present case, like in Tomlinson, the child-support issue remained pending when the mother appealed. Thus, the trial court's .judgment was not a final judgment, and this appeal is due to be dismissed.

APPEAL DISMISSED.

Thompson, P.J., and Thomas, Moore, and Donaldson, JJ., concur.

      . It is noteworthy that the father did not request an award of child support in his petition for modification of custody and, during the trial, testified that he was "ask[ing] nothing for child support.” As noted, however, the father’s counsel submitted Forms CS-41 and CS-42 suggesting that the father did indeed request a child-support award. In any event, we do not believe the ambiguity regarding the father’s child-support request renders the trial court’s judgment, which specifically stated that a determination regarding child support would be made after submission of tire relevant forms, final. See also Blasdel v. Blasdel, 27 So.3d 1288, 1290 n.4 (Ala. Civ. App. 2009) ("Although the husband did not request an immediate order for child support in his complaint for a divorce, our 'supreme court has held that " 'the right to support of a child from its parents is inherent and cannot be waived by the parents even by agreement.’ ” Ex parte State ex rel. Summerlin, 634 So.2d 539, 542 (Ala. 1993) (quoting Willis v. Levesque, 402 So.2d 1003, 1004 (Ala. Civ. App. 1981)).”).


author: THOMPSON, Presiding-Judge.

text:
    Robert Charles BLACKMON IV v. Angelia Deniese BLACKMON
    2150733
    Court of Civil Appeals of Alabama.
    March 17, 2017
    Joseph B. Fellows, Mobile, for appellant.
    Grady R. Edmondson, Mobile, for appel-lee.
   THOMPSON, Presiding-Judge.

Robert Charles Blackmon IV (“the husband”) appeals from a judgment of the Mobile Circuit Court (“the trial court”) dismissing his motion, filed pursuant to Rule 60(b), Ala. R. Civ. P., to set aside the trial court’s judgment of September 4, 2012 (“the 2012 judgment”), which was entered in a postdivorce proceeding between the husband and Angelia Deniese Blackmon (“the - wife”). The motion was filed on September 2, 2015. The grounds for the motion were “fraud perpetrated by [the wife] and her counsel as well as fraud upon the court by the [wife] and the [husband’s] previous attorney(ies).”

On October 15, 2015, the wife filed a motion to dismiss the husband’s motion to set aside the 2012 judgment. On January 29, 2016, the trial court entered a judgment dismissing the husband’s motion. The husband filed a motion to set aside the January 29, 2016, ruling on his Rule 60(b) motion. On April 15, 2016, the trial court held a hearing on the husband’s motion to set aside the judgment dismissing his request to set aside the 2012 judgment. At that hearing, the husband again argued that the 2012 judgment was due to be set aside “under Rule 60(b)(3),” on the ground of fraud perpetrated on the court, the same ground that formed the basis of the initial Rule 60(b) motion. That same day, the trial court entered an order denying the husband’s motion to set aside the January 29, 2016, ruling. The husband filed his notice of appeal on May 27, 2016.

It has long been the law in Alabama that,

“[ajfter a trial court has denied a post-judgment motion pursuant to Rule 60(b), that court does not have jurisdiction to entertain a successive postjudgment motion to ’reconsider’ or otherwise review its order denying the Rule 60(b) motion, and such a successive postjudgment motion does not suspend the running of the time for filing a notice of appeal. We note ... that the Alabama Rules of Civil Procedure do not contain any provision for a ‘motion to reconsider’ a ruling on a Rule 60(b) motion.”

Ex parte Keith, 771 So.2d 1018, 1022 (Ala. 1998).

“‘In other words, a party who has previously filed an unsuccessful motion seeking relief under Rule 60(b) may not properly file a second motion in the trial court that, in effect, requests the trial court to revisit its denial of the first motion, such as by reasserting the grounds relied upon in the first motion. See Wadsworth v. Markel Ins. Co., 906 So.2d 179, 182 (Ala. Civ. App. 2005) (“Successive Rule 60(b) motions on the same grounds are generally considered motions to reconsider the original ruling and are not authorized by Rule 60(b).”).’
“Pinkerton Sec. & Investigations Servs., Inc. v. Chamblee, 934 So.2d 386, 390-91 (Ala. Civ. App. 2005).”

Vardaman v. Vardaman, 203 So.3d 113, 116 (Ala. Civ. App. 2016).

Once the trial court denied the husband’s first Rule 60(b) motion on January 29, 2016, it lost jurisdiction to rule on any successive Rule 60(b) motion or any post-judgment motion filed pursuant to Rule 59, Ala. R. Civ. P., based upon the same grounds. Therefore, the trial court’s April 15, 2016, judgment is void and incapable of supporting an appeal. See Vardaman, supra.

The husband had until March 11, 2016, which was 42 days from January 29, 2016, to file a timely notice of appeal pursuant to Rule 4, Ala. R. App. P., and he failed to do so.

“ ‘Although neither party has questioned this court’s appellate jurisdiction, a lack of appellate jurisdiction resulting from a party’s failure to timely file a notice of appeal “cannot be waived”; indeed, “this court can raise the issue ex mero motu.” Carter v. Hilliard, 838 So.2d 1062, 1063 (Ala. Civ. App. 2002), and Moragne v. Moragne, 888 So.2d 1280, 1283 (Ala. Civ. App. 2004); see also Rule 2(a)(1), Ala. R. App. P. (stating that an appeal shall be dismissed if the notice of appeal is not timely filed to invoke the jurisdiction of the appellate court).’
“Smith v. Smith, 4 So.3d 1178, 1180-81 (Ala. Civ. App. 2008).”

Venturi v. Venturi, 233 So. 3d 982, 983 (Ala. Civ. App. 2016).

Because the husband’s notice of appeal was untimely, this court did not acquire jurisdiction to consider the appeal. Therefore, the appeal must be dismissed.

The wife’s request for an attorney fee on appeal is granted in the amount of $1,000.

APPEAL DISMISSED.

Pittman, Thomas, Moore, and Donaldson, JJ., concur.

      . This court affirmed the 2012 judgment on July 12, 2013, without issuing a written opinion.


author: THOMAS, Judge.'

text:
    BREWTON AREA YOUNG MEN’S CHRISTIAN ASSOCIATION, INC. v. Georgia H. LANIER
    2150914
    Court of Civil Appeals of Alabama.
    March 17, 2017

      Ian D. Rosenthal of Rosenthal Parks LLP, Mobile, for appellant.
    Charles R. Godwin and Timothy J. God-win, Atmore, for appellee.
   THOMAS, Judge.'

On December 19, 2012, Georgia H. Lanier (“the employee”) was preparing to leave the premises of her employer, Brewton Area Young Men’s Christian Association, Inc. (“the employer”), when she fell behind her desk. The employee suffered commi-nuted introchanteric ’ and subtrochanteric fractures in her left hip. The employee sued the employer in the Escambia Circuit Court (“the trial court”), seeking workers’ compensation benefits. After a trial, the trial court entered a judgment concluding that the employee’s injury was compensa-ble, determining that'the employee is permanently and totally disabled, calculating the employee’s, average weekly wage, ordering the employer to pay medical benefits, and awarding the employee temporary and permanent workers’ compensation benefits. The employer appeals. ¡

“Our standard of review in workers’ compensation cases was prescribed by the Legislature in Ala. Code 1975, § 25-5-81(e)(2). We recently set forth that standard, as well as the other applicable presumptions:

‘“When this court reviews a trial court’s factual findings in a workers’ compensation case, those findings will not be reversed if they are supported by substantial evidence. § 25-5-81(e)(2), Ala. Code 1976. Substantial evidence is “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989). Further, this court reviews the facts “in the light most favorable to the findings of the -trial court.” Whitsett v. BAMSI, Inc., 652 So.2d 287, 290 (Ala. Civ. App. 1994), overruled on other grounds, Ex parte Trinity Indus., Inc., 680 So.2d 262 (Ala. 1996). This court has also concluded: “The [1992 Workers’ Compensation] Act did not alter the rule that this court does not weigh the evidence before the trial court.” Edwards v. Jesse Stutts, Inc., 655 So.2d 1012, 1014 (Ala. Civ. App. 1995). However, our review as to purely legal issues is without a presumption of correctness. See Holy Family Catholic School v. Boley, 847 So.2d 371, 374 (Ala. Civ. App. 2002) (citing § 25-5-81(e)(1), Ala. Code 1975).’
“Reeves Rubber, Inc. v. Wallace, 912 So.2d 274, 279 (Ala. Civ. App. 2005).”

Overnite Transp. Co. v. McDuffie, 933 So.2d 1092, 1095-96 (Ala. Civ. App. 2005).

The record discloses the following evidence. The employee testified that she fell behind her desk when she was preparing to leave work for the day, on December 19, 2012. According to the employee, she got up from her chair, pushed the chair back, reached over to the credepza located behind her, desk, and picked up a box of items that she was taking home with her. She said that as she started to move, she remembered tripping: over the chair and falling; she fractured her hip in two places. She testified that she had hit her head when she had fallen and that she had lost consciousness; thus, she said, she could not remember anything that occurred after the fall until the emergency medical personnel arrived, and she could remember only a few things that occurred during, her transport to the emergency room but nothing from the emergency room. The employee admitted that she could not know whether the fractures had occurred before or after she had fallen.

The employee was transported by ambulance to D.W. McMillan Hospital (“the emergency room”). Records -from the emergency room indicate that the employee was conscious upon her arrival and that she provided the history of the injury to the. emergency-room personnel. - The records do not indicate that the employee characterized the injury as work-related; however, the records indicate that the employee “fell at the Y,” which, of course, is the place of her employment. After being treated in the emergency room, where the employee was given, among other things, morphine, the employee was transferred to the Mobile Infirmary, where she underwent surgery to repair the fractures, in her hip. The surgery, which was performed by Dr. Todd Engerson, required the implantation of two rods in the employee’s hip area.

The employee spent just over one week in the Mobile Infirmary recuperating from the surgery. The employee was then transferred to a rehabilitation facility where she underwent physical therapy during her three-week stay. After her discharge from the rehabilitation facility, the employee continued at-home physical therapy for another six weeks. She returned to work on March 11, 2013.

According to the employee, she continued to suffer pain after the conclusion of her physical therapy. Records from Dr. Engerson reveal that the employee, after a period of improvement, indicated in June 2013 that she continued to suffer pain in her groin, buttock, and lateral thigh. Dr. Engerson commented in his notes in June 2013 that the pain the employee was suffering could have been related to both the hip surgery and an irritation of a previous lumbar fusion surgery; he prescribed a narcotic pain reliever for the employee. Dr. Engerson’s notes also mention that the employee suffered a slight limp in April 2013, but the July 2013 note does not contain any such notation.

Dr. Engerson’s deposition was admitted into evidence. He testified that there was no way to tell if the employee’s fractures had occurred on impact with the floor or whether they occurred because of an abnormal position of her leg as she fell. When asked whether the employee’s fractures could have occurred when she simply stood up, Dr. Engerson said that it was possible. However, he went on to explain that “usually there’s got to be something— some underlying process that’s weakened the bone like a stress fracture or a tumor or something like that which I don’t think that she had any known problem prior to [the fall].” According to Dr. Engerson,.the fractures the employee suffered typically require some degree of torque applied to the bone. He explained that “[i]t could be just a slight twist, you know, when you go forward and you twist the leg around and forces get going the wrong way and you could end up in a heap on the ground.” He mentioned that a misstep or tripping over an item could result in the injury suffered by the employee. Dr. Engerson was asked whether the injury the employee had suffered could have aggravated her back condition; he answered “they [sic] certainly could.” He also remarked that a gait abnormality during recovery could cause existing back conditions to exhibit symptoms, but he noted that he did not know whether the employee’s back condition was asymptomatic before the fall.

In July 2013, the employee saw Dr. Clark Metzger, who had performed her previous back surgeries, for a second opinion. Dr. Metzger’s July 15, 2013, notes reflect that he thought that most of the employee’s pain was related to her hip injury; he also diagnosed her with chronic pain syndrome, noting in his records that “she has relatively severe back pain, but she has had [that pain] for years.” Dr. Metzger suggested that a replacement of one of the rods inserted by Dr. Engerson with a shorter rod might reduce the employee’s pain. The employee chose to undergo a second surgery to replace the rod, which Dr. Metzger performed on July 31, 2013. Dr. Metzger’s August 14, 2013, note indicates that the employee stated that she was “thrilled” with the outcome of the surgery, which had reduced her pain. Dr. Metzger released the employee to return to work on August 19, 2013.

The employee saw Dr. Pablo W. Concepcion at Pain Consultants of West Florida (“PC”) for pain management. She was prescribed pain medications and periodic epidural injections; she had a monthly appointment at PC. She admitted that she had been going to PC before her fall for pain resulting from her prior back surgeries. In addition, the records from PC reveal that the employee was treated for pain in areas other than her back or hips over the course of her treatment.

The employee continued to work for the employer after her surgeries. However, she testified that certain duties were added to her job requirements, including writing editorials and advertisements for the local paper and more eommunications-re-lated duties. She complained that she no longer felt welcome at work and that she was often asked when she planned to retire. In January 2014, the employee notified the employer that she would retire effective May 4,2014.

The employee explained that, at first, she did not think that her injury was work-related. She said that she had always understood that workers’ compensation was for “something like maybe climbing a ladder and falling off a ladder. Or reaching for something and pulling it over on top of you.” The employee said that, while she was in the rehabilitation facility, she had been contacted via telephone by a person claiming to be from the employer’s workers’ compensation carrier. She testified that she had asked who had reported that her injury was covered by workers’ compensation; the employee said that the person on the telephone had told her that Steven Dickey, the CEO of the employer, had contacted the carrier to report the accident.

According to the employee, her supervisor, Cathy Green, had told her that her fall was not covered by workers’ compensation. * The employee testified that she had gone to the office to collect her paycheck one day and that Green had told her that the accident was not a work-related accident and that the employee “did not want to file on workers’] comp because it would cause the [employer’s] premium to go up.” The employee also said that Green had told her that the employer would take care of her. Thus, the employee testified, she had informed the workers’ compensation investigator in a second telephone conversation that the accident was not work-related, as Green had instructed.

The employee explained that “[a]s long as I had vacation leave accumulated, sick leave accumulated, personal leave, I was taken care of, I was paid. But when that was up, it was stopped.” The employee admitted that she was paid her full salary through February -2013; she mentioned that she was informed when she received her “last full paycheck” that the following paycheck would be for a lesser amount, but she did not indicate when, or if, she had received a paycheck for a lesser amount or if she had not been paid for any period, during her convalescence. The employer did . not pay the employee any temporary workers’ compensation benefits and did not pay for any medical care.

Green testified that she was at work on the day of the employee’s fall. She said that she had heard the employee moaning and . that she had’ called out to the 'front desk to find out what was wrong. When Daniel McNamara, a coworker, answered, Green said, he told her that she needed to come to the front desk. Green testified that the employee was conscious and lucid after the fall. According to Green, she had asked the employee what was wrong and whether she should call for an ambulance and that the employee had answered that her leg was injured and indicated that Green should calífor an ambulance.

Green denied having instructed the employee to tell the workers’, compensation investigator that the fall was not work-related. Although she admitted having had a conversation with the employee when she came to pick up her check, Green said that the employee had told her that she had already informed the .workers’ compensation investigator that the fall was not work-related. Green also testified that the employee had told her that the doctor had said “that her bone- splintered outwards and her leg broke out from under her.”

McNamara testified that he was present the day of the fall. He explained that he was only a few feet from the employee when she fell and that he was looking at her when the fall occurred. According to McNamara, the employee was not walking when she fell and he did not see her trip on anything. He said that he was sitting in the chair when she fell when she attempted to pick, up a box; He testified that the employee did not hit her head when she fell, but he admitted that she was in a lot of pain after the fall.

The employer first argues that the trial court’s finding ■' that the employee’s injury was caused by her tripping over a chair is not supported by substantial evidence. That is,‘the employer challenges the trial court’s conclusion that the employee proved legal causation of her injury. See Equity Grp.-Alabama Div. v. Harris, 55 So.3d 299, 308-09 (Ala. Civ. App. 2010) (quoting Hammons v. Roses Stores, Inc., 547 So.2d 883, 885 (Ala. Civ. App. 1989)) (explaining that “‘[£jor an injury to be compensable, the employee must establish jboth legal and medical causation’ ” and describing “legal causation” as proof “ ‘that an accident arose out of, and in the course of employment’ ”). The employer specifically contends that the trial court could not have found the employee’s testimony to be of “sufficient weight and quality” to support its finding because, the employer con-ténds, the employee’s testimony was inconsistent with the allegations made in her complaint, with certain statements in her own testimony indicating that she could not remember much that happened after the fall, and with her alleged admission to Green that her doctor had told her that her leg could have broken when she stood up. The employer also points out that the employee testified that she had hit her head when she fell, which, the employer says, proves either that’the-employee was not a reliable witness because of her head injury or that her memory of the fall is unreliable because she recalls having hit her head when the medical records indicate that she did not. Furthermore, the employer states, the employee’s version of events is directly contradicted by the testimony provided by McNamara, who witnessed the fall.

The evidence regarding the cause of the fall was disputed. As -noted above, the employee stated that she recalled tripping over the chair before her fall. McNamara testified differently, stating that the employee just fell and that she had not tripped on the chair. In addition, the employee testified that she had hit her head when she fell and that she did not recall much of what had happened after the fall. The medical records indicate that the employee had not suffered a head injury, which, as the employer suggests, could be used to undermine the employee’s credibility about the other events surrounding the fall. Finally, Green testified that the employee had admitted to her that her doctor had said that her fractures occurred when she arose from her chair, indicating that the employee did not believe that she had tripped on the chair. Dr, Engerson, however, testified that a spontaneous fracture like those suffered by the employee, although possible, was not likely to have occurred.

We must affirm a trial court’s finding-if it is supported by substantial evidence. Ala. Code 1975, § 25-5-81(e)(2). The employer is correct that “substantial evidence” must be evidence of sufficient “ ‘weight and quality’ ” to allow persons to “ ‘reasonably infer the existence of the fact sought to be proven.’” Ex parte Trinity Indus., Inc., 680 So.2d 262, 268 (Ala. 1996) (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989)). However, we are mindful that “ ‘[t]his statutorily mandated scope of review does not permit this court to reverse the trial court’s judgment based on a particular factual finding on the ground that substantial evidence supports a contrary factual finding; rather, it permits this court to reverse the trial court’s judgment only if its factual finding is not supported by substantial evidence.’” Equity Grp-Alabama Div., 55 So.3d at 305-306 (quoting Landers v. Lowe’s Home Ctrs., Inc., 14 So.3d 144, 151 (Ala. Civ. App. 2007) (opinion on original submission)).

Much of the employer’s contention that the employee’s testimony is not of “sufficient weight and quality” turns on its insistence that the trial court could not have found the employee’s testimony truthful or credible. Of course, in cases in which a trial court takes oral testimonial evidence, ‘the trial court is the sole judge of the facts and of the credibility of witnesses, and the trial court.should accept only that testimony it considers to be worthy of belief.’ ” Engineered Cooling Servs., Inc. v. Star Serv., Inc. of Mobile, 108 So.3d 1022, 1027 (Ala. Civ. App. 2012) (quoting Woods v. Woods, 653 So.2d 312, 314 (Ala. Civ. App. 1994), citing in turn Ostrander v. Ostrander, 517 So.2d 3 (Ala. Civ. App, 1987)). “ ‘This court is. precluded from weighing the evidence presented before the trial court.’” Carquest Auto Parts & Tools of Montgomery, Alabama, Inc. v. Waite, 892 So.2d 422, 426 (Ala. Civ. App. 2004) (quoting Fryfogle v. Springhill Mem’l Hosp., Inc., 742 So.2d 1255, 1258 (Ala. Civ. App. 1998), aff'd, 742 So.2d 1258 (Ala. 1999)). Put another way, “ ‘[t]he resolution of conflicting evidence is within the exclusive province of the trial court, and this court is forbidden to invade that province upon review.’ ” Hooker Constr., Inc. v. Walker, 825 So.2d 838, 842 (Ala. Civ. App. 2001) (quoting Mayfield Trucking Co. v. Napier, 724 So.2d 22, 25 (Ala. Civ. App. 1998)).

Although the evidence regarding the cause of the employee’s fall was disputed and, at times, might have appeared inconsistent, the trial court chose to believe-the employee’s testimony about the fall. Similarly,- the trial-court, perhaps in light of Dr. Engerson’s testimony, must have chosen to disbelieve the testimony that the employee had told Green that her fractures had occurred when she stood up. The evidence presented, even with its conflicts, is substantial evidence supporting the trial court’s finding that the employee tripped over the chair, resulting in her fall. We therefore reject the employer’s argument, and we conclude that the trial court’s finding that the employee’s fall resulted from her tripping over a chair is supported by substantial evidence.

The employer next contends that the trial court erred in concluding that it had received proper notice under Ala. Code 1975, § 25-5-78. The employee admittedly did not provide written notice as required by the statute. As-the employer concedes, in the absence of the written notice contemplated by the statute, actual knowledge of an injury will suffice. See Ex parte Brown & Root, Inc., 726 So.2d 601, 602. (Ala. 1998). However, the employer contends that, although it knew that the employee fell while at work (i.e., in the course of the employment), the employer had no notice that the employee was claiming that the injury she suffered was work-related (i.e., arose out of the employment). To support its claim of a lack of notice, the employer points out that the employee never told Green that her fall was work-related and relies on evidence indicating that the employee had not indicated that her fall and resulting injury were work-related on certain medical forms or when questioned by the workers’ compensation investigator.

As noted above, however, the employer notified its workers’ compensation carrier of the employee’s fall and the carrier conducted an investigation. The trial court specifically pointed out in its judgment that certain medical records contained a form from the workers’ compensation investigator requesting information, and the record clearly reflects that a workers’ compensation investigator contacted the employee at least twice. We must determine, then, whether the record reflects that the employer had actual knowledge of the employee’s injury.

In Ex parte Singleton, 6 So.3d 515, 519 (Ala. 2008), our supreme court discussed the requirement of notice:

“In Ex parte Brown & Root, Inc., 726 So.2d 601, 602 (Ala. 1998), this Court noted that § 25-5-78, Ala. Code 1975, ‘requires that an employer be given written notice of a job-related injury so that the employer can “make a prompt examination, provide proper treatment, and protect itself against simulated or exaggerated claims.” ’ (Quoting Russell Coal Co. v. Williams, 550 So.2d 1007, 1012 (Ala. Civ. App. 1989).) The Court then recognized that ‘written notice is not required if the employer had actual knowledge that the employee was injured in the scope of his or her employment.’ 726 So.2d at 602. Continuing, the Court stated:
“ ‘The employer must have actual knowledge that the employee’s injury was connected to the employee’s work activities. Wal-Mart Stores, Inc. v. Elliott, 650 So.2d 906, 908 (Ala. Civ. App. 1994)]. “The fact that an employer is aware that an employee [suffers from] a medical problem is not, by itself, sufficient to charge the employer with actual knowledge.” Russell [Coal Co. v. Williams], 550 So.2d [1007,] 1012 [ (Ala. Civ. App. 1989) ].’
726 So.2d at 602.”

The employer specifically contends that it was not apprised of the connection between the employee’s fall and resulting injury and her employment. Thus, it says, it did not receive proper notice via its knowledge of the fall itself.

This court, in Russell Coal Co. v. Williams, 550 So.2d 1007, 1012 (Ala. Civ. App. 1989), examined the reason behind the requirement of notice and when written notice might be excused. We noted that “[t]he Supreme Court of Alabama has stated that the aim of actual notice is ‘to advise the employer that a certain employee, by name, received a specified injury in the course of his employment on or about a specified time, at or near a certain place specified.’” Williams, 550 So.2d at 1012 (quoting Baggett v. Builders Transp., Inc., 457 So.2d 413, 415 (Ala. Civ. App. 1984), quoting in turn Ex parte Stith Coal Co., 213 Ala. 399, 400, 104 So. 756, 757 (1925)). After notice is provided, this court noted, the employer is able to take steps to investigate the claim so that it can mount a defense against it, if warranted. Williams, 550 So.2d at 1012 (citing Beatrice Foods Co. v. Clemons, 54 Ala.App. 150, 306 So.2d 18 (1975)).

The record reflects that, despite any question the employer might have had about whether the employee’s fall was related to. her employment, the employer notified its workers’ compensation carrier of the accident via a first report of injury. The carrier conducted an investigation, contacting the employee at least twice and seeking information from the medical professionals who provided care to the employee. The employer acted in a manner consistent with having received notice of the injury, and we cannot perceive how the employer was prejudiced in any way in this instance by the employee’s alleged failure to make known to the employer through written notice or otherwise that she claimed that her fall and the resulting injury were related to her employment. We therefore reject the employer’s contention that it did not receive sufficient notice of the injury under the facts and circumstances of the present case.

The employer next argues that the trial court erred by determining that the employee’s injury should be treated as a nonscheduled injury based on the trial court’s determination that the employee’s back pain had been aggravated by her fall or that she had suffered from an altered gait that worsened the employee’s preexisting back condition. The employer’s argument begins with the premise that the employee suffered a scheduled-member injury to her leg. However, fractures of the exact type suffered by the employee in the present case were determined to be injuries to an employee’s hip and therefore to a nonscheduled part of the body in Crown Textile Co. v. Dial, 507 So.2d 522, 523 (Ala. Civ. App. 1987). Therefore, we need not consider wether the employee’s back pain sufficed to take her outside of the schedule under Ex parte Drummond Co., 837 So.2d 831 (Ala. 2002), or whether her- altered gait had resulted in a successive compensable injury to her back under cases like Ex parte Pike County Commission, 740 So.2d 1080 (Ala. 1999).

We turn next to the employer’s argument that the trial court erred in computing the employee’s average weekly wage. At trial, the parties stipulated that the employee’s weekly wage, exclusive of fringe benefits, was $582.70. The testimony at trial established that the employer provided health insurance at no expense to the employee at a cost of $462.00 per month (or $106.33 per week) and that it contributed 12% of her annual salary (or $69.92 per week) to a retirement plan on her behalf. The trial court calculated the average weekly wage to be $759.24.

The employer argues that its retirement-plan contribution should not be considered part of the employee’s average weekly wage because, it says, the definition of average weekly wage in Ala. Code 1975, § 25-5-1(6),' explicitly includes as fringe benefits “only the employer’s portion of health, life, and disability insurance premiums.” The employer also contends that the employer’s contributions to the retirement plan ■were not taxable to the employee and would therefore not satisfy the requirement in § 25-5-1(6) that, to be considered part of the weekly wage, an employee’s earnings must be subject to federal income taxation. However, the employer never made these arguments to the trial court, and we are therefore precluded from considering them. Roblero v. Cox Pools of Southeast, Inc., 133 So.3d 904, 910 (Ala. Civ. App. 2013); see also Norman v. Bozeman, 605 So.2d 1210, 1214 (Ala. 1992) (“Our review is limited to the issues that were before the trial court — an issue raised on appeal must have first been presented to and ruled on by the trial court.”).

The employer’s final argument is that the trial court erred in awarding the employee temporary-total-disability (“TTD”) benefits and permanent-total-disability (“PTD”) benefits during periods after her injury- when she was either working or receiving her total salary while recuperating. See' Ala. Code 1975, § 25-5-57(c)(3) (“If an employer continues the salary of an injured .employee during the benefit period or pays similar compensation during the benefit period, the employer shall be allowed a setoff in weeks against the compensation owed under this article.”); United States Steel Corp. v. McBrayer, 908 So.2d 947, 952 (Ala. Civ. App. 2005) (“[U]n-der Alabama law an injured employee is not entitled to TTD benefits with respect to full-time work intervals during the recovery period.”); and Mead Paper Co. v. Brizendine, 575 So.2d 571, 574 (Ala. Civ. App. 1990) (“[I]f the employee can resume his trade then it is obvious that he is not .permanently, totally disabled.”). After her December 19, 2012, injury, the employee returned to work on March 19, 2013, and she worked until her second surgery on July 31, 2013, after which she convalesced for just over two weeks. She returned to work after her second surgery on August 19, 2013, and she worked until her retirement on May 4, 2014. The trial court awarded the employee TTD benefits from December 19, 2012, to July 10, 2013 (the date of maximum medical improvement) and awarded the employee PTD benefits from July 13, 2013, to the date of trial. The employee concedes that the judgment is due to be reversed- in part and the cause remanded for “a clarification of the periods [the employee] is owed [TTD] benefits and whether those benefits should include fringe benefits.” See § 25-5-1(6) (“Average weekly earnings shall not include fringe benefits if and only if the employer continues the benefits during the period of time for which compensation is paid.”).

We have concluded that the trial court’s determination that the employee proved legal causation is supported by substantial evidence and that the trial court did not err in awarding compensation outside the schedule for the employee’s hip fractures. Thus, , we affirm those aspects of the trial court’s judgment, We cannot consider the employer’s argument that its retirement contributions should not be included in the employee’s earnings for purposes of computing the average weekly wage because the employer asserts that argument for the first timé on appeal. The employee concedes that the award of TTD and PTD benefits during periods when the employee had resumed her employment or was being paid her full salary must be reversed. Accordingly, the trial court’s judgment is reversed insofar ás it awarded the employee TTD and PTD benefits, and the cause is remanded for consideration of the dates for which the employee is entitled to TTD benefits and the determination of the proper amount of those benefits.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

Thompson, P.J., and Pittman, Moore, and Donaldson, JJ., concur.

      . The employee described the chair as a wheeled chair having "spiral” legs that extended out further than the seat;- the employee’s counsel referred to the legs as "spokes.” At trial, the employee and a coworker, Daniel McNamara, both indicated that the chair was similar to the chair occupied by the court reporter.

      . The complaint alleges that the employee suffered a work-related injury on December 19, 2012, when she "twisted her left leg as she stumbled on the floor, desk and/or chair.”

      . However, as the employee notes in her brief, the trial court apparently made a computation error and the actual wage should be $758.95 ($582.70 + $106.33 + $69.92 = $758.95).

      . Section 25-5-1(6) reads, in its entirety, as follows:
      "(6) Wages or weekly wages. The terms shall in all cases be construed to mean 'average weekly earnings,’ based on those earnings subject to-federal income taxation and reportable on the Federal W-2 tax form which shall include voluntary contributions made by the employee to a tax-qualified retirement program, voluntary contributions to a Section 125 cafeteria program, and fringe benefits as defined herein. Average weekly earnings shall not include fringe benefits if and only if the employer continues the benefits during the period of tíme for which compensation is paid. ‘Fringe benefits’ shall mean only-the employer’s portion of health, life, and disability insurance premiums.”


author: MOORE, Judge. DONALDSON, Judge,

text:
    K.T. v. B.C.
    2160180 and 2160181
    Court of Civil Appeals of Alabama.
    March 17, 2017
    Robert G. Poole of Whittelsey, Whittel-sey, Poole & Corley, P.C., Opelika, for appellant.
   MOORE, Judge.

K.T. (“the mother”), who is herself a minor, appeals from a judgment of the Lee Juvenile Court (“the juvenile court”) declaring S:T. and E.B. (“the children”) dependent and awarding joint legal custody of the children to the mother and the children’s paternal grandmother, B.C. (“the paternal grandmother”), awarding physical custody of the children to the mother, and awarding specified visitation to the paternal grandmother. We dismiss the appeals.

Procedural History

On April 1, 2016, the paternal grandmother filed two separate verified petitions alleging that the children were dependent; those petitions were assigned case number JU-16-137.01 and case number JU-16-138.01. After the mother signed a stipulation of dependency, the juvenile court rendered a single judgment that was entered in both case number JU-16-137.01 and case number JU-16-138.01 on November 1, 2016, declaring each child dependent and awarding joint legal custody of each child to the mother and the paternal grandmother, awarding physical custody of each child to the mother, and awarding specified visitation to the paternal grandmother. On November 11, 2016, the mother filed a postjudgment motion in each case alleging that the juvenile court lacked subject-matter jurisdiction, that proper service had not been perfected, that her counsel had not provided her with adequate representation, and that there was not sufficient evidence to support the juvenile court’s judgment. On November 23, 2016, the juvenile court entered separate orders providing that the postjudgment motions were “granted in part” and further providing:

“The • [November 1, 2016, judgment] is hereby set aside as a final Order, but the terms thereof remain in place, pen-dente lite, to determine issues of service related to the mother’s unique status as a minor herself.”

On December 7, 2016, the mother filed notices of appeal to this court. On December 12, 2016, the juvenile court purported to set the cases for a hearing on the service issue on January 9, 2017.

Discussion

Initially, we point out that, “[u]n-der our caselaw, a formal determination by a juvenile court of a child’s dependency coupled with an award of custody incident to that determination will give rise to an appealable final judgment even if the custody award is denominated as a ‘temporary’ award and further review of the case is envisioned.” J.J. v. J.H.W., 27 So.3d 519, 522 (Ala. Civ. App. 2008). Because, in the present case, the juvenile court’s judgment declared the children dependent and determined their custody, the judgment was a final judgment.

The mother filed timely post-judgment motions, which the juvenile court purported to “grant in part” by setting aside the judgment in order to conduct a heai-ing and to decide the service issue argued by the mother. We have held that an order indicating that a trial court intends to hold a hearing on an issue raised in a postjudgment motion is not a ruling on the merits of the issue. See Smith v. Smith, 4 So.3d 1178, 1180-81 (Ala. Civ. App. 2008). Rule 1(B), Ala. R. Juv. P., provides, in pertinent part:

“All postjudgment motions, whether provided for by the Alabama Rules of Civil Procedure or the Alabama Rules of Criminal Procedure, must be filed within 14 days after entry of order or judgment and shall not remain pending for more than 14 days, unless, within that time, the period during which a postjudgment motion may remain pending is extended:
“(1) By -written order of the juvenile court on its own motion, or upon motion of a party for good cause shown, for not more than 14 additional days; or
“(2) Upon the express 'written consent of all the parties, which consent shall appear of record; or
“(3) By the appellate court to which an appeal of the judgment would lie.”

In substance, the juvenile court entered written orders extending the time to rule on the service issue raised in the mother’s postjudgment motions, which was allowable. However, the juvenile court purported to retain jurisdiction to address the issue beyond the “14 additional days” allowed by Rule 1(B)(1), which it could not do. Under the circumstances, pursuant to Rule 1(B), the postjudgment motions could not remain pending after December 12, 2016, the date upon which they were deemed denied by operation of law. At that point, the judgment became appeal-able and the notices of appeal filed by the mother on December 7 became effective. See Rule 4(a)(5), Ala. R. App. P.

On appeal, the mother reiterates the arguments raised in her postjudgment motions. We find the mother’s argument regarding improper service to be disposi-tive.

Rule 1(A), Ala. R. Juv. P., provides, in pertinent part: “If no procedure is specifically provided in these Rules or by statute, the Alabama Rules of Civil Procedure .shall be applicable to those matters that are considered civil in nature and the Alabama Rules of Criminal Procedure shall be applicable to those matters that are considered criminal in .nature.” Rule 13, Ala. R. Juv. P., which provides the rules for service of process in dependency cases, does not address the issue of service of process on a minor parent. Therefore, we look to the Alabama Rules of Civil Procedure, specifically Rule 4(c)(2), Ala. R. Civ. P., which provides that service of process shall be made upon a minor “by serving any one of the following: the father, the mother, the guardian, the individual having care of the minor or with whom the minor lives, or the spouse, if the minor is married, and, if the minor is over the age of sixteen (16) years, by also serving the minor personally.”

The record reveals that the mother, who is a minor and 'who was over the age of 16 years when the underlying dependency actions were initiated, was served personally with process. The record indicates, however, that none of the other persons identified in Rule 4(c)(2) were served with process. We recognize that the mother appeared and entered into ah agreement while represented by a guardian ad litem. However, in Roberts v. Hall, 373 So.2d 1103, 1103-04 (Ala. Civ. App. 1979), this court held that, although the minor in that case, by and through her court-appointed guardian ad litem, had filed an answer and had entered into an agreement upon which the trial court’s judgment had been based, that’judgment was void because service had not been properly perfected under Rule 4(c)(2), Ala. R. Civ. P. The court further held that a minor may not waive the service requirements of Rule 4(c)(2). Id. ' Indeed, this court held that the trial court in Roberts had not acquired jurisdiction over the minor and, therefore, that its order appointing the guardian ad litem was void, that the minor’s answer, and the agreement were of no effect, and that the trial court’s judgment, which had been, entered based upon that agreement, was void. Id.

Similarly, in the present case, because the mother’s “father,. ... mother, ,.. guardian, [or] the individual having care of the [mother] or with whom the [mother] lives” was not served with process in this matter, service of process was not perfected in accordance with Rule 4(c)(2) and, thus, the juvenile court never obtained jurisdiction over the mother. Therefore, the juvenile court’s appointment of the guardian ad litem is void, the dependency agreement executed by the mother is of no effect, and the juvenile court’s judgment based upon that agreement is void. “A void judgment will not support an appeal, and ‘an appellate' court must dismiss ah attempted appeal from such a void judgment.’ ” Colburn v. Colburn, 14 So.3d 176, 179 (Ala. Civ. App. 2009) (quoting Vann v. Cook, 989 So.2d 556, 559 (Ala. Civ. App. 2008)). Accordingly, we dismiss the mother’s appeals, albeit with instructions to the juvenile court to set aside its void judgment,

2160180 — APPEAL DISMISSED WITH INSTRUCTIONS.

2160181 — APPEAL DISMISSED WITH INSTRUCTIONS.

Thompson, P.J., and Pittman and Thomas, JJ., concur.

Donaldson, J., concurs.in the result, with writing.

DONALDSON, Judge,

concurring in the result.

I believe that the appeals should be dismissed because K.T. (“the mother”) has appealed from nonfinal orders. “An appeal will ordinarily lie only from a final judgment; that is, a judgment that conclusively determines the issues before the court and ascertains and declares the rights of the parties.” Palughi v. Dow, 659 So.2d 112, 113 (Ala. 1995).

The juvenile court entered an identical final judgment in each case on November 1, 2016 (“the'final judgments”). The mother filed timely postjudgment motions on November 11, 2016, seeking to vacate the final judgments. See Rule 1(B), Ala. R. Juv. P. One of the grounds argued by the mother in support of her motions was that she had not been properly served. On November 23, 2016, the juvenile court entered an electronically generated order in each case addressing the postjudgment motions. The November 23, 2016,, orders are titled “ORDER REMOVING THE FINALITY OF THE PRIOR ORDER.” The first sentence of each order reads: “ALTER OR AMEND filed by [the mother’s. last and first names] is hereby GRANTED IN PART.” The style and phrasing of the first sentence of the orders appear to have been automatically generated by the electronic-filing system provided to the trial courts. The remainder of the electronic orders, however, including the titles, appears: to have been created by the trial court and contains the. following:

“The Order enforcing Dependency Agreement of November 1, 2016 is hereby set aside as a final Order, but the terms thereof remain in place, pendente lite, to determine issues of service related to the mother’s unique status as a minor herself.”

I agree that in some cases an order that purports to “grant” a postjudgment motion but that actually only sets a hearing on the motion is ineffective. Smith v. Smith, 4 So.3d 1178, 1181 (Ala. Civ. App. 2008). The first sentence of the November 23, 2016, orders. purporting to grant the post-judgment motions “in part” is confusing. See Venturi v. Venturi, [Ms. 2150279, Sept. 16, 2016] — So. 3d — (Ala. Civ. App. 2016)(Donaldson, J., concurring specially) (observing the confusion that might result from the automatically generated language used in the electronic-filing system provided to the trial courts). Despite the first sentence, however, I read , the remaining portions of the November 23, 2016,' orders as specifically vacating the final judgments by setting them aside. Athough insufficiency of service was also a ground raised in support of the postjudgment motions, the sufficiency of service on the mother must be addressed before the matters can further proceed • after the vacation of the final judgments, as noted by the trial court in the November 23, 2016, orders: ■

“Sufficiency of service has been put into question. While dependency cases may proceed when otherwise necessary persons cannot be found it is not clear at this point and time whether the facts support the need for additional service or whether the present service is adequate. The Court will set a hearing on those Issues by separate order. Until such times the parties shall abide by the terms of the Dependency agreement entered into by the mother [on] October 31, 2016.”

Therefore, despite the “granted in part” language in the first sentence of the November 23, 2016, orders, I construe the orders as vacating the final judgments and entering nonappealable pendente lite orders. P.B. v. P.C., 946 So.2d 896, 898 (Ala. Civ. App. 2006) (pendente lite orders are not final judgments). Accordingly, I would dismiss the appeals, but not for the reasons expressed in-the main opinion.

      . The mother filed her postjudgment motions on November 11, 2016. Rule 1(B), Ala. R. Juv. - P., provides that no postjudgment motion shall "remain pending for more than 14 days, unless, within that time, the period during which a postjudgment motion may remain pending is extended .... ” Friday, November 2S, 2016, was designated as a state holiday by the Governor and, thus, was a "legal holiday.” Seé Rule 6(a), Ala. R. Civ. P. Because November 26 and 27, 2016, fell on a Saturday and a Sunday, the initial 14-day period for the juvenile court to rule on the mother’s postjudgment motions was extended to November 28, 2016, See Williamson v. Fourth Ave. Supermarket, Inc., 12 So.3d 1200, 1203-04 (Ala. 2009) (construing analogous language in Rule 59.1, Ala. R. Civ. P.); see also Rule 6, Ala.’R. Civ. P.- The juvenile court, however, extended the time for ruling on those motions an additional 14 days, see Rule 1(B)(1), Ala. R. Juv. P„ but, because the juvenile court did'not rule within that additional 14-day period, the motions were deemed denied by operation of law on December 12, 2016.

      . Although doing so was not necessary to the disposition of this appeal, this court has examined the issue of subject-matter jurisdiction and has determined that no jurisdictional defect has been proven. See, e.g., W.T.H. v. M.M.M., 915 So.2d 64, 71-72 (Ala. Civ. App. 2005); and M.W.H. v. R.W., 100 So.3d 603, 606-07 (Ala. Civ. App. 2012).

      . , In 1979, former Rule 4(c)(2), Ala. R. Civ. P., required service on an "infant” if the infant was over the age of 12 years.


text:
    Brianna HORTON v. Bria Monique HINTON
    2150631
    Court of Civil Appeals of Alabama.
    March 24, 2017

      Albert Jones of The Law Office of Attorney A1 Jones & Associates, P.C., Tuscaloosa, for appellant.
    James R. Gillum of Williams & Associates, Birmingham, for appellee.
   PITTMAN, Judge.

Brianna Horton appeals from a judgment of the Tuscaloosa Circuit Court dismissing her personal-injury action as a sanction for disregarding the requirements of the discovery process. We affirm the trial court’s judgment.

In February 2015, Horton sued Bria Monique Hinton, alleging that Hinton had negligently or wantonly operated an automobile in a manner so as to strike Horton. Horton also asserted that Hinton’s actions amounted to outrageous conduct and that Horton had suffered emotional distress as a result of that alleged conduct.

In June 2015, Hinton filed a motion to dismiss Horton’s action, alleging that Horton had failed to respond to interrogatories and requests for production of documents, that the trial court had entered an order compelling Horton to respond to those discovery requests, and that Horton had failed to comply with the trial court’s order. Apparently, after Hinton had filed her motion to dismiss, Horton responded to the discovery requests, and the trial court entered an order denying Hinton’s motion to dismiss as moot.

The record indicates that, subsequently, Hinton scheduled Horton’s deposition for a date in October 2015, that Hinton later canceled that deposition at Horton’s request, that Hinton sent two letters to Horton’s counsel requesting potential dates for the rescheduling of Horton’s deposition, and that Horton failed to respond to those letters. Accordingly, Hinton chose a new date for Horton’s deposition and issued a new notice of deposition. On the date set for Horton’s deposition, Hinton’s counsel traveled from Birmingham to Tuscaloosa to depose Horton, but neither Horton nor her- counsel appeared for the deposition. There is no explanation in the record as to why Horton and her counsel failed to appear.

In response to a motion to compel, the trial court entered an order directing Horton to make herself available for deposition within 21 days “or be subject to possible dismissal” of her action. Hinton rescheduled and re-noticed Horton’s deposition, and, although Horton’s counsel appeared at the scheduled time and location, Horton did not. Accordingly, Hinton filed a motion to dismiss Horton’s action.

One month after Hinton had filed her motion to dismiss, to which Horton had not responded, the trial court entered a judgment dismissing the action. Thereafter, Horton filed a postjudgment motion requesting the trial court to “reconsider” that ruling. In support of her motion, Horton submitted an affidavit that had been executed by her mother, who attested that she had attempted to drive Horton to the deposition but had gotten stuck in traffic. She also attested, somewhat vaguely, that:

“... My phone number was [a previous telephone number], but I was having trouble with that phone and my attorney did not know.
“... I was using another phone with [a different telephone number],
“... My attorney did not know this number, nor that I was having trouble with the other phone.
“... I called my attorney to inform him of the Interstate traffic jam and that I would be to the deposition shortly. My attorney informed me that he had attempted to call me on my old number, but he could not get me and that the deposition was cancelled.”

Horton’s postjudgment motion also indicates that her attorney had failed to attend the hearing on Hinton’s motion to dismiss. The trial court denied Horton’s post-judgment motion, and Horton appealed.

Rule 37(b), Ala. R. Civ. P., authorizes a trial court to dismiss an action as a sanction against a party who violates an order compelling him or her to provide or permit discovery. Similarly, Rule 37(d), Ala. R. Civ. P., authorizes dismissal as a sanction for a party’s failure to answer interrogatories or' requests for production or to attend his or her properly noticed deposition. “The choice of discovery sanctions is within the trial court’s discretion and will not be disturbed on appeal absent gross abuse of discretion.”' Iverson v. Xpert Tune, Inc., 553 So.2d 82, 87 (Ala. 1989).

Our supreme court has made it clear that “ “willfulness’ on the part of the noncomplying party is a key factor supporting a dismissal” as a sanction for failing to respond to discovery requests or to comply with orders compelling discovery. Id. at' 87. “If one party has acted with willful and deliberate disregard of reasonable and necessary requests for the efficient administration of justice, the application of even so. stringent a sanction as dismissal is fully justified and should not be disturbed.” Id.

Early in the present action, Horton failed to timely respond to Hinton’s written discovery requests, forcing the trial court to become involved and to issue an order compelling Horton to provide responses. Horton,'however, failed to comply with that order until after Hinton had filed a motion to dismiss Horton’s action, causing the trial court to again become involved.

After Hinton had noticed Horton’s deposition the first time, Horton asked that it be rescheduled, a request that Hinton accommodated by canceling the deposition. Horton, however, failed to respond to multiple requests for convenient dates for the rescheduling of her deposition, which prompted Hinton to unilaterally .choose a date and to issue a new notice of deposition. Horton and her .counsel, however, failed to appear for the deposition as noticed, after Hinton’s counsel had: traveled from Birmingham to Tuscaloosa to depose Horton. There is absolutely no explanation in the record (or in Horton’s appellant’s brief to this court) as to why she-failed to attend that deposition.

Horton’s failure to attend her deposition prompted yet another motion to compel and the trial court’s involvement in the discovery process. The trial court entered an order compelling Horton to appear for deposition, but Horton failed to comply with that order, forcing Hinton to file another motion to dismiss. Horton, however, did not respond to that motion until aftér the trial court had granted it. See generally Bradley v. Town of Argo, 2 So,3d 819, 823 (Ala. 2008) (suggesting that a motion to alter, amend, or vacate a judgment should not, without a reasonable explanation, be utilized to submit evidence that could have been submitted before the judgment was entered). Even then, Horton herself did not provide an affidavit explaining her failure to attend her deposition. Rather, her mother submitted an affidavit indicating that Horton had failed to provide her attorney with accurate contact information and referencing a telephone call Horton’s mother had made to Horton’s attorney at some unspecified point in time after the deposition had been canceled.

In Napier v. McDougall, 601 So.2d 446, 448 (Ala. 1992), our supreme court affirmed the dismissal of an action as a sanction for the plaintiffs failure to provide. answers to written discovery requests, noting that “nothing was filed with the court (no answers, no , explanation for past failures to answer, and no request for additional time) until 9 days after the case had been dismissed, when [the plaintiff] filed [a] motion for relief from judgment.” As'in Napier, the record in the present case demonstrates a consistent failure on Horton’s part, without'adequate excuse, to properly comply with the requirements of the discovery process. See also Tri-Shelters, Inc. v. A.G. Gaston Constr. Co., 622 So.2d 329, 330 (Ala. 1993) (affirming a trial court’s entry of a default judgment against a defendant as a sanction for failing to provide discovery, which the trial court had described as typifying “‘an absolute disregard for any time standards regarding discovery, differential case management or docketing’ ”); and Bowman v. May, 678 So.2d 1135, 1136 (Ala. Civ. App. 1996) (affirming dismissal of an action as a sanction for the plaintiffs failure to make himself available for deposition, noting that the plaintiff had “not complied with many discovery requests except upon orders from the [trial] court” and that, even after such orders- had been entered, the plaintiff, without adequate excuse, had “been less tb,an diligent in responding to discovery requests”).

Based on the record and Horton’s arguments, we cannot conclude that the trial court erred in finding that Horton’s con-duet rose to the level of “willfulness” recognized by the supreme court in Iverson, Napier, and their progeny. Accordingly, the trial court did not act outside its discretion in dismissing Horton’s action, and its judgment is due to be affirmed.

AFFIRMED.

Thompson, P.J., and Thomas, Moore, and Donaldson, JJ., concur.

      . The court can only assume that Horton’s mother’s references to "my attorney” are intended to refer to Horton's attorney. There is no indication that Horton's mother is a party in this action.

      . Horton claimed that her attorney "did not see” the order setting the date for the hearing. Although she did not submit any evidence supporting that assertion, Horton pointed out that an initial order, which had set a hearing date for Hinton’s motion to dismiss, had been followed almost immediately by an order moving the hearing to an earlier date, She claimed that her counsel was aware of the first order but that the second order "was not detected for some reason.”