author: BOLIN, Justice. COBB, Chief Justice

text:
    Rosalyn KENDALL v. UNITED SERVICES AUTOMOBILE ASSOCIATION.
    1061472.
    Supreme Court of Alabama.
    May 15, 2009.

      Richard F. Horsley and Lindsey O. Hill of King, Horsley & Lyons, LLC, Birmingham, for appellant.
    W. Evans Brittain of Ball, Ball, Matthews <& Novak, P.A., Montgomery, for appellee.
   BOLIN, Justice.

Rosalyn Kendall appeals from a summary judgment in favor of United Services Automobile Association (“USAA”) on her claim seeking underinsured-motorist (“UIM”) benefits.

On December 17, 2002, Rosalyn Kendall was operating her vehicle on Highway 143 in Elmore County (“the County”) when Angelia Mercer, an employee of the El-more County District Attorney’s office, failed to stop at a red light and collided with Kendall’s vehicle. Mercer was acting within the line and scope of her employment with the County at the time of the accident. Kendall suffered severe and permanent injuries as the result of the accident, and she sued the County and Mercer seeking damages for her injuries.

At the time of the accident, Kendall was insured by an automobile-insurance policy issued by USAA. The USAA policy contained an uninsured/underinsured-motorist provision, which stated as follows:

“We will pay damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of [bodily injury] sustained by a covered person and caused by an auto accident.”

The County offered Kendall $100,000, its insurance-policy limits, to settle her claims against it and Mercer. It is undisputed that Kendall’s medical expenses exceeded the County’s policy limits of $100,000. On April 4, 2003, Kendall notified USAA of the County’s offer to settle her claims for its policy limits of $100,000. Kendall also demanded payment from USAA of $75,000, the policy limit for UIM coverage. On May 5, 2003, USAA gave its permission to Kendall to settle her claims with the County and waived its rights of subrogation. Subsequently, Kendall settled her claims against the County and Mercer for $100,000. On June 20, 2003, Kendall again demanded from USAA the payment of the UIM policy limits. USAA refused to pay to Kendall the policy limits of the UIM coverage of Kendall’s policy with USAA because it claimed that the County’s liability was limited by statute to $100,000 and Kendall had received that amount.

On September 21, 2006, Kendall sued USAA, seeking a judgment declaring her rights under the policy and an award of UIM benefits under the policy. On December 12, 2006, USAA moved for a summary judgment, arguing that § 11-93-2, Ala. Code 1975, caps the County’s liability at $100,000, and that, because Kendall had already settled her claims against the County and Mercer for $100,000, she is no longer “legally entitled to recover” damages against the County and, therefore, she cannot recover the UIM benefits under her policy with USAA in this case. On February 28, 2007, the trial court denied USAA’s motion for a summary judgment.

On April 5, 2007, USAA moved the trial court to reconsider its denial of USAA’s motion for a summary judgment on the issue whether Kendall could recover UIM benefits in this case when she had already recovered $100,000 from the County, which is the limit of the County’s liability under the damages cap of § 11-93-2, Ala.Code 1975. USAA submitted in support of its motion State Farm Mutual Automobile Insurance Co. v. Causey, 509 F.Supp.2d 1026 (M.D.Ala.2007). On May 30, 2007, the trial court set aside its order of February 28, 2007, and entered a summary judgment in favor of USAA. Kendall appeals.

Standard of Review

In reviewing the disposition of a motion for a summary judgment, we use the same standard the trial court used in determining whether the evidence before it presented a genuine issue of material fact and whether the movant was entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988). When the mov-ant makes a prima facie showing that no genuine issue of material fact exists, the burden then shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794 (Ala.1989). Evidence is “substantial” if it is 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). This Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).

Discussion

USAA argues that Kendall cannot recover UIM benefits under her policy in this case because, it says, she had already recovered from the County the statutory maximum of $100,000 permitted by § 11-93-2; therefore, it argues, Kendall was no longer “legally entitled to recover” damages from the County. Kendall argues that her expenses for the injuries she incurred exceed the $100,000 she received in settlement of her claims against the County and Mercer and that she is entitled to UIM benefits under her policy in this case in order to be made whole and that her right to the UIM benefits cannot abrogated by the damages cap in § 11-93-2.

The uninsured-motorist statute provides, in part:

“No automobile liability or motor vehicle liability policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered ... unless coverage is provided ... in limits for bodily injury or death ... for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom .... ”

§ 32-7-23(a), Ala.Code 1975.

In Ex parte Carlton, 867 So.2d 332 (Ala. 2003), the plaintiff was injured in an automobile accident while acting within the line and scope of his employment with a landscaping company. The plaintiff was a passenger in a vehicle owned by his employer and being driven by a co-employee when the co-employee negligently turned in front of an oncoming vehicle. The plaintiff received workers’ compensation benefits from his employer for the injuries he sustained in the accident. The plaintiff also sought uninsured-motorist benefits under a policy that his mother had with State Farm Mutual Automobile Insurance Company, which named him as an insured. State Farm refused to pay the uninsured-motorist benefits. Both the plaintiff and State Farm filed separate actions, and the two cases were consolidated. State Farm contended that the plaintiff could not recover uninsured-motorist benefits in that he was not “legally entitled to recover” from the negligent driver because the exclusivity-of-remedy and the co-employee-liability provisions of the Workers’ Compensation Act barred his suing the co-employee on a claim of negligence. The trial court disagreed with State Farm’s position and awarded the plaintiff $50,000, which was the limit of his mother’s uninsured-motorist coverage. The Court of Civil Appeals reversed the trial court’s decision, and this Court granted the plaintiffs petition for a writ of certiorari. Ex parte Carlton, 867 So.2d at 333.

In affirming the judgment of the Court of Civil Appeals, this Court accorded the statutory language “legally entitled to recover” a plain-meaning interpretation and overruled prior decisions that had expanded uninsured-motorist coverage beyond the plain language of the uninsured-motorist statute. This Court stated:

“Today we return to the point from which this Court never should have departed — the language of the statute. The language of the uninsured-motorist statute is plain and unambiguous:
“ ‘No automobile liability or motor vehicle liability policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered ... unless coverage is provided ... for bodily injury or death ... for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom .... ’
“Ala.Code 1975, § 32-7-23. This Court has often stated:
“ ‘ “ ‘Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.’ ” ’
“DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270, 275 (Ala.1998) (quoting Blue Cross & Blue Shield v. Nielsen, 714 So.2d 293, 296 (Ala.1998), quoting in turn IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992)). No interpretation of the words of the uninsured-motorist statute is necessary. Furthermore, this Court is not at liberty to rewrite statutes or to substitute its judgment for that of the Legislature. Wal-Mart Stores, Inc. v. Patterson, 816 So.2d 1 (Ala.2001); see also Omni Ins. Co. v. Foreman, 802 So.2d 195 (Ala.2001).
“Pursuant to the Alabama Workers’ Compensation Act, [the plaintiff] may not recover from his co-employee for the co-employee’s negligent or wanton conduct. The workers’ compensation benefits [the plaintiff] received are his only remedy against his employer. § 25-5-11, Ala.Code 1975. Therefore, [the plaintiff] is not ‘legally entitled to recover damages from the owner or operator of an uninsured vehicle’ as the plain language of § 32-7-23(a), Ala.Code 1975, or the clear and unambiguous provisions of his mother’s State Farm policy require. Thus, he may not recover uninsured-motorist benefits under the policy.
“To the extent that [State Farm Automobile Insurance Co. v.] Baldwin, [470 So.2d 1230 (Ala.1985) ], [State Farm Mutual Automobile Insurance Co. v.] Jeffers, [686 So.2d 248 (Ala.1996) ], and Hogan [v. State Farm Mutual Automobile Insurance Co., 730 So.2d 1157 (Ala.1998),] authorize recovery under the uninsured-motorist provision of a policy despite the fact that the insured is ‘not legally entitled to recover damages from the owners or operators of an uninsured vehicle’ as required by § 32-7-23(a), Ala.Code 1975, they are overruled.”

Ex parte Carlton, 867 So.2d at 337-38.

In State Farm Mutual Automobile Insurance Co. v. Causey, supra, the United States District Court for the Middle District of Alabama, Northern Division, decided the precise issue now before this Court. In Causey, a street-sweeping machine operated by the City of Montgomery (“the City”) collided with the plaintiffs vehicle; the damage sustained by the plaintiff was approximately $175,000. The City settled the plaintiffs claim against it and its employee for $100,000, which represented the limits of the City’s policy and the statutory maximum in Alabama for recovery against a municipality and its employee. Subsequently, the plaintiff sought recovery of UIM benefits from State Farm in excess of the statutory cap of $100,000. The federal district court framed the issue as follows: “[W]hen the alleged tortfeasor is a municipality which enjoys the benefit of a statutory cap on damages, can an insured recover UIM benefits in excess of the statutory cap from the insured’s own UIM carrier?” Causey, 509 F.Supp.2d at 1027. In answering that question in the negative, the court stated:

“The policy and the statute link the definition of uninsured motor vehicle to ‘legally entitled to recover,’ a phrase which is not defined in the policy or in the statute. [The insured] contend[s] ‘legally entitled to recover’ denotes the damages necessary to fully compensate [the insured] for [her] injuries. State Farm contends ‘legally entitled to recover’ is what [the insured] could be awarded in a court of law in a direct action against the City and its employee, i.e., $100,000 due to the statutory cap. There is no dispute that the municipal cap applies to [the insured’s] claim against the City and its employee. See Benson v. City of Birmingham, 659 So.2d 82, 84 (Ala.1995) (holding that judgments must be reduced to $100,000 ‘when a defendant is determined to be a governmental entity’). State Farm characterizes the cap as a defense available to the insurance carrier because it is available to the tortfeasor. [The insured] insist[s] the cap is merely a post-verdict remedy, and that this situation is no different than where a claimant’s recovery against the tortfeasor is limited by the tortfeasor’s policy limits.
“The relationship of the UM [uninsured-motorist] statute to Alabama’s cap on awards against municipalities and their employees has not been specifically addressed by the Alabama Supreme Court. However, that Court has clearly interpreted the phrase ‘legally entitled to recover’ and its interaction with other statutory and doctrinal bars to recovery. Based upon a careful reading of the applicable state precedent, this court finds that [the insured is] ‘legally entitled to recover’ under [her] UIM coverage what [she] could recover in a direct suit against the tortfeasors who damaged [her]. If, in a direct suit against those tortfeasors, [the insured’s] recovery would be limited to a statutory maximum, as [the insured’s] recovery is limited here by Alabama’s municipal cap, then that statutory maximum applies to [the insured’s] UIM claim against [her] insurer.
“This result is required by a recent opinion of the Alabama Supreme Court on the meaning of ‘legally entitled to recover.’ In Ex parte Carlton, 867 So.2d 332 (Ala.2003), the Supreme Court expressly overruled a line of cases which had held that an insured could recover UM benefits despite bars to recovery from the tortfeasor created by statute or immunity doctrines. Id. at 338. As a passenger, Carlton was injured because of the negligent driving of his co-employee during the course of their employment. Id. at 333. He received workers’ compensation benefits from his employer, but those benefits were presumably insufficient to make him whole. Id. He sought damages under the uninsured motorist coverage from his mother’s insurance company, which refused to pay. Id. The insurer did not dispute that he was an insured under his mother’s policy but claimed that he was not ‘legally entitled to recover’ under both the UIM statute and the policy because he could not recover anything in a direct suit against the tortfeasors — his co-employee and his employer. The insurer’s specific argument was that Carlton could not recover because Alabama’s Workers’ Compensation Act, Ala.Code [1975,] § 25-5-1 et seq., makes workers’ compensation benefits the exclusive remedy when one is injured by a co-employee tortfeasor. See id. § 25-5-11.
“The insured in Carlton relied upon a line of Alabama cases which held that an insured could recover UM benefits despite bars to recovery from the tortfea-sor created by statute or immunity doctrines. See Hogan v. State Farm Mut. Auto. Ins. Co., 730 So.2d 1157 (Ala.1998) (holding that passenger was entitled to recover UM benefits even though guest statute granted immunity to driver); State Farm Mut. Auto. Ins. Co. v. Jeffers, 686 So.2d 248 (Ala.1996) (holding that accident victim was entitled to recover UM benefits despite police officer driver’s protection from liability under doctrine of Alabama substantive immunity); State Farm Auto. Ins. Co. v. Baldwin, 470 So.2d 1230 (Ala.1985) (holding that insureds were legally enti-tied to recover from UM carrier despite the total bar to recovery from the tort-feasor because of governmental immunity under the Feres doctrine). More specifically, this line of cases supported the notion that ‘a defense that was personal to the uninsured motorist could not be asserted by a UM insurance carrier in defense of a claim for UM benefits.’ State Farm Mut. Auto. Ins. Co. v. Mason, 982 So.2d 507, 509 (Ala.Civ.App.2007).
“The Carlton Court referred to the holdings of Hogan, Jeffers, and Baldwin as ‘... carved out judicial exceptions to the legislative determination that an insured could recover uninsured-motorist benefits only when the insured was legally entitled to recover from the uninsured motorist. These were exceptions the Legislature could have provided for but did not see fit to do so.’ Carlton, 867 So.2d at 336. The Carlton Court quoted with approval Justice Lyon’s dissent in Hogan: ‘[Tjoday’s decision, like Baldwin and Jeffers, has construed that phrase to mean “legally entitled to recover but for a defense that does not arise out of any wrongful conduct of the insured,” a defense such as immunity or an insured’s status as a guest.’ Id. at 337 (quoting Hogan, 730 So.2d at 1159). In adopting a literal interpretation of ‘legally entitled to recover,’ the Court in Carlton held that the statutory language was unambiguous with ‘no room for judicial construction’ and that ‘interpretation of the words of the uninsured-motorist statute’ is unnecessary. Id. at 338. Carlton was not injured by an ‘uninsured motor vehicle’ because he failed to fulfill a condition precedent of the policy, ie., he was not legally entitled to recover from the co-employee tortfeasor. Because he was statutorily barred and therefore not legally entitled to recover damages from his co-employee, he was not entitled to uninsured motorist benefits. Id. Thus, Carlton ultimately stands for the proposition that ‘legally entitled to recover’ depends entirely on the merits of the insured’s claim against the tortfeasor under the laws of the state.
“Applying the law to this case, the Defendants are ‘legally entitled to recover’ no more than $100,000 from the City and its employee in a direct suit against those tortfeasors for this incident. ... Thus, the court concludes that the City’s vehicle is not an ‘uninsured motor vehicle’ for purposes of the policy and statute. Defendants cannot recover more from their insurer under UIM coverage.”

Causey, 509 F.Supp.2d at 1029-30.

Based on the foregoing, we agree with the federal district court’s assessment that “legally entitled to recover” under the uninsured-motorist statute “depends entirely on the merits of the insured’s claim against the tortfeasor under the laws of the state.” Causey, 509 F.Supp.2d at 1030. In this case, Kendall could recover no more than the statutory maximum of $100,000 in damages from the County under § 11-93-2, Ala.Code 1975. Because Kendall had already recovered the statutory maximum of $100,000, she was no longer “legally entitled to recover” damages from the County or Mercer; therefore, she could not recover UIM benefits from her insurer. Accordingly, we affirm the summary judgment in favor of USAA.

AFFIRMED.

LYONS, WOODALL, STUART, SMITH, MURDOCK, and SHAW, JJ., concur.

COBB, C.J., concurs specially.

PARKER, J., concurs in the result.

COBB, Chief Justice

(concurring specially).

I concur with the majority’s opinion in this difficult case. I agree that the plain language of § 32-7-23(a), Ala.Code 1975, necessitates the result reached in this case. However, had I been a member of this Court when it decided Ex parte Carlton, 867 So.2d 332 (Ala.2003), I would have joined Justice Woodall in his dissent. In pertinent part, Justice Woodall wrote:

“As this Court stated in Hogan [v. State Farm, Mutual Automobile Insurance Co., 730 So.2d 1157 (Ala.1998) ], ‘the Legislature, of course, has the prerogative to change the statute so as to avoid the interpretation adopted by this Court in [State Farm Automobile Insurance Co. v.] Baldwin, [470 So.2d 1230 (Ala.1985),] [State Farm Mutual Automobile Insurance Co. v.] Jeffers, [686 So.2d 248 (Ala.1996),] and [Hogan ].’ 730 So.2d at 1159 n. 1. Because the Legislature has chosen not to amend the statute, I am not convinced that this Court’s earlier interpretations of the statute were inconsistent with legislative intent. Therefore, I cannot agree that this Court should overrule Baldwin, Jeffers, or Hogan.”

Carlton, 867 So.2d at 338 (Woodall, J., dissenting). However, using the same logic, six years have passed since this Court decided Carlton, and the legislature has not amended the statute to avoid the interpretation of § 32-7-23 adopted in Carlton. Therefore, we cannot say the plain-language interpretation of this statute applied in Carlton is incorrect.

As this Court has previously observed: “We recognize that the legislative purpose in enacting statutes providing for underin-sured motorist coverage was to protect those financially and ethically responsible enough to obtain automobile liability insurance by providing insurance to compensate them for claims based on injuries or death caused by those not so responsible.” Aetna Cas. & Sur. Co. v. Turner, 662 So.2d 237, 239 (Ala.1995). This Court has also long recognized underinsured-motorist coverage as well as uninsured-motorist coverage to be a contractual relationship between the insurer and the insured. See Ex parte Barnett, 978 So.2d 729, 734 (Ala.2007) (“[A] UM [uninsured/underinsured-motorist] insurance carrier’s liability to the insured is based solely on its contractual obligations as laid out in the policy.”); Continental Nat’l Indem. Co. v. Fields, 926 So.2d 1033, 1037 (Ala.2005) (“[T]he cause of action asserted in this case under the uninsured-motorist statute is contractual .... ”); Howard v. Alabama Farm Bureau Mut. Cas. Ins. Co., 373 So.2d 628, 629 (Ala.1979) (“An action based on uninsured motorist provisions of a liability policy is ex contractu in nature.”).

The plain language of § 32-7-23, which limits an injured party’s recovery to damages that the party is “legally entitled to recover,” mandates the outcome in this case. However, it also interferes with the contractual relationship between Kendall and her insurer in that it prohibits her from receiving the contractual benefits she would have received had the tortfeasor not been acting within the line and scope of her employment with a governmental entity. I have reservations as to whether this was the legislature’s intent in adopting § 32-7-23. However, without a legislative history, we are limited to the plain language of the statute. As Justices of the Supreme Court, our power to rectify this situation is limited. “ ‘ “To declare what the law is, or has been, is a judicial power; to declare what the law shall be, is legislative.” ’ ” City of Daphne v. City of Span ish Fort, 853 So.2d 933, 942 (Ala.2003) (quoting Sanders v. Cabaniss, 43 Ala. 173, 180 (1869), quoting in turn Thomas M. Cooly, Constitutional Limitations 91-95 (1868)). I write specially to encourage the Alabama Legislature to revisit the uninsured-motorist statute, § 32-7-23, Ala. Code 1975, as well as the statutory cap on damages that can be recovered from governmental entities, § 11-93-2 and § 11— 47-190, Ala.Code 1975, to clarify whether it intended to allow for outcomes such as this.

      . Section 11-93-2, Ala.Code 1975, provides, in part, that "[t]he recovery of damages under any judgment against a governmental entity shall be limited to $100,000.00 for bodily injury or death for one person in any single occurrence....”

      . For purposes of this case, the only difference between Causey and the present case is the fact that Causey dealt with the application of § 11-47-190, Ala.Code 1975, which established a damages cap of $100,000 with respect to municipalities, as opposed to other governmental entities, such as the County, which are covered under § 11-93-2. Kendall does not argue on appeal that she has a claim for UIM benefits against the tortfeasor, Mercer, in Mercer's individual capacity that would fall outside the cap imposed in § 11-93-2. See Smitherman v. Marshall County Comm'n, 746 So.2d 1001, 1010 (Ala.1999) (Johnstone, J., concurring in part and concurring specially in part).

      3. Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950).


source: Caselaw Access Project

author: BOLIN, Justice. MURDOCK, Justice

license: Public Domain

text:
    QBE INSURANCE CORPORATION v. The AUSTIN COMPANY, INC., and The Mobile Press Register, Inc.
    1071144.
    Supreme Court of Alabama.
    May 15, 2009.

      Jason D. Miller and Stewart L. Howard of Stewart Howard, P.C., Mobile, for appellant.
    E. Britton Monroe, Mickey B. Wright, and Patrick Patronas of Lloyd, Gray & Whitehead, P.C., Birmingham, for appellee The Austin Company, Inc.
    Edward S. Sledge III, Thomas M. O’Hara, and William G. Chason of McDowell Knight Roedder & Sledge, L.L.C., Mobile, for appellee The Mobile Press Register, Inc.
   BOLIN, Justice.

QBE Insurance Corporation appeals from the trial court’s denial of its motion for permissive intervention. We affirm.

Facts and Procedural History

On July 28, 2006, The Mobile Press Register, Inc. (“MPR”), a regional newspaper company, sued eight subcontractors and vendors involved in the design and construction of its new office and printing facility in Mobile. The complaint named Structural Masonry, Inc., as one of the defendants. Structural Masonry constructed both the concrete masonry unit walls of the building and the brick-veneer exterior. MPR asserted claims against Structural Masonry alleging negligence, wantonness, breach of warranty, misrepresentation, and suppression. Structural Masonry had a commercial general-liability insurance policy with QBE, and, pursuant to the policy, it notified QBE of the pending lawsuit against it. On October 10, 2006, MPR filed its first amended complaint, adding as defendants six subcontractors and vendors.

On November 9, 2006, QBE advised Structural Masonry that it was “reserving its right to question its duties in the future and/or deny any further duties under the Polic[y] and/or request that a court determine those duties, if any, in an action seeking a declaratory judgment regarding the obligations and rights of the parties under the Polie[y].” In its letter reserving its rights under the policy, QBE stated that coverage may be barred because of the applicability of various exclusions within the policy and/or because the damage did not occur within the effective term of the policy. One of the provisions in the policy excludes from coverage damage to any part of the property that must be repaired or replaced because work was “incorrectly performed” by Structural Masonry. Subsequently, QBE provided Structural Masonry with defense counsel.

On February 8, 2007, MPR submitted a report by an engineering expert, which details the damage to the building, including the cost to replace Structural Masonry’s allegedly defective work. QBE received a copy of the report. On April 13, 2007, MPR filed its second amended complaint, adding the general contractor, The Austin Company, Inc. (“Austin”), as a defendant. On April 25, 2007, QBE sent Structural Masonry a second reservation-of-rights letter, again placing Structural Masonry on notice that QBE was reserving its rights to deny coverage under the policy.

On July 9, 2007, Austin filed a cross-claim against several of the subcontractors and vendors, including Structural Masonry. On July 24, 2007, QBE sent Structural Masonry a third reservation-of-rights letter. On January 7, 2008, Austin filed a third-party complaint against Thompson Engineering, Inc., arising out its contract with Austin to provide testing and inspection services during the construction of the building.

On March 3, 2008, QBE filed a motion for permissive intervention, pursuant to Rule 24(b), Ala. R. Civ. P. In its motion, QBE sought to intervene in MPR’s action for the purposes of participating in discovery, requesting interrogatories and/or special-verdict forms to be presented to the jury in order to determine the basis of the jury’s verdict for insurance-coverage purposes, and clarifying, in any way necessary, coverage issues related to the damages that may ultimately be awarded. QBE stated in its motion that Structural Masonry’s commercial general-liability insurance policy would provide coverage only for damage resulting from Structural Masonry’s allegedly defective construction, e.g., water intrusion, but would not provide coverage for repairing or replacing that defective construction. QBE also stated that the policy provided coverage for only a portion of the period at issue. QBE argued that in the event the jury returned a general verdict, QBE would not be able to determine what portion of the verdict is attributable to damage possibly covered by the policy and what portion of the verdict is attributable to damage that occurred during the policy period.

On March 4, 2008, the trial court set the motion for a hearing on April 4, 2008. On March 24, 2008, another insurance company, Penn National Insurance Company, filed a motion to intervene. Penn National also insured Structural Masonry. On March 27, 2008, Austin filed a motion objecting to QBE’s and Penn National’s motions to intervene, arguing that allowing either insurance company to intervene would prejudice Austin and introduce into the case the issue of the existence of liability-insurance coverage. Austin also stated that the insurance companies had an adequate remedy to protect their interests through a separate declaratory-judgment action determining coverage under their respective policies.

On April 2, 2008, two days before the scheduled hearing, the trial court denied both QBE’s and Penn National’s motions to intervene. On May 14, 2008, QBE filed its notice of appeal. Penn National appealed, but on August 28, 2008, this Court dismissed the appeal (no. 1071176) as untimely.

Standard of Review

In Universal Underwriters Insurance Co. v. Anglen, 630 So.2d 441, 443 (Ala.1993), this Court set out the applicable standard for reviewing the denial of a motion for permissive intervention under Rule 24(b), Ala. R. Civ. P.:

“The standard of review for a denial of a motion for permissive intervention is whether the trial court abused its discretion. Universal [Underwriters, Ins. Co. v. East Central Alabama Ford-Mercury, Inc., 574 So.2d 716, 723 (Ala.1990) ]. See also, New Orleans Public Service, Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 470-71 (5th Cir.1984) (‘when we are asked to review a denial of permissive intervention, the question on appeal is not whether “the factors which render permissive intervention appropriate under Federal Rule of Civil Procedure 24(b) where present,” but is rather “whether the trial court committed a clear abuse of discretion in denying the motion” ’). Again, we see no reason to depart from the Federal courts’ interpretation of the corresponding Federal rule.”

Discussion

The issue thus is whether the trial court exceeded its discretion in denying QBE’s motion for permissive intervention. We note that all the parties to this appeal recognize that an insurer has no absolute right to intervene in an action against its insured. Universal Underwriters Ins. Co. v. East Central Alabama Ford-Mercury, Inc., 574 So.2d 716 (Ala.1990). In Univer sal, the insurer sought to intervene in an action brought against its insured for the limited purpose of presenting the trial court with either special-verdict forms or special interrogatories to be given to the jury at the close of the trial. The trial court denied the insurer’s motion, and the insurer appealed. This Court held that the insurer did not have a direct, substantial, and legally protectible interest allowing it to intervene as a matter of right as provided in Rule 24(a), Ala. R. Civ. P. We recognized that permissive intervention under Rule 24(b) is within the broad discretion of the trial court, and we affirmed the trial court’s denial of the insurer’s motion to intervene.

Rule 24(b), Ala. R. Civ. P., provides that on a timely motion the court may permit anyone to intervene when a statute confers a conditional right to intervene or when an applicant’s claim or defense and the main action share a common question of law or fact. Rule 24(b) goes on to provide that “[i]n exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.”

The first requirement is that a motion for permissive intervention be timely filed. Whether such a motion is timely is a determination within the discretion of the trial court.

“Since [Rule 24, Ala. R. Civ. P.], itself, is silent concerning what constitutes a ‘timely application,’ it has long been held that the determination of timeliness is a matter committed to the sound discretion of the trial court. See Strousse v. Strousse, 56 Ala.App. 436, 322 So.2d 726 (1975). See also McDonald v. E.J. La-vino Co., 430 F.2d 1065, 1072 (5th Cir.1970). Because the pressure to allow intervention ‘of right’ under Rule 24(a) is by its very nature more compelling than is permissive intervention, most courts tend to require less rigidity in evaluation of timeliness under Rule 24(a). See Diaz v. Southern Drilling Corp., 427 F.2d 1118 (5th Cir.), cert. denied, 400 U.S. 878, 91 S.Ct. 118, 27 L.Ed.2d 115 (1970), rehearing denied, 400 U.S. 1025, 91 S.Ct. 580, 27 L.Ed.2d 638 (1971). See generally, [Charles Alan Wright et al., Federal Practice & Procedure ] § 1916 [ (2d ed. 1986) ]. As expressed in McDonald, 430 F.2d at 1073: ‘Since in situations where intervention is as of right, the would-be inter-venor may be seriously harmed if he is not permitted to intervene, courts should be reluctant to dismiss such a request for intervention as untimely, even though they might deny the request if the intervention were merely permissive.’ ”

Randolph County v. Thompson, 502 So.2d 357, 364 (Ala.1987). In other words, trial courts have broader discretion in denying a motion for permissive intervention as untimely under Rule 24(b) than they do in denying as untimely a motion to intervene as of right under Rule 24(a).

Several United States Courts of Appeals have set out factors to use in assessing the timeliness of a motion to intervene filed under Rule 24, Fed.R.Civ.P. See, e.g., Shea v. Angulo, 19 F.3d 343, 348-49 (7th Cir.1994); United States v. Jefferson County, 720 F.2d 1511, 1516 (11th Cir.1983); and Stallworth v. Monsanto Co., 558 F.2d 257, 264-67 (5th Cir.1977). “Cases interpreting the Federal Rules of Civil Procedure can be persuasive authority in construing the Alabama Rules of Civil Procedure because of the similarities between the Alabama rules and federal rules.” Pontius v. State Farm Mut. Auto. Ins. Co., 915 So.2d 557, 561 n. 3 (Ala.2005). The court must consider the totality of the circumstances in determining whether the motion for intervention is timely and not merely the point to which the action has progressed at the time the motion is filed. NAACP v. New York, 413 U.S. 345, 365-66, 93 S.Ct. 2591, 37 L.Ed.2d 648 (1973). In United States v. Jefferson County, the United States Court of Appeals for the Eleventh Circuit set out the factors as follows:

“(1) [T]he length of time during which the would-be intervenor knew or reasonably should have known of his interest in the case before he petitioned for leave to intervene; (2) the extent of prejudice to the existing parties as a result of the would-be intervenor’s failure to apply as soon as he knew or reasonably should have known of his interest; (3) the extent of prejudice to the would-be inter-venor if his petition is denied; and (4) the existence of unusual circumstances militating either for or against a determination that the application is timely. Stallworth [v. Monsanto Co., 558 F.2d 257, 264-66 (5th Cir.1977) ]. This analysis applies whether intervention of right or permissive intervention under Fed. R.Civ.P. 24 is claimed. Id., citing United Airlines, Inc. v. McDonald, 432 U.S.
385, 387, 97 S.Ct. 2464, 2466, 53 L.Ed.2d 423 (1977); NAACP v. New York, 413 U.S. 345, 366, 93 S.Ct. 2591, 2602-03, 37 L.Ed.2d 648 (1973); Smith Petroleum Service, Inc. v. Monsanto Chemical Co., 420 F.2d 1103, 1115 (5th Cir.1970).”

720 F.2d at 1516. “These factors are a framework and ‘not a formula for determining timeliness.’” John Doe No. 1 v. Glickman, 256 F.3d 371, 376 (5th Cir.2001) (quoting Edwards v. City of Houston, 78 F.3d 983, 1004 (5th Cir.1996)). “The requirement of timeliness is not a tool of retribution to punish the tardy would-be intervenor, but rather a guard against prejudicing the original parties by the failure to apply sooner.” Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir.1994).

The first factor set out by the Eleventh Circuit Court of Appeals is the length of time the would-be intervenor knew or reasonably should have known of its interest in the case before it sought intervention. This is not necessarily the date the would-be intervenor learned of the existence of the legal action; rather, it is the time when the intervenor knew or should have known that its interest would be implicated by the action. Stallworth v. Monsanto Co., 558 F.2d at 264. The would-be intervenor must act promptly in protecting its interest. Here, it appears that QBE received notice of the action shortly after it was filed, because Structural Masonry, its insured, was one of the defendants in the original complaint filed on July 28, 2006, and it notified QBE that an action had been filed. On November 9, 2006, QBE recognized that its interests and Structural Masonry’s interests might differ because on that date QBE sent a letter to Structural Masonry reserving its right to deny coverage under the policy. Almost 16 months after notifying Structural Masonry that there were potential coverage issues, QBE, on March 3, 2008, filed its motion for permission to intervene. In its motion, QBE asserted that it sought to intervene because otherwise it would be unable to determine what portion of any verdict that might be entered against Structural Masonry consisted of types of damages covered by the policy and it would be unable to determine what portion of any verdict consisted of damages for harm that occurred during the policy period. In seeking to intervene, QBE asked to participate in discovery, to submit interrogatories to the jury, and to request that a special-verdict form be submitted to the jury. This first factor thus weighs against QBE, which realized its interests were no longer being protected by Structural Masonry when it sent the first reservation-of-rights letter on November 9, 2006, yet waited almost 16 months before seeking to intervene.

The second factor is “the extent of prejudice to the existing parties as a result of the would-be intervenor’s failure to apply as soon as [it] knew or reasonably should have known of [its] interest.” United States v. Jefferson County, 720 F.2d at 1516. QBE is seeking not only to submit interrogatories and special-verdict forms to the jury with regard to its interest in the case, but is also seeking to participate in discovery. The 17 parties to this litigation have substantially completed written discovery and have deposed MPR’s corporate representative. The Eleventh Circuit Court of Appeals has indicated that discovery considerations are important in determining whether a motion to intervene is timely. See Chiles v. Thornburgh, 865 F.2d 1197, 1213 (11th Cir.1989) (concluding that a motion to intervene, filed before any discovery had begun, was timely). QBE is seeking to participate in discovery and seeking to litigate whether particular acts of its insured are covered by the insurance policy. “The most important consideration in determining timeliness is whether any existing party to the litigation will be harmed or prejudiced by the proposed in-tervenor’s delay in moving to intervene.” McDonald v. E.J. Lavino Co., 430 F.2d 1065, 1073 (5th Cir.1970). Clearly, QBE’s intervention will necessarily complicate and further delay the action, thus prejudicing the existing parties to the litigation.

The third factor is “the extent of prejudice to the would-be intervenor if [its] petition is denied.” United States v. Jefferson County, 720 F.2d at 1516. With regard to this factor, “the thrust of the inquiry must be the extent to which a final judgment in the case may bind the movant even though he is not adequately represented by an existing party.” United States v. Jefferson County, 720 F.2d at 1517. This Court has recognized that a declaratory-judgment action is available to determine coverage issues. Mutual Assur., Inc. v. Chancey, 781 So.2d 172 (Ala.2000). QBE has available to it the option of filing a separate declaratory-judgment action to resolve the coverage issue. In addressing prejudice under Rule 24(b)(2), QBE fails to explain why an independent declaratory-judgment action cannot be used to allocate between covered claims and noncovered claims any damages awarded by the jury in this case. Furthermore, we agree with Austin that Structural Masonry has “every reason to defend itself against all claims of damages of any type.” (Austin’s brief, p. 23.)

The fourth factor is “the existence of unusual circumstances militating either for or against a determination that the [motion for permission to intervene] is timely.” United States v. Jefferson County, 720 F.2d at 1516. Nothing in QBE’s motion to intervene shows any unusual or compelling circumstances that prevented it from seeking intervention earlier for the purposes of participating in discovery rather than after written discovery was substantially completed and depositions had begun.

Based on the foregoing, the trial court did not exceed its discretion in denying QBE’s motion to intervene because, under the facts of this case, QBE’s motion for permission to intervene was untimely. Additionally, even if QBE’s motion for permissive intervention had been timely, the trial court did not exceed its discretion in denying the motion because “[w]hether to allow an insurer permissive intervention, pursuant to Rule 24(b), Ala. R. Civ. P., in a tort action against its insured, so that the insurer can invoke Rule 49, Ala. R. Civ. P., and thereby obtain clarification of coverage issues, falls within the sound discretion of the trial court.” Mutual Assur., Inc. v. Chancey, 781 So.2d at 176 (Lyons, J., concurring specially). There are 17 parties to this litigation, which involves alleged defects in constructing a building, and the controversy is already sufficiently complex because of the nature of the action. See In re HealthSouth Corp. Ins. Litigation, 219 F.R.D. 688 (N.D.Ala.2004) (finding that intervention by the movants would unduly complicate and delay resolution of the matter and would inject collateral issues). The trial court property denied QBE’s motion for permission to intervene.

The judgment of the trial court is affirmed.

AFFIRMED.

COBB, C.J., and WOODALL, STUART, SMITH, PARKER, and SHAW, JJ., concur.

MURDOCK, J., dissents.

LYONS, J., recuses himself.

MURDOCK, Justice

(dissenting).

I respectfully dissent. Largely on the strength of the argument made to this Court by QBE, I conclude that the second and third “factors” as identified in United States v. Jefferson County, 720 F.2d 1511, 1516 (11th Cir.1983), militate in favor of intervention, rather than against it, as the main opinion concludes.

The second factor addresses a key issue, at least for purposes of this case: whether the existing parties would be unduly prejudiced by the proposed intervention. As one court has noted: “The requirement of timeliness is not a tool of retribution to punish the tardy would-be intervenor, but rather a guard against prejudicing the original parties by the failure to apply sooner.” Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir.1994).

I cannot agree with my colleagues that the state of the discovery process in this case was a good basis for not allowing QBE to intervene when it requested to do so, especially if QBE desires simply to participate in the discovery yet to come. As to the timing of QBE’s attempted intervention in relation to the general progress of discovery, I find merit in much of the following argument by QBE:

“Neither Appellee has made any argument concerning any prejudice that would be suffered by any party by the timing of QBE’s Motion to Intervene. Appellees cannot make such an argument legitimately because, regardless of when the case was filed, an examination of the record reveals that the case was still in its early stages when QBE’s Motion to Intervene was filed on March 3, 2008. One defendant had just filed its answer to Austin’s Cross-claim in December, 2007. In January 2008, Austin added an entirely new defendant to the case via a Third-party Complaint filed, without objection, less than 60 days pri- or to QBE’s Motion to Intervene. That Third-party defendant did not file its response to Austin’s Third-party complaint until after QBE filed its Motion to Intervene. Some parties did not respond to initial written discovery requests until after QBE filed its Motion to Intervene. (See Exhibit 1, as attached to QBE’s Motion to Supplement the Record on Appeal). Further, Mobile Press Register!, Inc.,] did not respond to Austin’s First Request for Production until after QBE’s Motion to Intervene was denied. (See Exhibit 2, as attached to QBE’s Motion to Supplement the Record on Appeal). In fact, the original parties were still disputing whether the documents first produced in initial discovery were appropriately responsive to the discovery requests after QBE’s Motion to Intervene was denied. (Exhibit 3, as attached to QBE’s Motion to Supplement the Record on Appeal). Finally, as of the filing of this brief, the case has not been set for trial, and only one party’s deposition has been taken. So despite Appellees’ protests regarding how long this case had been pending when QBE filed its Motion to Intervene, the record reveals that this case was still in its infancy when QBE’s motion was filed and new parties were still being added to the case. The timing of QBE’s Motion to Intervene, therefore, had no impact on the timing or progress of the underlying case, and therefore, there was no prejudice to the original parties by the timing of QBE’s Motion to Intervene.”

QBE’s reply brief, at pp. 13-15 (references to the record deleted).

As to the third factor, I conclude that a subsequent declaratory-judgment action by QBE would not be an adequate substitute for QBE’s intervention in this action and that QBE likely would suffer definite prejudice if it is not allowed to intervene. Again, I believe there is merit in much of QBE’s argument:

“A declaratory judgment action by QBE would not be an adequate remedy to protect its interest in this case. The coverage issues in this case are entirely fact based. A separate declaratory judgment action cannot determine the factual basis for the damages awarded in this action if there is a general verdict, and therefore, a declaratory judgment cannot determine the extent of damages awarded for covered consequential damages, versus noncovered damages for replacement or repair of the insured’s work. Further, even if a declaratory judgment was an effective remedy for QBE to resolve coverage issues, such an action would be wasteful of judicial resources, since the coverage questions can be more efficiently resolved in this action. A separate declaratory judgment action would involve QBE, Structural Masonry, and likely Structural Masonry’s other insurer Penn National, in additional burdensome litigation. Finally, a declaratory judgment action may very well be inconsistent with the damages awarded in the underlying action.”

QBE’s brief, pp. 12-13.

      . In Universal, we recognized the dilemma faced by insurers in situations where the insured was being sued on claims that might or might not be covered by the insurance policy, and we adopted an alternate procedure involving permissive intervention and a bifurcated trial. QBE did not seek to intervene in the underlying action for the purpose of participating in a bifurcated trial.

      . Other circuits have used similar factors. For example, the Sixth Circuit Court of Appeals has set out the following factors:
      "(1) the point to which the suit has progressed; (2) the puipose for which intervention is sought; (3) the length of time preceding the application during which the proposed intervenors knew or should have known of their interest in the case; (4) the prejudice to the original parties due to the proposed intervenors’ failure to promptly intervene after they knew or reasonably should have known of their interest in the case; and (5) the existence of unusual circumstances militating against or in favor of intervention.”

        Stupak-Thrall v. Glickman, 226 F.3d 467, 473 (6th Cir.2000).


author: MURDOCK, Justice.

text:
    Diane BIBB v. CENTER FOR PAIN OF MONTGOMERY, P.C.
    1061711.
    Supreme Court of Alabama.
    May 15, 2009.

      Joseph Keith Rodgers, Montgomery, for appellant.
    R. Brett Garrett of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellee.
   MURDOCK, Justice.

Diane Bibb appeals from a summary judgment entered by the Montgomery Circuit Court in favor of the Center for Pain of Montgomery, P.C. (“the Center”), on Bibb’s claim alleging medical negligence. We affirm the trial court’s judgment.

I. Facts and Procedural History

Bibb alleged in her complaint that she was injured on March 5, 2004, when Dr. Bradley Katz, a board-certified anesthesiologist employed by the Center, administered a cervical epidural steroid injection (“CESI”) to her. Bibb states that the CESI, which is injected into the neck, was intended to relieve her neck pain. Bibb alleges that at some point after the injection she lost the use of her left hand and has never regained the use of that hand.

Bibb filed an action alleging medical negligence against the Center under the Alabama Medical Liability Act, § 6-5-480 et seq. and § 6-5-540 et seq., Ala.Code 1975, on March 3, 2006. The Center filed a motion for a summary judgment on July 10, 2007. In support of the motion, the Center submitted an affidavit from Dr. Katz in which he testified to his expertise in the medical specialty of anesthesiology and explained that at all times during his treatment of Bibb he met or exceeded the standard of care to which other board-certified anesthesiologists would have been held in a similar case.

Bibb filed a response in opposition to the Center’s summary-judgment motion on July 24, 2007. Bibb relied solely on the doctrine of res ipsa loquitur to establish that the Center breached the applicable standard of care. In support of her response, Bibb filed her own affidavit, in which she stated that it was “apparent” that the loss of the use of her left hand is “in an area remote from where [she] was being treated.” She averred that “[t]his type of injury does not occur in the absence of someone’s negligence and the injury occurred while [Dr. Katz] was in the exclusive control of [her] person while undergoing an injection for neck pain.”

After a hearing, the trial court granted the Center’s motion for a summary judgment; it did not provide its rationale for doing so. Bibb appeals.

II. Analysis
“In order for a plaintiff alleging medical malpractice to rebut a defendant’s prima facie showing, the plaintiff must produce substantial evidence establishing ‘(1) that the defendant breached the standard of care and (2) that this breach proximately caused the plaintiffs injuries.’ Williams v. Spring Hill Memorial Hosp., 646 So.2d 1373, 1375 (Ala.1994). ‘Ordinarily, the plaintiff is required to prove these elements through expert testimony.’ Levesque v. Regional Medical Center Bd., 612 So.2d 445, 448 (Ala.1993).”

Golden v. Stein, 670 So.2d 904, 906-07 (Ala.1995) (footnote omitted).

Bibb admits that she did not submit any expert testimony. She argues, however, that the circumstances of her case fall into an exception to the general requirement of expert testimony in a medical-malpractice action, i.e., the doctrine of res ipsa loquitur.

In discussing the general rule that requires expert testimony in a medical-malpractice action, this Court has held: “A narrow exception to this rule exists ‘ “in a case where want of skill or lack of care is so apparent ... as to be understood by a layman, and requires only common knowledge and experience to understand it.” ’ ” Ex parte HealthSouth Corp., 851 So.2d 33, 38 (Ala.2002) (quoting Tuscaloosa Orthopedic Appliance Co. v. Wyatt, 460 So.2d 156, 161 (Ala.1984), quoting in turn Dimoff v. Maitre, 432 So.2d 1225, 1226-27 (Ala.1983), quoting in turn Lloyd Noland Found., Inc. v. Harris, 295 Ala. 63, 66, 322 So.2d 709, 711 (1975)). “This exception has usually been applied under circumstances where the doctrine of res ipsa loquitur is applicable, or where the injury complained of is in no way connected to the condition for which the plaintiff sought treatment.” Bell v. Hart, 516 So.2d 562, 566 (Ala.1987) (citations omitted).

Bibb contends that the doctrine of res ipsa loquitur applies in her case because, she says, the loss of the use of her left hand is allegedly “in no way connected to” the treatment of her neck pain. Therefore, she asserts, it requires no special knowledge to conclude that Dr. Katz was negligent in administering the CESI. This argument is without merit. This Court has stated that the exception refers to “such cases ‘as an injury to an arm and shoulder during an operation for appendicitis, or an injury to an eye during the same type of operation.’ ” Anderson v. Alabama Reference Labs., 778 So.2d 806, 811 (Ala.2000) (quoting Powell v. Mullins, 479 So.2d 1119, 1121 (Ala.1985) (citations and quotation marks omitted in Anderson)). Those situations do not describe the facts in Bibb’s case because it is indeed conceivable that a person could lose feeling in an extremity as a result of an injection near the spinal cord.

Bibb’s allegation plainly calls into question the manner in which Dr. Katz performed the CESI and the effect a CESI could have upon Bibb’s neurological condition. The need for expert testimony “is dependent upon whether the average person is able to decide without expert testimony whether or not the procedure followed in any given case falls below the acceptable standard.” Tuscaloosa Orthopedic Appliance Co., 460 So.2d at 161. The standard of care for administering a CESI and the risks, if any, associated with administering a CESI in accordance with that standard of care are not subjects within the knowledge of the average person. The administration of the CESI involves “specialized training and knowledge that puts an understanding of the acceptable standard of care ... beyond the common knowledge of the jury. Laymen do not have the background and knowledge without expert testimony to understand whether or not [the CESI] has been properly [administered].” Tuscaloosa Orthopedic Appliance Co., 460 So.2d at 162.

Bibb needed to present expert testimony as substantial evidence of the breach of the standard of care and causation of the injury to her left hand in order to rebut the Center’s properly supported summary-judgment motion. Because Bibb did not present such evidence, the trial court correctly granted the Center’s motion for a summary judgment.

AFFIRMED.

COBB, C.J., and LYONS, WOODALL, STUART, SMITH, BOLIN, and PARKER, JJ., concur.

      . Bibb amended her complaint on August 17, 2006, to include an allegation that Dr. Katz performed the CESI on behalf of the Center, but she never named Dr. Katz as an individual defendant.


author: PER CURIAM. BRYAN, Judge, MOORE, Judge, THOMAS, Judge,

text:
    Ex parte SUNBELT TRANSPORT, INC., and Patriot Transportation Holding, Inc. (In re Randall Paul v. Sunbelt Transport, Inc., and Patriot Transportation Holding, Inc.).
    2071110.
    Court of Civil Appeals of Alabama.
    May 8, 2009.

      Tara W. Lockett of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Daphne, for petitioners.
    Max Cassady, Fairhope, for respondent.
   PER CURIAM.

Sunbelt Transport, Inc., and Patriot Transportation Holding, Inc. (collectively “Sunbelt”), petition this court for a writ of mandamus ordering the trial court to vacate an order granting an “Emergency Motion to Compel Medical Authorization” filed by Randall Paul. We grant the petition and issue the writ.

Procedural History and Factual Background

On November 15, 2007, Paul sued Sunbelt, seeking workers’ compensation benefits under the Alabama Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975 (“the Act”). In his complaint, Paul alleged that he had injured his spine in an accident on December 22, 2006, while working as a truck driver for Sunbelt. Paul further alleged that he was permanently and totally disabled as a result of the alleged work-related injury.

On May 29, 2008, Sunbelt filed a motion seeking to dismiss Paul’s action for lack of jurisdiction. Sunbelt’s motion stated that “[Sunbelt] has accepted [Paul’s] claim as compensable under the Workers’ Compensation laws of the State of Florida and has paid benefits accordingly. No benefits have been either accepted or paid under the laws of the State of Alabama.” In addition to Sunbelt’s paying temporary-total-disability benefits under Florida law, it is undisputed that, following Paul’s alleged accident of December 22, 2006, Sunbelt authorized Dr. Raymond Fletcher to treat Paul. On June 23, 2008, the trial court denied Sunbelt’s motion to dismiss for lack of jurisdiction.

On June 26, 2008, Sunbelt filed its answer, asserting that it was without sufficient information to admit or deny that Paul had injured his spine on December 22, 2006, while working as a truck driver for Sunbelt. Sunbelt admitted that, at the time of its answer, it was paying Paul temporary-total-disability benefits under Florida’s workers’ compensation law.

On July 18, 2008, Paul filed with the trial court an “Emergency Motion to Compel Medical Authorization.” That motion sought to compel Sunbelt “to permit its authorized treating physician[, Dr. Fletcher,] to provide medical procedures that the authorized treating physician has concluded are medically necessary.” The motion was, in essence, a motion seeking to compel Sunbelt to provide Paul with medical treatment. Paul attached to his motion to compel an authenticated letter from Dr. Fletcher to Paul’s attorney, stating:

“I am still providing medical care for [Paul]. The delay in surgical treatment has persisted. This delay in surgical treatment is expected to result in pain on a day-to-day basis as well as diminished functionality over the next several months. [Paul] is currently ambulating with a walker. Denial of surgical treatment will continue to have a negative impact on [Paul’s] long-term outcome.”

On July 18, 2008, the trial court entered an order granting Paul’s motion to compel treatment. On July 22, 2008, Sunbelt moved the trial court to reconsider its order, and, on August 22, 2008, the trial court denied Sunbelt’s motion. Sunbelt subsequently petitioned this court for a writ of mandamus, seeking to have this court vacate the trial court’s order of July 18, 2008. This court heard oral arguments on this case on February 3, 2009.

Standard of Review

“ ‘A writ of mandamus is an extraordinary remedy, and it will be “issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.” Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993). A writ of mandamus will issue only in situations where other relief is unavailable or is inadequate, and it cannot be used as a substitute for appeal. Ex parte Drill Parts & Serv. Co., 590 So.2d 252 (Ala.1991).’ ”

Ex parte Wilson, 854 So.2d 1106, 1108-09 (Ala.2002) (quoting Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala.1998)). Section 12-3-10, Ala.Code 1975, grants this court appellate jurisdiction to issue extraordinary writs in workers’ compensation cases. Ex parte Alabama Power Co., 863 So.2d 1099, 1101 (Ala.Civ.App.2003).

Discussion

Sunbelt argues that the trial court erred in granting Paul’s motion to compel medical treatment because, Sunbelt says, Paul has not met his burden of proving that he sustained a work-related injury under the Act. Sunbelt contends that this case is controlled by this court’s decision in Ex parte Publix Super Markets, Inc., 963 So.2d 654 (Ala.Civ.App.2007). In that case, the employee sued her employer for workers’ compensation benefits, alleging that she had injured her back in an accident at work. 963 So.2d at 656. The employee attached to her complaint medical records indicating that she had been treated for back pain following her alleged accident. Id. at 657. The employer answered, denying the material allegations of the complaint. After filing her complaint, the employee filed a “Motion to Compel Medical Treatment.” Id. In that motion, the employee “requested that the court enter an order compelling the employer to provide her with medical and surgical treatment pursuant to the Act.” Id. The trial court held a hearing on the motion to compel medical treatment, at which neither party submitted any evidence. The trial court subsequently granted the employee’s motion, and the employer petitioned this court for a writ of mandamus, seeking to have the trial court’s order vacated. Id.

In issuing the writ and ordering the trial court to vacate its order, this court stated:

“Section 25-5-77(a), Ala.Code 1975, provides that
“ ‘the employer, where applicable, ... shall pay an amount not to exceed the prevailing rate or maximum schedule of fees as established herein of reasonably necessary medical and surgical treatment and attention ... as the result of an accident arising out of and in the course of the employment, as may be obtained by the injured employee .... ’
“Standing alone, this subsection mandates that employers shall be financially responsible, subject to certain cost limitations, for the medical and surgical treatment obtained by an employee due to injuries received in an accident arising out of and in the course of the employee’s employment. See, e.g., Gold Kist, Inc. v. Crouch, 671 So.2d 695 (Ala.Civ.App.1995). By implication, an employer would not be financially responsible for medical and surgical treatment obtained by an employee for conditions unrelated to an accident arising out of and in the course of the employee’s employment. See, e.g., Boyd v. M. Kimerling & Sons, Inc., 628 So.2d 711 (Ala.Civ.App.1993).
“In case of a dispute as to the necessity of medical or surgical treatment, § 25-5-77(a), Ala.Code 1975, provides that the circuit court having jurisdiction over the compensation claim of the employee shall determine the controversy. The power of the trial court to determine the ‘necessity of medical or surgical treatment naturally includes the power to determine whether the treatment is necessary due to injuries arising out of and in the course of the employee’s employment or whether the treatment is necessitated by conditions unrelated to the employee’s employment.
“Section 25-5-77 does not address the procedure to decide a dispute over the necessity of medical benefits. Section 25-5-88, Ala.Code 1975, however, states that either party to a controversy brought under the article of the Act providing for medical benefits may file a verified complaint in the circuit court that would have jurisdiction of an action between the same parties arising in tort; once the opposing party has been properly served, ‘said action shall proceed in accordance with and shall be governed by the same rules and statutes as govern civil actions, except as otherwise provided in this article and Article 2 of this chapter and except that all civil actions filed hereunder shall be preferred actions and shall be set down and tried as expeditiously as possible.’ That section further provides: ‘At the hearing ... the court shall hear such witnesses as may be presented by each party, and in a summary manner without a jury ... shall decide the controversy.’ Id.
“Pursuant to § 25-5-88, a controversy regarding the employer’s obligation to pay for medical or surgical treatment obtained by an employee, just like any other controversy arising under the Act, is governed by the Alabama Rules of Civil Procedure, unless the Act provides some other procedure. See, e.g., Ex parte Vance, 900 So.2d 394, 398 n. 7 (Ala.2004); and Shop-A-Snak Food Mart, Inc. v. Penhale, 693 So.2d 479 (Ala.Civ.App.1997). We have not found, and the employee has not directed our attention to, any part of the Act that authorizes a circuit court with jurisdiction over a controversy regarding the necessity of medical benefits to decide, on a motion of the employee filed before a trial and a determination on the merits, that the employer is compelled to provide medical or surgical treatment to the employee. Likewise, our research has not revealed, and the employee has not cited, any cases interpreting the Act as authorizing such a procedure. Hence, we turn to the Alabama Rules of Civil Procedure.
“... In this case, the employee filed a motion with the court seeking an order requiring the employer to pay medical benefits pursuant to the Act. That motion may only be construed as a motion for a judgment on the merits that the employee was entitled to such benefits.
“The Alabama Rules of Civil Procedure recognize two forms of pretrial motions for a judgment. Rule 12(c), Ala. R. Civ. P., authorizes a party to file a motion for a judgment on the pleadings. A trial court may enter a judgment on such a motion when the allegations in the complaint and the averments in the answer show that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Universal Underwriters Ins. Co. v. Thompson, 776 So.2d 81 (Ala.2000). Rule 56, Ala. R. Civ. P., authorizes a party to file a motion for a summary judgment. A trial court may enter a judgment on such a motion when the pleadings and other evidentiary material show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P.
“Our review of the record leads us to conclude that the trial court did not rely on either of those rules....
“As stated by the employer in its briefs, it appears that the trial court deviated from the procedure established in the Act and the Alabama Rules of Civil Procedure by deciding a disputed issue of coverage based on a motion filed by the employee containing only a mere allegation that she had sustained a work-related accident that caused injuries requiring medical and surgical treatment. While the law encourages employers to provide medical benefits voluntarily, see Rule 409, Ala. R. Evid., nothing in the law requires employers to furnish medical benefits to an employee based on the mere allegation that the employee requires medical treatment because of a work-related injury. The employee bears the burden of proving each and every fact prerequisite to a recovery of medical expenses, including the essential threshold fact that he or she sustained a work-related injury that necessitated the medical or surgical treatment obtained. Boyd, supra....
“Because neither the language of the Act nor the Alabama Rules of Civil Procedure authorize the procedure used by the trial court to decide the employer’s obligation to provide medical benefits to the employee, we grant the petition for a writ of mandamus.”

Ex parte Publix, 963 So.2d at 658-61.

We agree with Sunbelt that this case is controlled by our decision in Ex parte Publix. In this case, as in Ex parte Publix, there has been no adjudication determining that Paul’s injury was caused by an accident arising out of and in the course of his employment. Although Sunbelt paid Paul temporary-total-disability benefits under Florida law, Sunbelt has not admitted or conceded that Paul’s injury is com-pensable under the Act. Furthermore, we note that § 25-5-56, Ala.Code 1975, a part of the Act, provides, in pertinent part:

“All moneys voluntarily paid by the employer or insurance carrier to an injured employee in advance of agreement or award shall be treated as advance payments, on account of the compensation. In order to encourage advance payments, it is expressly provided that the payments shall not be construed as an admission of liability but shall be without prejudice.”

Although we are sympathetic to Paul’s condition, the Act does not authorize the trial court to compel payment for medical treatment before a determination of com-pensability. Ex parte Publix, 963 So.2d at 659. Accordingly, the trial court erred in entering the order compelling Sunbelt to pay for Paul’s medical treatment.

Paul’s motion to dismiss the petition is denied. Sunbelt’s motion to strike is denied as moot.

PETITION GRANTED; WRIT ISSUED.

THOMPSON, P.J., and PITTMAN, J., concur.

BRYAN and MOORE, JJ., concur specially.

THOMAS, J., dissents, with writing.

BRYAN, Judge,

concurring specially.

Sunbelt correctly argues that Paul, at this stage of the proceedings, has failed to establish that his injury is compensable under the Alabama Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975 (“the Act”). Sunbelt’s admission of com-pensability under the workers’ compensation law of Florida is not an admission under the Act. Although Florida law and the Act share some similarities, certainly those laws differ in some respects. Accordingly, Sunbelt may have had a good reason for readily admitting compensability under Florida law while not admitting compensability under the Act. Having said that, however, it appears to me that Sunbelt, after authorizing Paul to receive medical treatment from Dr. Fletcher and admitting compensability under Florida law, has essentially pulled the rug out from under Paul by failing to authorize Dr. Fletcher’s continued treatment of Paul. However, I must begrudgingly agree with the main opinion that Sunbelt is not obligated to provide medical treatment to Paul absent a determination of compensability. See Ex parte Publix Super Markets, Inc., 963 So.2d 654 (Ala.Civ.App.2007).

MOORE, Judge,

concurring specially.

In Ex parte Publix Super Markets, Inc., 968 So.2d 654 (Ala.Civ.App.2007), this court specifically held that, in cases in which an employer disputes its liability for medical benefits, a trial court may not award such benefits without first resolving that dispute. This court concluded that Ala.Code 1975, § 25-5-88, mandates that a trial court must resolve any controversy between the parties regarding a worker’s entitlement to medical treatment in accordance with the Alabama Rules of Civil Procedure. 963 So.2d at 658-59. According to Publix, in disputed cases, a trial court cannot simply award medical benefits based on a mere allegation that, because of a work-related injury, the worker needs those benefits. 963 So.2d at 661. Thus, in Publix, this court granted the petition for a writ of mandamus filed by the employer and directed the trial court to vacate its order granting the worker medical benefits under Ala.Code 1975, § 25-5-77, because that order was entered solely on a “motion to compel” filed by the worker that did not satisfy the procedural requirements of a motion for a judgment on the pleadings under Rule 12, Ala. R. Civ. P., or a motion for a summary judgment under Rule 56, Ala. R. Civ. P. 963 So.2d at 659-61.

In this case, on November 15, 2007, Randall Paul (“the employee”) filed a verified petition seeking workers’ compensation benefits from Sunbelt Transport, Inc., and Patriot Transportation Holding, Inc. (collectively “the employer”). In his petition, the employee claimed that he had sustained injuries to his spine while performing the duties of a truck driver for the employer on December 22, 2006. In its answer, filed on June 26, 2008, the employer stated that it did not have sufficient information enabling it to admit or to deny that allegation. Pursuant to Rule 8(b), Ala. R. Civ. P., which applies to workers’ compensation cases, see Ala.Code 1975, § 25-5-88, and Rule 81(a)(31), Ala. R. Civ. P., “[i]f a party is without knowledge or information sufficient to form a belief as to the truth of an averment, the party shall so state, and this has the effect of a denial.” A denial of an allegation in the complaint creates a justiciable controversy between the parties regarding the matter alleged. See Morrow Drilling Co. v. Adkins, 597 So.2d 1365, 1366 (Ala.Civ.App.1992) (trial court did not err in failing to dismiss complaint when employer denied worker was permanently and totally disabled, thus creating a justiciable controversy).

On July 18, 2008, the employee filed a motion to compel the employer to provide surgery to the employee. The employee attached to that motion the affidavit of Dr. Raymond Fletcher, the employee’s authorized physician, in which Dr. Fletcher opined that any delay in surgery would cause the employee daily pain and diminished functionality for several months and that continued denial of surgery would negatively impact the employee’s long-term outcome. The employee did not file any further evidence but, instead, simply relied on that affidavit and moved the court to compel the employer to provide the requested medical treatment. Approximately five hours after the employee electronically filed the motion to compel, the trial court, without a hearing, granted the motion.

On July 22, 2008, the employer filed a motion requesting that the trial court reconsider its order in light of the employer’s effective denial in its answer to the employee’s claim that he had injured his back in a work-related accident and this court’s decision in Publix, supra. The employer specifically argued that it had controverted the compensability of the employee’s claim and that its voluntary payment of temporary-total-disability benefits and providing of medical benefits could not be treated as an admission of liability for the surgery. See Ala.Code 1975, § 25-5-56. The employer asserted that the controversy over the employee’s entitlement to surgery at the employer’s expense could not be resolved by a motion to compel that was not in compliance with the procedure set out in Publix. The trial court denied the motion to reconsider on August 22, 2008, prompting the employer to file a petition for a writ of mandamus in this court.

In response to that petition, the employee points out that, at the time the trial court considered the motion to compel and the motion to reconsider, it had before it a motion to dismiss that was filed by the employer on May 29, 2008, along with a memorandum supporting that motion that was filed on June 9, 2008. In the motion to dismiss, the employer’s attorney averred that the employer had not accepted the claim or paid benefits under Alabama law but, rather, had “accepted [the employee’s] claim as compensable under the Workers’ Compensation Laws of the State of Florida.” The employer also attached to the memorandum the affidavit of Kevin Bruffett, the director of safety for the employer, which was signed on June 6, 2008, in which Bruffett attested that “[t]his claim has been accepted for workers’ compensation benefits under the State of Florida. Payments have been made as provided by the workers’ compensation laws of the State of Florida.” The employer also attached to the memorandum a Florida Department of Financial Services Division of Workers’ Compensation First Report of Injury form that had been filed by the employer, in which the employer voluntarily accepted the employee’s claim as involving medical benefits and lost-time benefits as the result of a December 22, 2006, incident in which the employee had strained his lower middle back while pulling a tarp over his load.

The employee argues that the employer’s admissions in the motion to dismiss and the materials filed in support of that motion nullify any controversy regarding the employee’s right to medical benefits under AIa.Code 1975, § 25-5-77, and, thus, distinguishes this case from Publix. In other words, the employee would have us treat the admissions made by the employer in the motion to dismiss and the supporting materials as judicial admissions. A judicial admission has been defined as:

“ ‘[a]n express waiver made in court or preparatory to trial by the party or his attorney conceding for the purposes of the trial the truth of some alleged fact.... This is what is commonly termed a solemn — i.e., ceremonial or formal — or judicial admission or stipulation. It is, in truth, a substitute for evidence, in that it does away with the need for evidence.
“... ‘It is of the nature of an admission, plainly, that it be by intention an act of waiver relating to the opponent’s proof of the fact and not merely a statement of assertion or concession made for some independent purpose.’ ”

Liberty Nat’l Life Ins. Co. v. Daugherty, 840 So.2d 152, 161 (Ala.2002) (quoting 9 John Henry Wigmore, Evidence in Trials at Common Law §§ 2588 and 2594(2) (Chadbourn rev. ed.1981)). In order for a judicial admission to completely eliminate any controversy between the parties, it must be “ ‘made for the express purpose of relieving [the opposing party] from establishing’ an element of his claim or defense.” George H. Lanier Mem’l Hosp. v. Andrews, 901 So.2d 714, 725 (Ala.2004) (quoting Cook v. Morton, 254 Ala. 112, 116, 47 So.2d 471, 475 (1950)).

In this case, the employer did not admit compensability under Florida law expressly for the purpose of relieving the employee of proving compensability under Alabama law. Rather, its sole purpose in making any statement regarding its acceptance of the claim under Florida law was to, in an effort to have the action dismissed, bolster its position that Alabama law did not apply to the claim. Any questions regarding the employer’s intent were erased by the subsequent filing of its answer in which it effectively denied compensability by stating that it had insufficient information to admit that the employee had been injured as alleged, thus placing the burden squarely on the employee to prove his allegations. Following the reasoning of the employee, that response in the answer would be completely negated by the earlier admissions of the employer.

Although the admissions made by the employer are not judicial stipulations that eliminated the need for the employee to prove the predicate to his recovery of medical benefits, they are not totally without legal import. Relevant admissions made by a party or a party’s attorney in affidavits, pleadings, and motions may be used as evidence against the party to establish the facts admitted. See, generally, Craze v. Davis, 693 So.2d 514, 516 (Ala.Civ.App.1997); City of Gulf Shores v. Harbert Int’l, 608 So.2d 348 (Ala.1992); and Alabama Water Co. v. City of Anniston, 223 Ala. 355, 135 So. 585 (1930). Likewise, admissions made by an employer in a first report of injury have been used to prove the circumstances of a worker’s injury. See W.T. Smith Lumber Co. v. Raines, 271 Ala. 671, 127 So.2d 619 (1961). The employee properly could have filed a motion for a summary judgment citing the admissions as evidence that there is no genuine issue of material fact regarding the com-pensability of the employee’s claim. The key distinction, however, is that such evi-dentiary admissions are not conclusive against the party and may be explained, contradicted, or rebutted by other evidence. See 29A Am.Jur.2d Evidence § 785 (2008). We do not know whether the employer could have or would have presented contradictory evidence to establish a genuine issue of material fact because the employee did not file a motion for a summary judgment and, thus, never placed the burden on the employer to come forward with its counter evidence.

In summary, properly viewing the admissions as evidentiary, as opposed to judicial, in nature, the trial court could not have relied upon those admissions to determine that the parties were not at controversy over the compensability of the employee’s injuries. Because a present controversy remained, the trial court had to resolve that dispute in accordance with the Rules of Civil Procedure before awarding the employee medical benefits. Like the trial court in Publix, the trial court in this case, by awarding the employee medical benefits on a “motion to compel,” did not follow the Rules of Civil Procedui*e. Therefore, I concur that the petition for a writ of mandamus should be granted and that the order compelling the employer to provide the surgery for the employee should be vacated.

THOMAS, Judge,

dissenting.

Because I would deny the petition for the writ of mandamus, I respectfully dissent. The majority of the court has decided to grant the petition and to issue the writ because, relying on Ex parte Publix Super Markets, Inc., 963 So.2d 654 (Ala.Civ.App.2007), it believes that a compensa-bility hearing should be held in this case before Sunbelt is required to pay for Randall Paul’s surgery.

First, I believe this case is distinguishable from Ex parte Publix. In Publix, the employee sought to compel the employer to provide her with medical treatment based on the “mere allegation” that she was entitled to treatment. 963 So.2d at 661. The employer had denied the employee’s workers’ compensation claim from the outset of the litigation. Here, Sunbelt neither admitted nor denied, in its answer to Paul’s complaint, that Paul had suffered a work-related injury, but it authorized Paul to be treated by Dr. Raymond Fletcher, an orthopedic surgeon in Baldwin County, and it paid for Paul’s treatment by Dr. Fletcher. Although Sunbelt’s payment of Paul’s medical expenses cannot be construed as an admission of liability, it does indicate that Paul’s treatment was obtained with Sunbelt’s authorization. See Fluor Enters., Inc. v. Lawshe, 16 So.3d 96 (Ala.Civ.App.2009); 2 Terry A. Moore, Alabama Workers’ Compensation § 17:16 at 32 (1998):

“[I]f the employer with full knowledge that the employee is seeing a physician fails to object thereto over a substantial period of time, it may be inferred that the employer approves of the physician for purposes of the statute requiring authorization.”

Second, I believe that Sunbelt obviated the need for a compensability hearing in this case when it moved to dismiss Paul’s complaint on May 29, 2008, and admitted that it had “accepted [Paul’s] claim as com-pensable under the Workers’ Compensation laws of the State of Florida and ha[d] paid benefits accordingly.” With respect to the test for compensability, Florida law is essentially identical to Alabama law. See § 440.02(19), Fla. Stat. (2006) (providing that “ ‘[i]njury’ means personal injury or death by accident arising out of and in the course of employment, and such diseases or infection as naturally or unavoidably result from such injury.... ”) (emphasis added).

Florida courts, like Alabama courts, have held that the “arising out of’ and “in the course of’ requirements of the definition of “injury” are conjunctive, i.e., that both must be proved in order to establish compensability. See, e.g., Strother v. Morrison Cafeteria, 383 So.2d 623 (Fla.1980); Southern Bell Tel. & Tel. Co. v. McCook, 355 So.2d 1166, 1169 (Fla.1977); Hill v. Gregg, Gibson & Gregg, Inc., 260 So.2d 193, 195 (Fla.1972); Fidelity & Cas. Co. of New York v. Moore, 143 Fla. 103, 105, 196 So. 495, 496 (1940); and Aloff v. Neff-Harmon, Inc., 463 So.2d 291, 295 (Fla.Dist.Ct.App.1984). An early Florida Supreme Court opinion explained:

“[F]or an injury to arise out of and in the course of one’s employment, there must be some causal connection between the injury and the employment or it must have had its origin in some risk incidental to or connected with the employment or that it flowed from it as a natural consequence. Another definition widely approved is that the injury must occur within the period of the employment, at a place where the employee may reasonably be, and while he is reasonably fulfilling the duties of his employment or engaged in doing something incidental to it.”

Fidelity & Cas. Co. of New York v. Moore, 143 Fla. at 105, 196 So. at 496.

In Moore, an automobile dealership maintained a 24-hour service for its customers and required Moore, an officer of the company and the manager of the parts department, to be available at any time. Moore left the dealership on a Sunday evening, took his wife home, and was on his way back to the dealership when his vehicle struck a tree. Moore died a few days later from the injuries he sustained in the collision. The Florida Industrial Commission awarded Moore’s widow workmen’s compensation benefits. The compensation carrier appealed to the circuit court, which affirmed the award. The Florida Supreme Court reversed the circuit court’s judgment, holding that

“[w]hen the accident which resulted in Moore’s death took place, he was on a mission purely personal to himself and wife and had no connection whatever with his employment; it did not flow from nor was it in any way incident to his employment.... [A]n employee is not covered by the Workmen’s Compensation Act if injured on a personal mission.
“.... This must be the rule, otherwise the requirement that the accident arise out of and in connection with the employment is meaningless. It is not questioned that the deceased was at the time of his death on a very laudable mission, but that does not bring it within the terms of the act. It took place on a Sunday evening when [Moore] was not responding to a business call and he was on a mission in no way connected with the business.”

143 Fla. at 106, 196 So. at 496. The court also stated:

“Much is said in the briefs of counsel about the presumption indulged in by the Workmen’s Compensation Act to the effect that in the absence of substantial evidence to the contrary, it will be presumed that the claim comes within the provision of the act, relieving the claimant of the burden of proving that the injury arose out of and in the course of the employment.
“That presumption has no application in this case. In the first place, it does not relieve against proving that the accident occurred and that it arose out of and in course of the employment. In the second place, we understand that this presumption is like all others, applicable only in the absence of evidence and that when substantial evidence of a fact is submitted, the presumption vanishes.”

143 Fla. at 106-07, 196 So. at 497. The statutory presumption referred to in Moore was found at § 440.26, Fla. Stat. (1941), which provided:

“In any proceeding for the enforcement of a claim for compensation under this chapter it shall be presumed, in the absence of substantial evidence to the contrary—
“(1) That the claim comes within the provisions of this chapter.
“(2) That sufficient notice of such claim has been given.
“(3) That the injury was not occasioned primarily by the intoxication of the injured employee.
“(4) That the injury was not occasioned by the willful intention of the injured employee to injure or kill himself or another.”

That presumption was applied, in the main, to fatal unwitnessed accidents. See Olsen v. Winter Park Racquet Club, 142 So.2d 5 (Fla.1962)(caretaker of tennis court found dead in chlorinating room of employer’s premises during working hours); Cone Bros. Contracting Co. v. Allbrook, 153 Fla. 829, 16 So.2d 61 (1943) (truck driver killed in collision with truck driven by co-employee); Sims Tire Serv. v. Parker, 146 Fla. 23, 200 So. 524 (1941) (employee fatally injured in automobile collision at night after leaving employer’s place of business); Fidelity & Cas. Co. v. Moore, supra. See generally .Annot., Workmen’s Compensation: Presumption or Inference that Accidental Death of Employee Arose Out of and in the Course of Employment, 120 A.L.R. 683 (1939).

Section 440.26, Fla. Stat., however, was repealed effective July 1, 1990. See 1990 Fla. Laws c. 90-201, § 26; and 1991 Fla. Laws c. 91-1, § 24. With respect to the test for compensability, Florida law is now consistent with Alabama law.

It is undisputed that Dr. Fletcher recommended surgery for Paul and opined that

“delay in surgical treatment is expected to result in pain on a day-to-day basis as well as diminished functionality over the next several months.... Denial of surgical treatment will continue to have a negative impact on this patient’s long-term outcome.”

Athough Dr. Fletcher did not explicitly state that the surgery he recommended for Paul was necessary to treat a condition caused by a work-related injury, Sunbelt has “accepted [Paul’s] claim as compensa-ble” and has paid for the treatment incident to Paul’s injury, and, our cases have held, it may not now withdraw its authorization for Dr. Fletcher to continue treating Paul.

“The purpose of the medical provisions of the [Workers’ Compensation] Act is to assure healing for the employee with physicians approved by the employer. The Sunnyland Foods [, Inc. v. Catrett, 395 So.2d 1005 (Ala.Civ.App.1980),] and City of Auburn [v. Brown, 638 So.2d 1339 (Ala.Civ.App.1993) ], cases ... indicate that the employer cannot withdraw approval or dictate treatment once a provider has been approved.”

Waffle House, Inc. v. Howard, 794 So.2d 1123, 1129-30 (Ala.Civ.App.2000).

      . We note that Paul could have moved for a partial summary judgment on the issue of the compensability of his injury. See, e.g., B E & K Constr. Co. v. Hayes, 666 So.2d 1, 2 (Ala.Civ.App.1995); and Winn-Dixie Stores, Inc. v. Smallwood, 516 So.2d 716, 717 (Ala.Civ.App.1987).

      . The employee makes no argument that the employer lacked substantial justification for its averment that it did not have sufficient information to admit or deny the compensa-bility of the injury or that the employer's attorney was without knowledge, information, or belief that there was good ground for that response. Hence, we have not been asked to consider the effects of the filing of a sham denial of compensability on the Publix rule.

      . In Rayburn v. State, 366 So.2d 708, 709-10 (Ala.1979), the Alabama Supreme Court stated:
      "All appellate courts must, through research, obtain knowledge of their own state’s legislative acts and judicial decisions in order to interpret statutes and apply the law to the facts. This is not judicial notice,' as that term is used in the law of evidence, but may be more properly characterized as judicial knowledge' gained through research. The determination of what is the forum state's law is a fundamental part of the judicial function.
      "There is no justification, other than the notice requirements of Rule 44.1, [Ala. R. Civ. PJ, for treating a question of a foreign state's law any differently from a question of the laws of Alabama. Committee Comment, Rule 44.1, [Ala. R. Civ. P.]. See C. Wright & A. Miller, [Federal Practice and Procedure: Civil] § 2446 [(1971)]. Determination of foreign law, like any other question of law before an appellate court, may be resolved by reference to the foreign state's statutory and case law.”