author: GREENLEE, J., FOR THE COURT:

text:
    IN RE ESTATE OF Rae C. SAGET:
    Kappi Saget Jeffers, Appellant v. Korri Saget, Appellee
    NO. 2017-CA-00591-COA CONSOLIDATED WITH NO. 2015-CA-01280-COA
    Court of Appeals of Mississippi.
    April 3, 2018 Rehearing Denied August 21, 2018
    ATTORNEY FOR APPELLANT: DAVID M. SESSUMS, VICKSBURG
    ATTORNEY FOR APPELLEE: WREN CARROLL WAY, VICKSBURG
    BEFORE LEE, C.J., FAIR AND GREENLEE, JJ.
   GREENLEE, J., FOR THE COURT:

¶ 1. This appeal arises from Kappi Saget Jeffers challenging the validity of changes made by her mother, Rae Saget, to beneficiary designations for four of her mother's investment accounts, and her mother's will. The issue before us is the validity of her mother's changes to the beneficiaries for the investment accounts. The issue of the will's validity is not before this Court. Following the trial on the will's validity, the parties agreed that the necessary proof was before the court and a final judgment should be entered regarding the beneficiary designations for the investment accounts. In her final judgment, the chancellor found that Rae possessed the capacity to make the changes to her investment-account beneficiaries. The chancellor also found that Kappi failed to prove undue influence by clear and convincing evidence. Concerning the allegation that Korri Saget, Kappi's sister, had unduly influenced Rae, the chancellor did not find that the required confidential relationship existed between Korri and Rae. Rather, the chancellor discussed the testimony presented on whether a confidential relationship existed. Kappi appeals from this decision. Finding no error, we affirm.

STATEMENT OF FACTS

¶ 2. Rae died on January 6, 2014 in Vicksburg, Mississippi. Her husband predeceased her, and Rae was survived by her two children Kappi and Korri. Kappi lived in Vicksburg, and Korri lived in Houston, Texas. At the time of her death, Rae owned four investment accounts.

¶ 3. Rae opened these four investment accounts with Kerry Ricks at Morgan Stanley Financial Service Company in 2006. One of these accounts, an Individual Retirement Account (IRA), required at least one named beneficiary. Rae named her daughters as equal beneficiaries. The other three accounts, known as Transfer-on-Death (TOD) accounts, did not require a named beneficiary, but rather that Rae designate to whom the money was to be transferred upon her death. Rae designated that the money in these accounts should transfer to both daughters equally upon her death.

¶ 4. For the next eight years-from 2006 until her death-Ricks assisted Rae with her Morgan Stanley accounts, usually speaking with her about her investments twice a year. On August 22, 2012, Rae called Ricks and gave him instructions to remove Kappi as a beneficiary on the IRA and to remove her as a transferee (beneficiary) upon death from the other three accounts. Later that same day, Rae arrived alone in Rick's office and signed the required paperwork, removing Kappi from all four of her Morgan Stanley accounts. Rae died over a year later on January 6, 2014.

PROCEDURAL HISTORY

¶ 5. On February 18, 2014, Korri filed a petition to probate Rae's will followed by Kappi's "Answer to Petition to Probate Will and Counter-Complaint to Set aside Conveyance of Personal Property and for recovery of Assets." In her answer and counter-complaint, Kappi alleged that Rae's 2012 will was invalid because Rae lacked testamentary capacity and the will was a product of undue influence, requesting a trial by jury on that issue. She also alleged that Rae lacked capacity to put Korri's name as the sole beneficiary and that the change in beneficiary was a product of undue influence. The issue of the will's validity was tried before a jury and resulted in a mistrial.

¶ 6. Additionally, the parties agreed that the evidence presented to the jury during the will contest was the same evidence involved in Kappi's assertion that the change in investment-account beneficiaries was a product of undue influence. Therefore, the attorneys, presenting no more evidence, agreed that a judgment could be entered regarding the investment accounts. Accordingly, the chancellor entered a "Final Judgment" denying Kappi's petition for the recovery/collection of assets and the counterclaim to set aside the conveyance of personal property and for recovery of assets. This judgment previously was appealed wherein this Court found that the "Final Judgment" was not certified pursuant to Rule 54(b) and dismissed the appeal for lack of jurisdiction.

¶ 7. On March 30, 2017, the chancellor amended her final judgment to include a Rule 54(b) certification and again denied Kappi's petition for the recovery/collection of assets and counterclaim to set aside the conveyance of personal property and for recovery of assets. This appeal followed.

STANDARD OF REVIEW

¶ 8. "This Court reviews the chancellor's decisions under an abuse of discretion standard." Estate of McCorkle v. Beeson , 27 So.3d 1180, 1184 (¶ 11) (Miss. Ct. App. 2009). Under this standard, this Court will not "disturb a chancellor's findings of fact unless those findings are manifestly wrong, clearly erroneous, or an erroneous legal standard was applied." In re Estate of Hart , 20 So.3d 748, 752 (¶ 10) (Miss. Ct. App. 2009) (internal quotations omitted). Therefore, "[i]f the Chancellor's findings are supported by substantial, credible evidence in the record, this Court will not reverse." Wright v. Roberts , 797 So.2d 992, 997 (¶ 14) (Miss. 2001). This is similarly true "whether the fact be found expressly or by necessary implication" and "whether the finding of fact relates to an evidentiary fact or ... ultimate fact." Spain v. Holland , 483 So.2d 318, 320 (Miss. 1986). Therefore, "where a chancellor does not make explicit findings, this Court on appeal will assume all disputed issues were resolved in favor of the appellees." Ross v. Brasell , 511 So.2d 492, 495 (Miss. 1987). However, issues of law are reviewed de novo. In re Estate of Hart , 20 So.3d at 752 (¶ 10).

DISCUSSION

¶ 9. Kappi raises three issues on appeal. First, she argues that the chancellor erred in finding that she, as the contestant, had the burden of proving undue influence. Secondly, she argues that the chancellor erred by not finding that once a confidential relationship was found between Korri and Rae, a presumption of undue influence arose. Thirdly, she argues that the chancellor erred in applying an incorrect legal standard regarding the presumption of undue influence. Finding that the chancellor's determination was not manifestly in error, we affirm.

¶ 10. "Mississippi law is well-settled regarding ... confidential relationships and undue influence." Wheeler v. Wheeler , 125 So.3d 689, 693 (¶ 12) (Miss. Ct. App. 2013). This law applies equally to testamentary and inter vivos gifts. Id. When asserting undue influence, the initial burden is on the contestant/plaintiff to show "by clear and convincing evidence, the existence of a confidential relationship between a grantor and a defendant grantee[.]" Howell v. May , 983 So.2d 313, 318 (¶ 14) (Miss. Ct. App. 2007). The supreme court has stated that such a "confidential relationship arises when a dominant, over-mastering influence controls over a dependent person or trust, justifiably reposed." Wright v. Roberts , 797 So.2d 992, 998 (¶ 17) (Miss. 2001). Once the existence of a confidential relationship is shown, a presumption of undue influence arises, and "the burden of proof shifts to the beneficiary/grantee to show by clear and convincing evidence that the gift was not the product of undue influence." Id. at (¶ 16). Further, the supreme court has enumerated several factors to be considered when determining the existence of the confidential relationship:

(1) whether one person has to be taken care of by others, (2) whether one person maintains a close relationship with another, (3) whether one person is provided transportation and has their medical care provided for by another, (4) whether one person maintains joint accounts with another, (5) whether one is physically or mentally weak, (6) whether one is of advanced age or poor health, and (7) whether there exists a power of attorney between the one and another.

In re Estate of Lane , 930 So.2d 421, 425 (¶ 13) (Miss. Ct. App. 2005) (quoting In re Dabney , 740 So.2d 915, 919 (¶ 12) (Miss. 1999) ).

¶ 11. In the present case, Kappi asserts that the chancellor found that the required confidential relationship existed, and, therefore, the burden shifted to Korri to prove the non-existence of her undue influence over Rae. However, Kappi's assertion is neither supported by the evidence nor the record. The chancellor did not make a finding that Kappi had proven the required confidential relationship existed between Rae and Korri. Moreover, in her judgment, the chancellor discussed and analyzed all seven of the Lane factors. From this analysis it is apparent that there was a lack of clear and convincing evidence of the existence of the required confidential relationship.

¶ 12. The chancellor, in her discussion of the Lane factors, found that: (1) insufficient evidence was produced to show Rae was taken care of by others; (2) Rae and Korri had a close relationship; (3) insufficient evidence was produced to show Rae was provided transportation or medical care by others; (4) Rae and Korri maintained a joint bank account; (5) Rae was not physically or mentally weak as she "knew what she wanted and was very clear about it;" (6) Rae was in poor health; and (7) there was no power of attorney. These determinations by the chancellor were supported by substantial evidence. We further note that Korri resided in Houston, Texas and Rae continued to live in Vicksburg, Mississippi until her death-over a year after the changes were made to the investment account designations. The chancellor was correct in not making a finding that clear and convincing evidence showed that Korri had exerted the required confidential relationship over Rae. The chancellor went further, finding that there was no undue influence exerted upon Rae in changing the beneficiaries on the investment accounts.

¶ 13. During the hearing on the matter, the chancellor heard from several witnesses including some of Rae's family and friends. The chancellor found that there was conflicting testimony as to whether Rae was taken care of by others and whether Rae was provided transportation and medical care by others. Therefore, it was the chancellor's job as trier of fact to determine which version she found more credible. LeBlanc v. Andrews , 931 So.2d 683, 689 (¶ 19) (Miss. Ct. App. 2006).

¶ 14. While the record clearly shows that Rae was in poor health, having had numerous surgeries and health issues, the record also indicates that she was a strong-willed woman who "knew what she wanted and was very clear about it." Several non-family witnesses who spoke with Rae on the day she made the changes to the investment account beneficiaries testified that Rae appeared neither physically nor mentally weak. One such witness, Mittie Town Warren, a close friend of Rae's, testified that "[Rae] knew what she had" and that "[w]hen she made her mind to do something, then that's what she was going to do and she did it." Further, Warren testified that she would see Rae two to three times per week and that on August 23, 2012, "[Rae] knew exactly what she was doing. Nobody influenced her." Notwithstanding the assertion of Kappi on appeal, the chancellor did not find that Korri had the required confidential relationship with Rae. Furthermore, the chancellor was correct in finding that the beneficiary changes to the accounts were valid.

CONCLUSION

¶ 15. After reviewing the record, we find that the chancellor did not commit manifest error in not finding that Kappi proved undue influence by clear and convincing evidence. The chancellor clearly considered and assessed all seven Lane factors for a confidential relationship. As the chancellor did not find that the required confidential relationship existed, the presumption of undue influence never arose for Korri to rebut. Therefore, the chancellor did not commit manifest error in finding that the changes in the investment account beneficiaries were valid.

¶ 16. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON, WESTBROOKS AND TINDELL, JJ., CONCUR.

      The issue of the will's validity was tried before a jury, which resulted in a mistrial.

      For the remainder of this opinion, the IRA account and TOD accounts are collectively referred to as "investment accounts."

      The record reflects that the final judgment that was appealed is the "Amended Final Judgment" dated March 30, 2017, which discusses only the four investment accounts and explicitly states: "The validity of the last will was submitted to a jury which resulted in a mistrial. It is not an issue presently before the court."

      The 2015 appeal was dismissed on March 21, 2017. See Jeffers v. Saget , 235 So.3d 103 (Miss. Ct. App. 2017). After dismissal, the chancellor amended the judgment to include a Rule 54 certification, and the present appeal was brought. Therefore, the 2015 appeal and present appeal were "consolidated" for record purposes.

      The chancellor's "Amended Final Judgment" does not find that a confidential relationship existed nor does it explicitly state that Kappi failed to prove a confidential relationship by clear and convincing evidence.

      Though appellate courts would prefer that trial court judges make explicit findings on issues we review on appeal, when chancellors make decisions based upon substantial evidence and discuss the required factors leading to informed decisions, we should not reverse for form over substance. See Spain v. Holland , 483 So.2d 318, 320 (Miss. 1986).


source: Caselaw Access Project

author: LEE, C.J., FOR THE COURT:

license: Public Domain

text:
    Chris Andre FAIRLEY a/k/a Chris Fairley, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-00482-COA
    Court of Appeals of Mississippi.
    April 10, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: ERIN ELIZABETH BRIGGS,
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELAND BYRD, Jackson
    BEFORE LEE, C.J., BARNES AND TINDELL, JJ.
   LEE, C.J., FOR THE COURT:

¶ 1. Chris Fairley was convicted of murder and sentenced to life in the custody of the Mississippi Department of Corrections. In this appeal, we must determine whether Fairley's right to confront a witness against him was violated and whether the evidence was sufficient to support his conviction. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. It is undisputed that Fairley shot and killed his cousin, Mark Fairley, outside of a local shaved-ice stand in Biloxi, Mississippi, on July 15, 2015. Although Fairley claimed to have shot Mark in self-defense, a Harrison County Circuit Court jury found Fairley guilty of deliberate-design murder in violation of Mississippi Code Annotated section 97-3-19(1)(a) (Rev. 2014).

¶ 3. On the day in question, Fairley, his pregnant girlfriend, and their two minor children arrived at the shaved-ice stand. Fairley's girlfriend, MeShawn McCauley, exited the car to retrieve shaved ice for the family. Shortly after, Mark drove into the parking lot, parking near Fairley's car. According to Fairley, he and Mark had a strained relationship. Fairley testified that Mark had threatened to kill him in the past. Witnesses disagreed as to whether McCauley first confronted Mark or whether Mark first confronted both Fairley and McCauley. Regardless, after arguing, all three retreated to their respective cars. Mark got into his car and proceeded to back away, but exited his car and continued arguing with Fairley. At some point, Fairley reached into his car, grabbed a gun, and shot Mark.

¶ 4. Two eyewitnesses observed the shooting. One witness, Gary Gage, testified that he was sitting in his car at the shaved-ice stand when he saw Fairley and McCauley arguing with Mark. The other eyewitness, John Condon, was in a local gym that shared a parking lot with the shaved-ice stand. Both saw Fairley shoot Mark and continue to shoot Mark several more times as Mark turned back toward his car. Neither one saw a weapon in Mark's hands or thought Fairley was in any danger from Mark. Gage estimated that Fairley and Mark were standing approximately fifteen feet apart when Fairley fired the first shot.

¶ 5. Dr. Mark LeVaughn, chief medical examiner for the State of Mississippi, testified that Mark had been shot three times, with the fatal gunshot wound to Mark's head. Fairley objected to Dr. LeVaughn's testimony since Dr. LeVaughn had not performed the autopsy. The trial court overruled Fairley's objection.

¶ 6. According to testimony by police officers who responded to the scene, no weapon was found in Mark's car or on the ground near Mark's car. Additionally, five shell casings were recovered from the scene.

¶ 7. Fairley testified in his own defense. Fairley stated that he shot Mark because he thought Mark had a gun. Fairley said he was worried for the safety of his girlfriend and their children. McCauley also witnessed Fairley shoot Mark. She testified that she was afraid of Mark and that she thought Mark might kill them. But she admittedly did not see a weapon in Mark's hand prior to the shooting.

DISCUSSION

I. Dr. LeVaughn's Testimony

¶ 8. Fairley claims his right to confrontation was violated when the trial court admitted Dr. LeVaughn's testimony because Dr. LeVaughn was not the medical examiner who performed Mark's autopsy or authored the autopsy report. The medical examiner who performed the autopsy, Dr. Erin Barnhart, no longer worked at the medical-examiner's office. The autopsy report itself was not admitted into evidence.

¶ 9. Our "standard of review regarding admission or exclusion of evidence is abuse of discretion." Jenkins v. State , 102 So.3d 1063, 1065 (¶ 7) (Miss. 2012) (citation omitted). But we review constitutional issues de novo. Id.

¶ 10. The United States and Mississippi Constitutions guarantee the right of the defendant to confront witnesses against him. U.S. Const. amend. VI ; Miss. Const. art. 3, § 26. "The United States Supreme Court has held that the Sixth Amendment Confrontation Clause bars the admission of 'testimonial statements' made by a witness who does not appear at trial, unless the witness is unavailable and the defendant had a prior opportunity to cross-examine him." Jenkins , 102 So.3d at 1066 (¶ 9) (citing Crawford v. Washington , 541 U.S. 36, 53-54, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) ). "Forensic laboratory reports created specifically to serve as evidence against the accused at trial are among the 'core class of testimonial statements' governed by the Confrontation Clause." Id. (citing Melendez-Diaz v. Massachusetts , 557 U.S. 305, 310, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009) ). See also Bullcoming v. New Mexico , 564 U.S. 647, 664-65, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011).

¶ 11. However, the Mississippi Supreme Court has held that, "[b]y contrast, when the testifying witness is a court-accepted expert in the relevant field who participated in the analysis in some capacity, such as by performing procedural checks, then the testifying witness's testimony does not violate a defendant's Sixth Amendment rights." McGowen v. State , 859 So.2d 320, 339 (¶ 68) (Miss. 2003). We apply a two-part test when determining whether a witness satisfies the defendant's right to confrontation:

First, we ask whether the witness has "intimate knowledge" of the particular report, even if the witness was not the primary analyst or did not perform the analysis firsthand. Second, we ask whether the witness was "actively involved in the production" of the report at issue. We require a witness to be knowledgeable about both the underlying analysis and the report itself to satisfy the protections of the Confrontation Clause.

England v. State , 195 So.3d 830, 833-34 (¶ 12) (Miss. Ct. App. 2016) (quoting Jenkins , 102 So.3d at 1067 (¶ 13) ).

¶ 12. In Christian v. State , 207 So.3d 1207, 1213 (¶ 21) (Miss. 2016), the Mississippi Supreme Court rejected a similar argument. In Christian , Dr. Barnhart was tendered as the pathology expert, but Dr. Adel Shaker had performed the actual autopsy. Id. At the time of Christian's trial, Dr. Shaker no longer worked at the medical-examiner's office. Id. Dr. Barnhart testified that she examined the autopsy, photographs, and case notes and concluded that the victims had died of gunshot wounds. Id. The supreme court ultimately concluded that Dr. Barnhart's testimony did not serve as a "mere conduit for the content of Dr. Shaker's notes." Id. at (¶ 26).

¶ 13. Like Dr. Barnhart in Christian , Dr. LeVaughn testified that, although he did not perform the actual autopsy procedures, he examined the autopsy reports, along with the photographs and case notes. He also consulted with Dr. Barnhart at the time of the autopsy, testifying that he reviewed and discussed the report with Dr. Barnhart prior to signing off on the report. And he concluded based on a reasonable degree of medical certainty that Mark died from gunshot wounds. We find no violation here.

¶ 14. Fairley further suggests that our supreme court's holdings in McGowen , 859 So.2d at 320, and Grim v. State , 102 So.3d 1073 (Miss. 2012), are in conflict with the Supreme Court's holdings in Melendez-Diaz and Bullcoming . However, the Fifth Circuit Court of Appeals and our supreme court have held otherwise. See Grim v. Fisher , 816 F.3d 296, 307 (5th Cir. 2016) (Neither Melendez-Diaz nor Bullcoming established a rule of federal law that "when the prosecution introduces a forensic laboratory report containing a testimonial certification ...[,] the only witness whose in-court testimony can satisfy the Confrontation Clause is the analyst who performed the underlying analyses contained in the report."); Christian , 207 So.3d at 1223 (¶ 80) (Maxwell, J., concurring) ("[O]ur Court's pre- Crawford and pre- Bullcoming test for the sufficient degree of involvement to satisfy the Confrontation Clause is still good law."); Armstead v. State , 196 So.3d 913, 921 (¶ 21) (Miss. 2016) (finding the defendant's argument that Grim was contrary to established federal law to be without merit). This argument is without merit.

II. Sufficient Evidence

¶ 15. Fairley claims that the evidence was not sufficient to convict him of murder. He argues that at most, he was guilty of heat-of-passion manslaughter or imperfect self-defense. In reviewing the sufficiency of the evidence, "the critical inquiry is whether the evidence shows beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed[.]" Bush v. State , 895 So.2d 836, 843 (¶ 16) (Miss. 2005) (citation and internal quotation marks omitted) (abrogated on other grounds by Little v. State , 233 So.3d 288 (Miss. 2017) ). If, viewing the evidence in the light most favorable to the State, any rational trier of fact could have found, beyond a reasonable doubt, that the essential elements of the crime existed, this Court will affirm the conviction. Id. Furthermore, it is well-settled law that the jury determines the credibility of the witnesses and resolves conflicts in the evidence. Davis v. State , 866 So.2d 1107, 1112 (¶ 17) (Miss. Ct. App. 2003).

¶ 16. Section 97-3-19(1)(a) defines deliberate-design murder as "[t]he killing of a human being without the authority of law by any means or in any manner ... [w]hen done with deliberate design to effect the death of the person killed, or of any human being[.]" The State must prove beyond a reasonable doubt that: "(1) the defendant killed the victim; (2) without authority of law; and (3) with deliberate design to effect his death." Brown v. State , 965 So.2d 1023, 1030 (¶ 27) (Miss. 2007). "Deliberate design to kill a person may be formed very quickly, and perhaps only moments before the act of consummating the intent." Id. at (¶ 28) (citations omitted). "Deliberate-design connotes an intent to kill and may be inferred through the intentional use of any instrument which, based on its manner of use, is calculated to produce death or serious bodily injury." Id. (citation omitted).

¶ 17. The evidence presented at trial showed that Fairley and Mark argued; Fairley first shot Mark from approximately fifteen feet away; Mark ran toward his car; Fairley followed him and continued to shoot at him; and Mark did not have a weapon in his car or near his body.

¶ 18. Here, the jury was instructed on murder, heat-of-passion manslaughter, imperfect self-defense, and self-defense. It was for the jury to decide whether the elements of murder were proven by the State. Viewing the evidence in the light most favorable to the State, we find that the evidence was legally sufficient to support the verdict. This issue is without merit.

¶ 19. AFFIRMED.

IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

      We reiterate that Fairley admittedly shot and killed Mark.


author: SHAW, Justice. SELLERS, Justice (dissenting).

text:
    Hershel Eugene EASTERLING, individually and as personal representative of the Estate of Charlotte Easterling v. PROGRESSIVE SPECIALTY INSURANCE COMPANY
    1150833
    Supreme Court of Alabama.
    September 15, 2017
    J. Craig Lewis of Wettermark & Keith, LLC, Birmingham, for appellant.
    Paul A. Miller and Patrick W. Franklin of Miller, Christie & Kinney, P.C., Vestavia Hills, for appellee.
   SHAW, Justice.

Hershel Eugene Easterling, both individually and as the personal representative of the estate of Charlotte Easterling, appeals from a summary judgment in favor of Progressive Specialty Insurance Company ("Progressive") on his claims seeking uninsured/underinsured-motorist ("UIM") benefits. We reverse and remand.

Facts and Procedural History

In December 2014, Hershel and his wife, Charlotte Easterling, were injured when their vehicle was rear-ended in Chilton County by a vehicle driven by Ashley Marie McCartney. In April 2015, the Easterlings sued McCartney in the Chilton Circuit Court, alleging that McCartney behaved negligently and/or wantonly at the time of the accident. The Easterlings' complaint also named Progressive, their insurer, as a defendant and included a count seeking to recover UIM benefits from Progressive.

Following the filing of the underlying action, Charlotte died. Subsequently, an estate was opened and Hershel was appointed personal representative of Charlotte's estate. The trial court later granted Hershel's motion seeking to substitute himself, in that capacity, as a named plaintiff.

Before trial, McCartney filed a "Suggestion of Bankruptcy" informing the trial court of her initiation of bankruptcy proceedings and asserting, as a result, that, because the underlying action was allegedly "founded on a claim that a bankruptcy discharge would release," the instant case "should be ceased." In response, Progressive filed a motion and supporting brief requesting a summary judgment in its favor on Hershel's UIM claim. Specifically, Progressive argued that, under Alabama law, a plaintiff may seek to recover UIM benefits from his insurer only if the plaintiff is "legally entitled to recover damages" from the tortfeasor. See § 32-7-23(a), Ala. Code 1975. Progressive contended that, because McCartney's bankruptcy filing "foreclose[d] [McCartney's] legal obligation to pay debts"-including any judgment recovered against her by Hershel-Hershel was not legally entitled to recover from McCartney in excess of McCartney's own liability-insurance policy limits and, thus, Hershel's claim for UIM benefits accordingly failed as a matter of law.

In support of its position, Progressive cited, and sought to have applied, the rationale of cases in which this Court has interpreted the phrase "legally entitled to recover" to prevent the recovery of UIM benefits, including a workers' compensation plaintiff's inability to recover from a co-employee and a plaintiff's inability to recover damages in excess of a statutory cap when the defendant is a governmental entity. See Kendall v. United Servs. Auto. Ass'n, 23 So.3d 1119, 1125 (Ala. 2009) ("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 [tortfeasors]; therefore, she could not recover UIM benefits from her insurer."), and Ex parte Carlton, 867 So.2d 332, 338 (Ala. 2003) ("The workers' compensation benefits Carlton received are his only remedy against his employer.... Therefore, Carlton 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."). Progressive maintained that its reasoning was not contrary to the purpose behind Alabama's statute requiring UIM coverage but that it was, instead, part and parcel of the purported condition precedent to recovery under that statute, namely, "the legal entitlement to recover from the tortfeasor the amount sought from the [UIM] carrier."

In his response to Progressive's motion, Hershel disagreed that the Bankruptcy Code operated to prevent recovery as Progressive alleged. According to him, "[t]he [B]ankruptcy [C]ode ... is not set up to protect ... [an] entity from payments which they are contractually obligated to pay through an agreement with an innocent third party." He further observed that, according to 11 U.S.C. § 524(e), "discharge of the debtor [in bankruptcy] does not affect the liability of any other entity ... for such debt." According to those principles, Hershel maintained that the authorities cited by Progressive were inapposite and that Progressive's summary-judgment motion was due to be denied.

Following a hearing, the trial court granted Progressive's motion based on the holding that, because of McCartney's Chapter 7 bankruptcy filing, "[Hershel could] no longer obtain a judgment that ... McCartney would be responsible for that would invoke the UM/UIM carrier to pay." The trial court, finding "no just reason for delay," certified its judgment as final pursuant to the requirements of Rule 54(b), Ala. R. Civ. P.

Subsequently, Hershel filed a postjudgment motion requesting that the trial court "reconsider" its summary-judgment ruling. Before the trial court's disposition of that request, Hershel filed a notice of appeal to this Court.

Standard of Review

" ' "This Court's review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala. 2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-53 (Ala. 2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala. 1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce 'substantial evidence' as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala. 1989) ; Ala. Code 1975, § 12-21-12. '[S]ubstantial 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 Assur. Co. of Fla., 547 So.2d 870, 871 (Ala. 1989)." '
" Prince v. Poole, 935 So.2d 431, 442 (Ala. 2006) (quoting Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala. 2004) )."

Brown v. W.P. Media, Inc., 17 So.3d 1167, 1169 (Ala. 2009). Additionally, " '[t]his Court reviews de novo a trial court's [application] of a statute, because only a question of law is presented.' " State Farm Mut. Auto. Ins. Co. v. Bennett, 974 So.2d 959, 961 (Ala. 2007) (quoting Scott Bridge Co. v. Wright, 883 So.2d 1221, 1223 (Ala. 2003) ).

Discussion

The issue presented is whether the bankruptcy discharge of a UIM defendant prevents an injured plaintiff from being able to recover UIM benefits under the plaintiff's own insurance policy. Hershel contends that the trial court erred in answering the foregoing question in the affirmative and in entering a summary judgment in favor of Progressive. More specifically, according to Hershel, the reasoning advanced by Progressive and accepted by the trial court is both contrary to the effect of a bankruptcy discharge, as indicated by the Bankruptcy Code, and unsupported by Alabama law. In support of his position, Hershel cites authority, including In re Jet Florida Systems, Inc., 883 F.2d 970, 973 (11th Cir. 1989), for the proposition that a bankruptcy discharge protects only the filing debtor and "will not act to enjoin a creditor from taking action against another who also might be liable to the creditor," including, in particular, an insurer that may be secondarily liable.

Progressive, on the other hand, argues that the trial court's ruling was correct in that it represents a "logical extension" of this Court's interpretation of the phrase "legally entitled to recover" under § 32-7-23(a) as discussed in Kendall and Ex parte Carlton, supra. Progressive maintains that this case involves a similar impediment to Hershel's recovery of UIM benefits because, it argues, the automatic stay and ultimate discharge of a tortfeasor's personal liability for damages via bankruptcy proceedings effectively "forecloses the ... legal obligation to pay debts." (Progressive's brief, at p. 3.) Progressive further contends that Jet and other cases on which Hershel relies stand only for the well settled proposition that a plaintiff may, despite the tortfeasor's bankruptcy filing, proceed against the tortfeasor's own insurer but do not hold that the plaintiff may go beyond that permitted recovery and seek UIM benefits from the plaintiff's own insurer.

" 'This Court has held that "legally entitled to recover" means that "the insured must be able to establish fault on the part of the uninsured motorist, which gives rise to damages and must be able to prove the extent of those damages.' "
" Ex parte Carlton, 867 So.2d at 334 (emphasis omitted) (quoting LeFevre v. Westberry, 590 So.2d 154, 157 (Ala. 1991), quoting in turn Quick v. State Farm Mut. Auto. Ins. Co., 429 So.2d 1033, 1035 (Ala. 1983) )."

Frazier v. St. Paul Ins. Co., 880 So.2d 406, 410 (Ala. 2003) (emphasis added). See also Walker v. GuideOne Specialty Mut. Ins. Co., 834 So.2d 769, 772 (Ala. 2002) ("A motorist 'legally entitled to recover damages' under § 32-7-23 is one who presents facts sufficient to prove that the motorist was involved in an accident under circumstances that would entitle the motorist to uninsured-motorist coverage."). Applying the foregoing rationale, this Court in Kendall reiterated "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.' " 23 So.3d at 1125 (quoting State Farm Mut. Auto. Ins. Co. v. Causey, 509 F.Supp.2d 1026, 1030 (M.D. Ala. 2007) (emphasis added)).

In Ex parte Carlton, we agreed that the plaintiff was unable to carry the burden of establishing legal liability of a co-employee where the co-employee was, by statute, "immune" from liability. Similarly, in Kendall, we likewise found that the injured plaintiff had already recovered damages amounting to the maximum permitted by statute and was, therefore, not legally entitled to recover additional damages. Therefore, the plaintiffs' ability to establish the legal merits of their claims was, in some way, statutorily foreclosed. See Carlton, 867 So.2d at 337 (" '[W]hether an insured is "legally entitled to recover" depends entirely on the merits of the insured's claim against a tortfeasor under the laws of the state.' ") (quoting Hogan v. State Farm Mut. Auto. Ins. Co., 730 So.2d 1157, 1159-60 (Ala. 1998) (Lyons, J., dissenting)); Kendall, 23 So.3d at 1125 (" ' 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.' " (quoting Causey, 509 F.Supp.2d at 1030 )). See also State Farm Mut. Auto. Ins. Co. v. Griffin, 51 Ala.App. 426, 431, 286 So.2d 302, 306 (1973) ("In a direct action by the insured against the insurer, the insured has the burden of proving in this regard that the other motorist was uninsured, legally liable for damage to the insured, and the amount of this liability."). Thus, according to our caselaw, the phrase "legally entitled to recover" refers to the insured's ability to prove the merits of the underlying tort claim against the UIM tortfeasor.

The present case, however, is different from Kendall and from Carlton. Specifically, McCartney's bankruptcy filing limits, not a determination on the merits of McCartney's liability, but, instead, Hershel's ability to collect damages from McCartney once he successfully demonstrates the merits of his claims against her.

"A primary goal of the Bankruptcy Code, to allow the 'honest but unfortunate' debtor to obtain a 'fresh start' through relief from his debts, is accomplished by the discharge. In re Krohn, 886 F.2d 123, 125 (6th Cir. 1989) (citing Local Loan Co. v. Hunt, 292 U.S. 234, 54 S.Ct. 695, 699, 78 L. Ed. 1230 (1934) ); see also Meyers v. Internal Revenue Serv. (In re Meyers), 196 F.3d 622, 624 (6th Cir. 1999) ; In re Castle, 289 B.R. 882, 886 (Bankr. E.D. Tenn. 2003). In a Chapter 7 case, a debtor's assets are liquidated for the benefit of his or her creditors, and in return, the debtor's debts, or a portion thereof, are discharged. Krohn, 886 F.2d at 125. Although entry of a Chapter 7 debtor's discharge does not extinguish the debts, once the discharge has been entered, the debtor is no longer personally liable for any of the discharged debts. Castle, 289 B.R. at 886 (quoting Houston v. Edgeworth (In re Edgeworth), 993 F.2d 51, 53 (5th Cir. 1993) ); see also In re Gibson, 172 B.R. 47, 49 (Bankr. W.D. Ark. 1994).
"Once the debtor is granted a discharge, the 'discharge injunction' is triggered. Section 524 provides, in material part:
" '(a) A discharge in a case under this title-
" '....
" '(2) operates as an injunction against the commencement or continuation of an action, the employment of process, or an act, to collect, recover or offset any such debt as a personal liability of the debtor ...[.]
" '....
" '(e) Except as [otherwise] provided in ... this section, discharge of a debt of the debtor does not affect the liability of any other entity on, or the property of any other entity for, such debt.'
" 11 U.S.C.A. § 524. 'The purpose of such an injunction is to protect the debtor from suits to collect debts that have been discharged in bankruptcy.' Hendrix v. Page (In re Hendrix), 986 F.2d 195, 199 (7th Cir. 1993). Accordingly, once a Chapter 7 debtor has been granted a discharge, any creditor holding a discharged prepetition claim may not attempt to hold the debtor personally liable for that claim."

In re Patterson, 297 B.R. 110, 112-13 (Bankr. E.D. Tenn. 2003) (footnote omitted).

In enacting the Bankruptcy Code, "Congress sought to free the debtor of his personal obligations while ensuring that no one else reaps a similar benefit." Green v. Welsh, 956 F.2d 30, 33 (2d Cir. 1992) (citing 3 R. Babitt et al., Collier on Bankruptcy ¶ 524.01 at 524-16 (15th ed. 1991)). The Bankruptcy Code is not violated by the continuation of an action to permit an injured plaintiff to proceed against a discharged debtor in order to ultimately recover against an insurer. See, e.g., In re Bracy, 449 F.Supp. 70, 71 (D. Mont. 1978) ("This court specifically holds that, if an insurance company is as a matter of state law liable to a plaintiff in a personal injury action, subsequent discharge of the assured in bankruptcy does not alter the obligation of the insurance company.").

As indicated, the available authority appears to suggest a clear distinction between a plaintiff's "legal[ ] entitle[ment] to recover" based on a showing of a tortfeasor's nominal liability and the plaintiff's ability to legally collect the demonstrated damages from the tortfeasor/debtor, i.e., as Progressive notes in its brief, "[t]he plaintiff may not collect from the tortfeasor that files for bankruptcy at any time after the bankruptcy filing." (Progressive's brief, at p. 15.) See also, e.g., Gaddy v. SE Prop. Holdings, LLC, [Ms. 1140578, May 27, 2016] 218 So.3d 315 (Ala. 2016) ("After entry of the discharge, if one is granted, a discharge injunction replaces the automatic stay with a permanent injunction against enforcement of all discharged debts." (citing 11 U.S.C. §§ 362, 524(a)(2) ; In re Goodfellow, 298 B.R. 358 (Bankr. N.D. Iowa 2003) (emphasis added))); In re Mann, 58 B.R. 953 (Bankr. W.D. Va. 1986) (finding that the intent of the § 524(a) injunction is to prohibit the collection of a debt determined to be a personal liability of the debtor and that the goals of bankruptcy would not be advanced by preventing a plaintiff from establishing the debtor's liability when such liability is a prerequisite to the plaintiff's recovery from her UIM insurer (emphasis added)); Hayden, 477 B.R. at 264 ("The entry of a discharge acts as a permanent injunction against litigation for the purpose of collecting a debt from the debtor or the debtor's property." (citing 11 U.S.C. § 727(b) (emphasis added))). This distinction appears to have been recognized in and, as Hershel correctly notes, the principles cited herein adopted in a majority of forums. See, Jet, supra ; Edgeworth, 993 F.2d at 53-54 (recognizing that the discharge injunction does not prevent a tort litigant from establishing the liability of the debtor in order to trigger the contractual obligation of an insurer to make payment). See also In re Hendrix, 986 F.2d 195, 197 (7th Cir. 1993) (noting the near unanimity of cases as to the principle that the discharge injunction does not extend to bar suits only nominally against the debtor because the only relief sought is against the debtor's insurer); Underhill v. Royal, 769 F.2d 1426, 1431-32 (9th Cir. 1985) (stating that a bankruptcy court has no power to discharge the liabilities of a nondebtor); Green v. Welsh, 956 F.2d 30, 33 (2d Cir. 1992) ("Numerous courts, confronted with a tort claimant who seeks to proceed against a discharged debtor only for the purpose of recovering against an insurer, have relied on §§ 524(a) and 524(e) and the fresh start policy in concluding that the discharge injunction does not bar such a suit." (citations omitted)); In re Walker, 927 F.2d 1138, 1142 (10th Cir. 1991) (noting that § 524(e)"permits a creditor to bring or continue an action directly against the debtor for the purpose of establishing the debtor's liability when ... establishment of that liability is a prerequisite to recovery from another entity"); In re Patterson, 297 B.R. 110, 113 (Bankr. E.D. Tenn. 2003) (" '[T]he discharge of a chapter 7 debtor does not eradicate liability of third parties such as, for example, contractually responsible insurance companies.... [Instead, the] discharge injunction ... is intended for the benefit of the debtor; it is not meant to affect the liability of third parties or to prevent establishing such liability through whatever means required.' " (quoting Simpson v. Rodgers (In re Rodgers), 266 B.R. 834, 836 (Bankr. W.D. Tenn. 2001) )); In re Jason Pharm., Inc., 224 B.R. 315 (Bankr. D. Md. 1998) (permitting creditor, despite discharge of debt, to proceed nominally against the debtor in state court to establish creditor's right to recover from debtor's insurer); In re Mann, 58 B.R. at 959 ("[T]he provisions of § 524 do not prohibit the Movant from maintaining her pending action against the Debtor, who has received a discharge in Bankruptcy, in order to effectuate recovery under uninsured motorist coverage."); In re White Motor Credit Corp., 37 B.R. 631, 644-45 (Bankr. N.D. Ohio 1984) (permitting pending product-liability suits to continue despite confirmation of debtor's Chapter 11 plan on the ground that a future judgment would merely entitle the injured plaintiffs to insurance proceeds); Rowe v. Ford Motor Co., 34 B.R. 680 (M.D. Ala. 1983) (holding that, although a medical-malpractice suit could not be continued for purposes of collecting against the debtor, it could continue for purposes of determining the debtor's liability, because the plaintiff's right to recover under the plaintiff's own UIM coverage depended upon debtor's liability); Elliott v. Hardison, 25 B.R. 305, 307-08 (E.D. Va. 1982) (affirming grant of relief from automatic stay in order to permit state-court action to proceed where it was necessary for plaintiff, to recover under plaintiff's UIM policy, to establish the legal liability of the debtor as a prerequisite to collecting uninsured-motorist proceeds); In re McGraw, 18 B.R. 140, 143 (Bankr. W.D. Wis. 1982) (holding that, where the plaintiffs had agreed not to seek enforcement of judgment against the debtor, the § 524 injunction could be modified and litigation could continue with the debtor as a defendant for the limited purpose of determining liability); In re Honosky, 6 B.R. 667, 670 (Bankr. S.D. W.Va. 1980) (concluding that, although any liability to the plaintiff was dischargeable and nonrecoverable against the debtor personally, the § 524 injunction did not prohibit the plaintiff from proceeding with litigation to the extent of the debtor's insurance coverage); Wilkinson v. Vigilant Ins. Co., 236 Ga. 456, 456, 224 S.E.2d 167, 168 (1976) (holding that uninsured motorist's discharge in bankruptcy did not preclude the plaintiff-insured from recovering under the UIM provision of her policy); and Bauer, supra. But see Wilcox v. Anchor Wate Co., 164 P.3d 353, 359 (Utah 2007) (declining to apply Edgeworth's rationale based on a "disagree[ment] with its premise" and "align[ing] ... with those courts holding that the proceeds of insurance policies are part of the property of the debtor's estate" (citing In re Vitek, Inc., 51 F.3d 530, 534 n.17 (5th Cir. 1995) )).

Unlike the statutory limitations in Kendall and Carlton, supra, there is nothing preventing Hershel from establishing that he is legally entitled to recover from McCartney on the merits of his claims; instead, Hershel is merely barred, by operation of McCartney's bankruptcy discharge, from actually collecting demonstrated damages from her. See In re Hayden, 477 B.R. 260, 265-66 (Bankr. N.D. Ga. 2012) ("The Debtor's discharge does not eliminate the debtor's legal obligation for the debt. It simply enjoins collection activity if that collection activity is targeted at the Debtor, the Debtor's property, or property of the Debtor's bankruptcy estate." (citations omitted; emphasis added)); Bauer v. Consolidated Underwriters, 518 S.W.2d 879, 880 (Tex. Civ. App. 1975) ("The insured's insolvency pertains only to the future collectibility of the judgment. The fact that he did not have funds available to him with which to pay a judgment entered against him would not relieve him of legal liability under the law."). Thus, Progressive is incorrect in its assertion that McCartney's bankruptcy discharge renders Hershel unable to satisfy the prerequisite of § 32-7-23 by proving the merits of his claim. (Progressive's brief, at p. 4.)

The entry of a summary judgment in the present circumstances thus appears to conflict with the legislative policies underlying both Alabama's UIM statute and the Bankruptcy Code. See 11 U.S.C. § 524(e) ("[D]ischarge of a debt of the debtor does not affect the liability of any other entity on, or the property of any other entity for, such debt."); In re Bracy, 449 F.Supp. at 71 ("It seems clear that it is the policy of the law to discharge the bankrupt but not to release from liability those who are liable with him." (citing 1A Collier on Bankruptcy ¶ 16.15 (14th ed. 1976))). We therefore decline Progressive's invitation to extend the rationale of Carlton and Kendall, supra, to the present circumstances. Essentially, the flaw in Progressive's logic is this: By virtue of her bankruptcy filing, McCartney has not been relieved of legal liability for the harm she caused Hershel; instead, Hershel may prove the merits of his claim but is merely prevented by law from seeking to collect damages from McCartney for that harm even after his legal entitlement to recover those damages has been established. See Hayden, 477 B.R. at 264 ("[A] creditor may establish the debtor's nominal liability for a claim solely for the purpose of collecting the debt from a third party, such as an insurer or guarantor."). Any injunction against proceeding directly against the debtor, therefore, in no way extends to Hershel's own insurer. See id. (explaining that, although the bankruptcy discharge enjoins further action against the debtor, " section 524(e) 'specifies that the debt still exists and can be collected from any other entity that might be liable' " (quoting Edgeworth, 993 F.2d at 53 )).

Conclusion

The trial court erred in entering a summary judgment in favor of Progressive on Hershel's UIM claim. We, therefore, reverse that judgment and remand this matter for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

Stuart, C.J., and Bolin, Parker, Murdock, Main, and Bryan, JJ., concur.

Shaw, J., concurs specially.

Sellers, J., dissents.

SHAW, Justice (concurring specially).

I concur in the main opinion, which I authored. I write specially to respectfully respond to Justice Sellers's dissenting opinion.

It is true that Ala. Code 1975, § 32-7-23(a), states that uninsured-motorist coverage extends to insureds "who are legally entitled to recover damages." Justice Sellers argues that this phrase refers to an insured's being able to "collect" damages from the tortfeasor and that here, under bankruptcy law, there can be no collection of damages from the bankrupt tortfeasor.

The caselaw identified in the main opinion, however, has read the phrase "legally entitled to recover damages" to mean, not the ability merely to collect damages from the tortfeasor, but the ability to establish fault on the part of the tortfeasor and to determine the resulting damages. This reading has a long history:

"One must, then, make a determination as to what the words, 'legally entitled to recover damages,' mean. They mean that the insured must be able to establish fault on the part of the uninsured motorist, which gives rise to damages, and must be able to prove the extent of those damages."

State Farm Mut. Auto. Ins. Co. v. Griffin, 51 Ala.App. 426, 431, 286 So.2d 302, 306 (1973). Since Griffin, this reading of the phrase "legally entitled to recover damages" has been consistently repeated by the appellate courts of this State: Quick v. State Farm Mut. Auto. Ins. Co., 429 So.2d 1033, 1035 (Ala. 1983) ; Aetna Cas. & Sur. Co. v. Beggs, 525 So.2d 1350, 1351 (Ala. 1988) ; LeFevre v. Westberry, 590 So.2d 154, 157-58 (Ala. 1991) (citing numerous other jurisdictions with the same understanding of the same phrase); Harshaw v. Nationwide Mut. Ins. Co., 834 So.2d 762, 764 (Ala. 2002) ; Ex parte Carlton, 867 So.2d 332, 334 (Ala. 2003) ; Frazier v. St. Paul Ins. Co., 880 So.2d 406, 410 (Ala. 2003) ; Johnson v. Coregis Ins. Co., 888 So.2d 1231, 1234-35 (Ala. 2004) ; Ex parte State Farm Mut. Auto. Ins. Co., 893 So.2d 1111, 1115 (Ala. 2004) ;

Pontius v. State Farm Mut. Auto. Ins. Co., 915 So.2d 557, 563 (Ala. 2005) ; State Farm Mut. Auto. Ins. Co. v. Smith, 956 So.2d 1164, 1168 (Ala. Civ. App. 2006) ; State Farm Mut. Auto. Ins. Co. v. Bennett, 974 So.2d 959, 962 (Ala. 2007) ; Ex parte Safeway Ins. Co. of Alabama, Inc., 990 So.2d 344, 351 (Ala. 2008) ; Jenkins v. State Farm Mut. Auto. Ins. Co., 30 So.3d 414, 417 (Ala. Civ. App. 2008) ; McKinney v. Nationwide Mut. Fire Ins. Co., 33 So.3d 1203, 1210 (Ala. 2009) ; Bailey v. Progressive Specialty Ins. Co., 72 So.3d 587, 593 (Ala. 2011) ; Ex parte Safeway Ins. Co. of Alabama, 148 So.3d 39, 42 (Ala. 2013) ; and Travelers Home & Marine Ins. Co. v. Gray, 171 So.3d 3, 7-8 (Ala. 2014).

By one definition, the word "recover" means "[t]o obtain (a judgment) in one's favor," Black's Law Dictionary 1466 (10th ed. 2014). One obtains a judgment in one's favor by proving one's case in court; proving one's case-in the very general sense-is done by establishing the opposing party's fault and the resulting damages. The phrase "legally entitled to recover damages," as interpreted by the above caselaw, is not a reference to the postjudgment acquisition of money owed under an existing award of damages, but is instead the acquisition of the award in the first place.

In the instant case, as the various bankruptcy authorities cited in the main opinion note, Hershel Eugene Easterling is still "legally entitled" "to obtain [a judgment] in [his] favor" for his alleged injury despite the tortfeasor's bankruptcy. He is still entitled under bankruptcy law to prove the tortfeasor's fault and his own damages; he is just not able to collect those damages from the tortfeasor.

SELLERS, Justice (dissenting).

I respectfully dissent. Section 32-7-23(a), Ala. Code 1975, mandates uninsured-motorist ("UM") insurance coverage for the protection of persons who are "legally entitled to recover damages" from owners or operators of uninsured motor vehicles; underinsured-motorist ("UIM") coverage, which is at issue here, is a subset of UM coverage. An insured is "legally entitled to recover" under his or her policy providing UM coverage only those damages the insured could legally recover in a direct action against the tortfeasor who harmed him or her. To be legally entitled to recover damages, a plaintiff must be able to "collect" damages from a defendant, not merely establish the defendant's liability for the harm. I view Ex parte Carlton, 867 So.2d 332 (Ala. 2003), and its progeny as controlling in this respect. In Ex parte Carlton, this Court explained:

"Pursuant to the Alabama Workers' Compensation Act, [an employee] may not recover from his co-employee for the co-employee's negligent or wanton conduct. The workers' compensation benefits [the employee] received are his only remedy against his employer. § 25-5-11, Ala. Code 1975. Therefore, [the employee] 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."

867 So.2d at 338. This Court emphasized in Ex parte Carlton that the language of § 32-7-23(a) was plain and unambiguous and that no judicial interpretation of the words of that statute was necessary. 867 So.2d at 338. Since Ex parte Carlton, this Court has consistently held that the insured may seek to recover UIM benefits from his insurer only if the insured is legally entitled to recover damages from the tortfeasor. See, e.g., Kendall v. United Servs. Auto. Ass'n, 23 So.3d 1119, 1120 (Ala. 2009) (holding that, because the insured had already recovered the statutory maximum of $100,000, she was no longer legally entitled to recover damages from the County or the tortfeasor and that, therefore, the insured could not recover UIM benefits from her insurer); and Continental Nat'l Indem. Co. v. Fields, 926 So.2d 1033 (Ala. 2005) (holding that because an unfiled tort claim does not survive the death of the injured person entitled to assert the claim, see § 6-5-462, Ala. Code 1975, the estate was not legally entitled to recover UM benefits). See also Singleton v. Burchfield, 362 F.Supp.2d 1291 (M.D. Ala. 2005) (holding that insured could not recover UM benefits under his policy where he could not recover against the tortfeasor who was entitled to absolute immunity under the Federal Tort Claims Act and had been dismissed from case).

In the specifics of this case, under the plain language of § 32-7-23(a), Hershel Eugene Easterling can seek UIM benefits against Progressive Specialty Insurance Company only if he was "legally entitled to recover damages" from Ashley McCartney. Because Hershel's ability to recover on any judgment in this case is foreclosed by McCartney's bankruptcy proceedings, he cannot, under this Court's controlling authority, seek UIM benefits against Progressive. Accordingly, I would affirm the summary judgment in favor of Progressive.

      The record suggests that there is a dispute as to whether Charlotte died of causes related to the subject motor-vehicle accident.

      We express no opinion on the viability of the claims Hershel asserts on behalf of Charlotte's estate. See generally Continental Nat'l Indem. Co. v. Fields, 926 So.2d 1033 (Ala. 2005).

      McCartney's "Suggestion of Bankruptcy" fails to indicate whether she sought relief under Chapter 7 or Chapter 13 of the Bankruptcy Code. See Martin v. Cash Express, Inc., 60 So.3d 236, 246 (Ala. 2010) (" ' "Chapter 7 ... allows for the complete discharge of debts and ... [in] bankruptcy under Chapter 13 ... debts [are] discounted and repaid." ' " (quoting De Leon v. Comcar Indus., Inc., 321 F.3d 1289, 1291 (11th Cir. 2003) )). Elsewhere in the record, however, it is suggested, and not disputed, that McCartney's bankruptcy petition was filed under Chapter 7.

      See Gaddy v. SE Prop. Holdings, LLC, [No. 1140578, May 27, 2016] 218 So.3d 315 (Ala. 2016) ("The automatic stay prohibits the commencement or continuation of a judicial action or proceeding against the debtor or to recover a claim against the debtor that arose before the commencement of the bankruptcy case." (emphasis added)).

      This Code section provides, in full:
      "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 or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death set forth in subsection (c) of Section 32-7-6, under provisions approved by the Commissioner of Insurance 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; provided, that the named insured shall have the right to reject such coverage; and provided further, that unless the named insured requests such coverage in writing, such coverage need not be provided in or supplemental to a renewal policy where the named insured had rejected the coverage in connection with the policy previously issued to him or her by the same insurer."

      A transcript of the summary-judgment hearing was not included in the record on appeal. The record does, however, contain the transcript of the hearing on Hershel's subsequent postjudgment motion.

      As Hershel's brief suggests and the record on appeal confirms, it does not appear that the trial court entered an order disposing of Hershel's postjudgment motion. In any event, that motion would have been, 90 days after its filing, denied by operation of law and the premature notice of appeal held in abeyance until the disposition of the motion. See Rule 59.1, Ala. R. Civ. P.; Rule 4(a)(5), Ala. R. App. P.

      The Court is aware that, pursuant to Alabama caselaw, "in a direct action against an insurer for [uninsured-motorist] benefits ' "the insurer [has] available, in addition to policy defenses, the substantive defenses that would have been available to the uninsured motorist." ' " State Farm Mut. Auto. Ins. Co. v. Bennett, 974 So.2d 959, 962 (Ala. 2007) (quoting State Farm's brief, quoting in turn cases). However, nothing in Progressive's filing in this Court suggests that, like the municipal-damages cap and the exclusivity of the workers' compensation remedy, a bankruptcy discharge is a substantive, as opposed to a procedural, defense. See, generally, id.; Rule 8(c), Ala. R. Civ. P.

      When there is some form of legal prohibition or immunity barring an action against a tortfeasor, then the insured cannot "obtain a judgment" in the first place. See generally Ex parte Carlton, 867 So.2d at 338 (holding that because the insured's claim was barred by law, he was not "legally entitled to recover damages"), and Singleton v. Burchfield, 362 F.Supp.2d 1291, 1297 (M.D. Ala. 2005) (holding that because the defendant tortfeasor had "absolute immunity" from suit, the plaintiffs were not "legally entitled to recover damages" for purposes of uninsured-motorist-insurance coverage).


author: SELLERS, Justice. SHAW, Justice (dissenting).

text:
    EX PARTE Terrence VENTER and the City of Selma
    (In re Mary Vick, as Administrator of the Estate of Aubrey Vick, Deceased v. Terrence Venter and the City of Selma)
    1160539
    Supreme Court of Alabama.
    September 22, 2017
    Rick A. Howard and April W. McKay of Holtsford, Gilliland, Higgins, Hitson & Howard, P.C., Montgomery, for petitioners.
    Robert H. Turner, Sr., of Turner & Turner, Marion, for respondent.
   SELLERS, Justice.

Terrence Venter and the City of Selma ("the City") petition this Court for a writ of mandamus directing the Dallas Circuit Court to vacate its February 20, 2017, order denying their motion for a summary judgment based on Venter's State-agent immunity and to enter an order based on that defense. We deny the petition.

Facts and Procedural History

On September 19, 2008, Aubrey Vick was killed when the vehicle he was driving collided with a fire truck being driven by Venter; the collision occurred at the intersection of Old Orrville Road and Vaughan Memorial Drive in Selma. Mary Vick, as administrator of Aubrey's estate ("the estate"), filed a wrongful-death complaint against Venter and the City. In count one of the complaint, the estate alleged that Venter, "while acting in the line and scope of his employment with the City of Selma's fire department, and operating a vehicle owned by the City of Selma, negligently drove the vehicle into the vehicle owned by plaintiff's decedent." The estate claimed that the City was vicariously liable for Venter's alleged negligence. Count two of the complaint alleged that the City had negligently installed, maintained, and/or designed the traffic light at the intersection where the accident occurred.

On October 10 2010, Venter and the City filed a motion for a summary judgment pursuant to Rule 56, Ala. R. Civ. P., raising as to count one the defense of discretionary-function immunity, now referred to as State-agent immunity, see Ex parte Cranman, 792 So.2d 392 (Ala. 2000), and as to count two the defense of substantive immunity. In support of the motion for a summary judgment as to count one, Venter and the City relied on Venter's affidavit, which states, in relevant part:

"On September 19, 2008, right around lunch time, I was traveling down Old Orrville Road with Captain Coley Byrd and fellow fireman Kenny Brown. We were traveling in fire truck # 104 and were returning to Selma Fire Station # 4 after riding around assigned territory within the City of Selma. We had been patrolling areas around the City of Selma, learning streets and areas, inspecting streets and layout of the City of Selma and to simply cover our territory in case someone is in need of assistance. These patrols are an essential part of our duties as firemen. In addition, the patrols often serve as a sort of training exercise so we can learn about our fire territory and our duties as City of Selma firemen. Similar to a police officer, if we are not directly responding to a call or at the scene of a fire, we are often simply patrolling, looking for people in need of help or waiting for an emergency call. During these patrols, if someone needs help from us, we will pull over and assist in any possible way.
"On the day of the accident, as I approached the intersection of Old Orrville Road and Vaughan Memorial Drive, the traffic light was green, giving me the right of way. The light was green as I approached the intersection and remained green as I prepared to pass through the intersection. The fire truck was traveling approximately 30 miles per hour as I approached the intersection. Just prior to entering the intersection, I noticed a silver Nissan truck approaching the intersection at a speed indicating the truck was going to enter the intersection. It was later determined that the truck was driven by Aubrey Vick. I noticed the truck immediately before entering the intersection and took my foot off the accelerator to prepare to brake. The truck then began slowing down and looked like it was going to stop at the stop light. But the other truck did not stop and entered the intersection, proceeding through the red light. The vehicles arrived at the intersection simultaneously, with my vehicle proceeding through the intersection on a green light. For no apparent reason, the other truck, Vick, was looking to his right. Vick drove his truck directly into the path of the City of Selma fire truck."

Venter and the City also attached to the summary-judgment motion the affidavits of Captain Richard Coley Byrd and Kenny Brown, both of whom were passengers in the fire truck at the time of the accident and both of whom provided similar accounts of the events leading up to the accident. The estate responded by filing a motion requesting a continuance of the hearing on the summary-judgment motion until after the City had responded to the estate's discovery request concerning the traffic light at the intersection. On February 20, 2017, following a hearing, the trial court entered an order, denying the motion for a summary judgment. Venter and the City filed this petition for a writ of mandamus asking this Court to direct the trial court to enter a summary judgment for Venter and the City on the basis of both State-agent immunity and substantive immunity. This Court ordered answers and briefs as to only the issue whether Venter is entitled to State-agent immunity.

Standard of Review

"A writ of mandamus is an extraordinary remedy available only when the petitioner can demonstrate: ' "(1) a clear legal right 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) the properly invoked jurisdiction of the court." ' Ex parte Nall, 879 So.2d 541, 543 (Ala. 2003) (quoting Ex parte BOC Grp., Inc., 823 So.2d 1270, 1272 (Ala. 2001) )."

Ex parte Alabama Dep't of Corr., [Ms. 1160413, August 25, 2017] --- So.3d ----, ---- (Ala. 2017).

" 'While the general rule is that the denial of a motion for summary judgment is not reviewable, the exception is that the denial of a motion grounded on a claim of immunity is reviewable by petition for writ of mandamus. Ex parte Purvis, 689 So.2d 794 (Ala. 1996)....
" 'Summary judgment is appropriate only when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Rule 56(c)(3), Ala. R. Civ. P., Young v. La Quinta Inns, Inc., 682 So.2d 402 (Ala. 1996). A court considering a motion for summary judgment will view the record in the light most favorable to the nonmoving party, Hurst v. Alabama Power Co., 675 So.2d 397 (Ala. 1996), Fuqua v. Ingersoll-Rand Co., 591 So.2d 486 (Ala. 1991) ; will accord the nonmoving party all reasonable favorable inferences from the evidence, Fuqua, supra, Aldridge v. Valley Steel Constr., Inc., 603 So.2d 981 (Ala. 1992) ; and will resolve all reasonable doubts against the moving party, Hurst, supra, Ex parte Brislin, 719 So.2d 185 (Ala. 1998).
" 'An appellate court reviewing a ruling on a motion for summary judgment will, de novo, apply these same standards applicable in the trial court. Fuqua, supra, Brislin, supra. Likewise, the appellate court will consider only that factual material available of record to the trial court for its consideration in deciding the motion. Dynasty Corp. v. Alpha Resins Corp., 577 So.2d 1278 (Ala. 1991), Boland v. Fort Rucker Nat'l Bank, 599 So.2d 595 (Ala. 1992), Rowe v. Isbell, 599 So.2d 35 (Ala. 1992).' "

Ex parte Turner, 840 So.2d 132, 135 (Ala. 2002) (quoting Ex parte Rizk, 791 So.2d 911, 912-13 (Ala. 2000) ).

Analysis

In Ex parte Cranman, supra, this Court restated the rule for determining when a State agent sued in his or her individual capacity is entitled to State-agent immunity:

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

792 So.2d at 405.

It is undisputed that, at the time of the accident, Venter was employed by the City as a firefighter. See City of Birmingham v. Brown, 969 So.2d 910, 916 (Ala. 2007) ("Immunity applies to employees of municipalities in the same manner that immunity applies to employees of the State."); see also Taylor v. Adams, 221 F.3d 1254, 1261 (11th Cir. 2000) (holding that Alabama's State-agent-immunity doctrine is applicable to municipal firemedic). In order to claim State-agent immunity, Venter and the City bore the initial burden of demonstrating that the wrongful-death claim based on Venter's alleged negligence arose from a function that would entitle Venter to immunity. Giambrone v. Douglas, 874 So.2d 1046, 1052 (Ala. 2003). Venter and the City assert in the petition that Venter is entitled to State-agent immunity under category (1) of the Cranman restatement because, they say, at the time of the accident, Venter was formulating plans and policies on behalf of the fire department by "patrolling" fire-rescue routes.

It is undisputed that, at the time of the accident, Venter was not responding to an emergency call. Rather, according to Venter's affidavit, he was "patrolling," a term he describes as "exploring and identifying fire rescue routes" and/or "looking for people in need of help or waiting for an emergency call." Venter and the City have not provided this Court with any caselaw from this State or any other jurisdiction in which immunity has been extended to a fireman who was engaged in routine patrolling when an alleged tort occurred. And, assuming, without deciding, that the act of "patrolling" could somehow be equated with formulating policy or procedure, Venter, by his own admission, was not engaged in the act of patrolling when the accident occurred. Rather, Venter stated in his affidavit that, at the time of the accident, he was "returning" to the fire department "after riding around assigned territory within the City of Selma." Furthermore, in the narrative summary of undisputed facts in the summary-judgment motion, Venter and the City add that, in the process of returning to the fire department, Venter had stopped at a grocery store. Venter's action in returning to the fire department after an afternoon of patrolling, in conjunction with stopping at the grocery store, cannot be equated with performing a function that would entitle him to State-agent immunity; rather, such action can be characterized only as a routine action requiring the exercise of due care. See, e.g., Ex parte Coleman, 145 So.3d 751, 758 (Ala. 2013) ("It is undisputed that Coleman is a peace officer entitled to the immunity established in § 6-5-338(a)[, Ala. Code 1975, ] and that at the time of the accident he was performing a function-responding to an emergency call-that entitles Coleman to immunity." (emphasis added)); DeStafney v. University of Alabama, 413 So.2d 391 (Ala. 1981) (rejecting immunity claim of individual defendant, an aide at the University's day-care center who allegedly allowed the plaintiff's child to fall off playground equipment, on basis that defendant was engaged in a function that clearly required the exercise of due care rather than difficult decision-making); cf. Gill v. Sewell, 356 So.2d 1196 (Ala. 1978) (holding the director of a work-release center sued for releasing a convicted felon who then shot the plaintiff was performing discretionary duties). Accordingly, because Venter has failed to demonstrate that, at the time of the accident, he was performing a function that would entitle him to State-agent immunity, he and the City are not entitled to the relief requested.

Conclusion

Based on the foregoing, we conclude that the trial court properly denied Venter and the City's motion for a summary judgment based on the defense of State-agent immunity.

PETITION DENIED.

Stuart, C.J., and Parker and Main, JJ., concur.

Murdock, J., concurs specially.

Bolin, Shaw, Wise, and Bryan, JJ., dissent.

MURDOCK, Justice (concurring specially).

I fully concur in the main opinion. Ex parte Cranman, 792 So.2d 392 (Ala. 2000), provides the foundation for much of the analysis in that opinion and in Ex parte Butts, 775 So.2d 173 (Ala. 2000), in which a majority of this Court adopted the Cranman restatement, by stating:

"The Constitution and cases construing it require that we not ignore § 13[, Ala. Const. 1901, guaranteeing every person a remedy for wrong,] in order to protect State agents from suit. However, the vulnerability of State agents to suit, if not constrained, could lead to excessive judicial interference in the affairs of coequal branches of government, contrary to § 43[, Ala. Const. 1901]....
"....
"... In applying the doctrine of separation of powers, we must recognize § 14[, Ala. Const. 1901,] as an expression of a strong public policy against the intrusion of the judiciary into the management of the State while, at the same time, acknowledging that it speaks only to a prohibition of lawsuits against the State and does not mention lawsuits against individuals."

792 So.2d at 400-01 (emphasis added).

In this context, Cranman explained that, in applying State-agent immunity, it was important to strike a balance that would recognize the right of individuals to a remedy to the extent practicable while guarding against "the effect upon the rendition of governmental services if agents are inclined to indecision rather than risk personal liability." 792 So.2d at 404.

Under the circumstances presented in this case, I agree that the duty owed by Terrence Venter as the driver of a vehicle on a public roadway was no different than the duty of the driver in the illustration chosen in Cranman itself of a circumstance to which the doctrine of State-agent immunity would not apply. See Cranman, 792 So.2d at 404 (explaining the difference in legal consequences between an exercise of judgment in a personnel-related matter and "a decision by the driver of a pickup truck on how to drive through or around potholes while transporting prisoners").

SHAW, Justice (dissenting).

I respectfully dissent. This Court in Ex parte Cranman, 792 So.2d 392, 405 (Ala. 2000), held that "[a] State agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent's ... formulating plans, policies, or designs ...." I believe that the firefighter's activities in the instant case of driving around the City of Selma, "learning streets and areas, [and] inspecting streets and layout" of the area are part of "formulating plans" for purposes of Cranman State-agent immunity. Specifically, it appears that in the instant case the firefighter was both learning and determining routes and locations in the City as part of planning responses to future fires or other emergencies.

Wise, J., concurs.

      The materials before us do not indicate whether the trial court ruled on the estate's motion for a continuance.

      Although Cranman was a plurality decision, the restatement of law as it pertains to State-agent immunity set forth in Cranman was subsequently adopted by this Court in Ex parte Butts, 775 So.2d 173 (Ala. 2000).

      Section 6-5-338(a) provides immunity to peace officers under certain circumstances. In Hollis v. City of Brighton, 950 So.2d 300, 309 (Ala. 2006), it was engrafted onto category (4) for which a State agent is immune under Cranman.