author: MAXWELL, J., for the Court:

text:
    Trevarus Cijuan DANIELS, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-00692-COA.
    Court of Appeals of Mississippi.
    April 27, 2010.

      H. Lee Bailey, Jr., W. Daniel Hinchcliff, Leslie S. Lee, attorneys for appellant.
    Office of the Attorney General, by Ladonna C. Holland, attorney for appellee.
    Before MYERS, P.J., BARNES and MAXWELL, JJ.
   MAXWELL, J., for the Court:

¶ 1. A jury in the Circuit Court of Montgomery County found Trevarus Cijuan Daniels guilty of armed robbery. The circuit judge sentenced Daniels to twenty-five years in the custody of the Mississippi Department of Corrections, with five years suspended and five years of supervised probation. Daniels now appeals his conviction claiming the State used its peremptory challenges in a discriminatory manner to remove females and African Americans from the venire. Finding no Batson objections were made at trial, Daniels’s claims are waived. Furthermore, we are unable to discern from the record any discriminatory intent on the part of the State in exercising its peremptory challenges.

FACTS

¶ 2. On the night of July 28, 2008, four people attempted to rob the Campbell Hill Grocery in Winona, Mississippi. The robbers were not identified because they wore masks. The following day, Daniels told his mother that he had done something “stupid” and admitted to her that he had attempted to rob the store. Daniels was later charged with armed robbery.

¶ 3. At trial, Daniels testified he had falsely implicated himself in the robbery, and his statement to police had been fabricated. Specifically, he alleged the chief of police had told him what to say. After deliberating for forty minutes, the jury found Daniels guilty of armed robbery.

DISCUSSION

¶ 4. In Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the United States Supreme Court prohibited racial discrimination through the use of peremptory challenges. “The Batson rationale has also been extended to include gender discrimination.” Ross v. State, 16 So.3d 47, 56 (¶ 18) (Miss.Ct.App.2009) (quoting Harper v. State, 887 So.2d 817, 827 (¶ 44) (Miss.Ct.App.2004)).

¶ 5. On appeal, Daniels takes issue with the State’s uncontested use of eight peremptory challenges to exclude seven African Americans, five of whom were female, and one white female.

¶ 6. The jury venire included eight black males, fifteen white males, fourteen black females, and nineteen white females. After the parties finished voir dire, they exercised their peremptory challenges. Daniels failed to raise any Batson challenges. The final jury was composed of two black males, three white males, two black females, and five white females.

I. Daniels’s Failure to Object

¶ 7. During voir dire, Daniels made no objections to the manner in which the State used its peremptory challenges. Thus, he attempts to invoke Batson challenges for the first time on appeal.

¶ 8. To raise a Batson challenge, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race or gender. Ross, 16 So.3d at 56 (¶ 18) (citing Brawner v. State, 872 So.2d 1, 9-10 (¶¶ 25-26) (Miss.2004)). Once this showing is made, the burden shifts to the State to articulate race or gender neutral reasons for striking the juror. Id. The defendant may rebut the State’s explanations, and the court must then determine if the defendant carried his burden of proving purposeful discrimination. Id.

¶ 9. Uniform Rule of Circuit and County Court 4.05(B) requires constitutional objections to the use of peremptory challenges to be made at the time the panel is tendered. Furthermore, our supreme court has held: “[A] party who fails to object to the jury’s composition before it is empaneled waives any right to complain thereafter.” Ross, 16 So.3d at 56 (¶ 19) (quoting Thorson v. State, 895 So.2d 85, 118 (¶ 81) (Miss.2004)). Nevertheless, Daniels argues the circuit judge was required to inquire into the State’s challenges and invoke a Batson hearing sua sponte. However, we find his argument directly conflicts with our supreme court’s clear instruction that: “ ‘a trial judge does not have the authority to invoke a Batson hearing on his own initiative,’ without the opposing party first making a prima facie showing of discriminatory purpose.” Brawner, 872 So.2d at 11 (¶ 28) (quoting Stewart v. State, 662 So.2d 552, 559 (Miss.1995)). Because Daniels failed to raise any Batson challenges before the jury was empaneled, we find he waived his right to complain about the jury’s composition.

II. Plain Error

¶ 10. Daniels next claims no objection is needed where discrimination is apparent from the record. He requests that we review the State’s exercise of peremptory challenges for plain error. In conducting a plain-error analysis, we determine “if the trial court has deviated from a legal rule, whether the error is plain, clear or obvious, and whether the error has prejudiced the outcome of the trial.” Smith v. State, 984 So.2d 295, 307 (¶43) (Miss.Ct.App.2007) (quoting Cox v. State, 793 So.2d 591, 597 (¶22) (Miss.2001)).

¶ 11. Daniels relies on McGee v. State, 953 So.2d 211 (Miss.2007), in support of his plain-error argument. But we find the facts in McGee are clearly distinguishable from the present case. In McGee, the defense objected to the State’s use of peremptory challenges to exclude African Americans from the jury. Id. at 213 (¶ 5). The State explained that it struck a black male juror because his brother had a drug conviction. Id. at 214 (¶ 5). The circuit judge then asked the State why it struck the African American male but did not strike a white female juror whose mother had a drug conviction. Id. The prosecutor responded:

The other reason — and it had nothing to do with Mr. Washington’s race — it’s that he’s a male. And I don’t know if gender is discrimination or something, but Ms. Deandrea is a female, so between the two, a female or a male, I would rather have a female, you know, taking criminal convictions, if that family member have [sic] criminal convictions.

Id. There was no objection based on gender discrimination, and the juror was excluded. Id. at (¶ 6). Because of the prosecutor’s obvious gender discrimination during jury selection, the supreme court reversed the defendant’s conviction and remanded the case for a new trial. Id. at 215-16 (¶ 11).

¶ 12. Here, we see no deviation from Batson’s clear directives. Also, unlike McGee, we find no obvious or explicit proffered race or gender-based discrimination by the State. Id. at 214 (¶ 6). Rather, the State’s peremptory strikes were uncontested. The venire consisted of eight black males, fifteen white males, fourteen black females, and nineteen white females. The final jury included two African American males, three white males, two African American females, five white females, and the alternate juror was an African American female. Daniels fails to point to any discriminatory intent on the part of the State or show prejudice. Further, we see nothing in the record to establish error or prejudice to Daniels. Thus, Daniels’s waiver notwithstanding, we are unable to find plain error.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF MONTGOMERY COUNTY OF CONVICTION OF ARMED ROBBERY AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIVE YEARS SUSPENDED AND FIVE YEARS OF SUPERVISED PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MONTGOMERY COUNTY.

LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. KING, C.J., CONCURS IN RESULT ONLY.


source: Caselaw Access Project

author: LEE, P.J., for the Court:

license: Public Domain

text:
    CONCERT SYSTEMS USA, INC., Appellant v. John WEAVER, Appellee.
    No. 2009-WC-00835-COA.
    Court of Appeals of Mississippi.
    May 11, 2010.

      Donald Paul Moore, attorney for appellant.
    James Kenneth Wetzel, attorney for ap-pellee.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   LEE, P.J., for the Court:

PROCEDURAL HISTORY

¶ 1. John Weaver was injured in an eighteen-wheeler accident while driving a truck for Concert Systems USA, Inc. (Concert Systems). Weaver filed a claim for workers’ compensation benefits, which was disputed by Concert Systems. Concert Systems alleges that it did not fall within the scope of the Mississippi Workers’ Compensation Act (the Act) because Weaver was an independent contractor, and it did not have the required number of employees to be subject to the Act.

¶ 2. A hearing was held before an administrative law judge (ALJ) to determine the following issues: (1) whether Weaver was an independent contractor or employee, and (2) whether Concert Systems had five or more employees at the time of the accident. The ALJ found that Weaver was an employee of Concert Systems; Concert Systems had at least six regular employees at the time of the accident; and Weaver was injured during the course and scope of his employment. Thus, Weaver was awarded benefits.

¶ 3. Concert Systems appealed to the Mississippi Workers’ Compensation Commission (Commission). The Commission affirmed the ALJ’s order. Concert Systems then appealed to the Circuit Court of Harrison County. The circuit court affirmed the decision of the Commission.

¶ 4. Concert Systems now appeals, asserting the following issues: (1) the Commission erred in finding that Weaver was an employee of Concert Systems, and (2) the Commission erred in finding that Concert Systems had the requisite number of employees to be subject to the Act. Finding no error, we affirm the decision of the circuit court affirming the Commission’s decision.

FACTS

¶ 5. In 2004, Weaver began working for Concert Systems as a truck driver on an as-needed basis. Weaver was sixty-seven years old at the time of the hearing. He has experience as a truck driver and brick layer, and he was the executive director of the Gulf Coast labor union. Concert Systems provides equipment, such as lighting and sound systems, for bands. Weaver’s job was to deliver the equipment to the location where a band was to play. Concert Systems provided Weaver with a rented truck, directions, a per diem, and instructions on where to stay along the route. Weaver did not load or unload the truck. On all of his trips, except the trip in which he was injured, a Concert Systems employee rode in the truck with Weaver. Weaver did not have an expectation of employment from one job to the next. Weaver did not provide any of the equipment that he used on the job. Weaver was paid $100 a day during a trip, regardless of whether he drove that day. Concert Systems paid for Weaver’s meals and hotel room. Concert Systems did not withhold taxes or social security from Weaver’s pay, and he was given a Form 1099 for tax purposes.

¶ 6. Randy Frierson (Frierson) owned Concert Systems. His wife, Candi, worked for the company as the vice president and chief financial officer, along with Dave Drake, the manager; John Beavgez, the office manager; Carol Stone, the bookkeeper; Frierson’s son, Ben; Kelly Gif-ford, who worked with lighting; and Jim Crandall, who worked with sound. Two other employees were also mentioned. As of July 2006, four employees were listed on the payroll register. The payroll register stated: “Employees Paid: 4” and “Active Employees Not Paid: 18.”

¶ 7. In July 2006, Drake asked Weaver to make a delivery to Tampa, Florida, where Concert Systems moved its base of operations following Hurricane Katrina. Drake also worked for Concert Systems on an as-needed basis. Drake had planned on making the trip to Tampa himself, but he was unable to go. Weaver accepted the job and went on the trip by himself. As he was returning to Gulfport, he was involved in a traffic accident. Weaver has been temporarily totally disabled since the accident. Frierson testified that Weaver did not have his permission to make the trip.

¶ 8. While driving for Concert Systems, Weaver also drove for Gulf Coast Trucking. Weaver testified that he drove for Concert Systems five or six times in the two years prior to Hurricane Katrina, which occurred in August 2005. The only trip he took after the hurricane was the trip to Tampa in July 2006.

¶ 9. The ALJ found that Weaver was not a regular, full-time employee, but he was a “casual employee.” The ALJ went on to reason that since Mississippi has no exemption for casual employment, Weaver was covered by the Act. The ALJ’s opinion noted that Weaver lacked any control over the job, and all details of the job were controlled by Concert Systems.

STANDARD OF REVIEW

¶ 10. The standard of review in workers’ compensation cases is well established. The decision of the Commission will be reversed only if it is not supported by substantial evidence, is arbitrary or capricious, or is based on an erroneous application of the law. Weatherspoon v. Croft Metals, Inc., 853 So.2d 776, 778 (¶ 6) (Miss.2003) (citing Smith v. Jackson Constr. Co., 607 So.2d 1119, 1124 (Miss.1992)). We will exercise de novo review on matters of law. KLLM, Inc. v. Fowler, 589 So.2d 670, 675 (Miss.1991).

DISCUSSION

I. EMPLOYEE STATUS

¶ 11. Concert Systems argues that Weaver was working as an independent contractor at the time of the injury; thus, he is not entitled to workers’ compensation benefits.

¶ 12. According to Mississippi Code Annotated section 71 — 3—3(d) (Rev.2000), an employee is “any person ... in the service of an employer under any contract of hire or apprenticeship, written or oral, express or implied, provided that there shall be excluded therefrom all independent contractors ....” An independent contractor is defined as:

any individual, firm or corporation who contracts to do a piece of work according to his own methods without being subject to the control of his employer except as to the results of the work, and who has the right to employ and direct the outcome of the workers independent of the employer and free from any superior authority in the employer to say how the specified work shall be done or what the laborers shall do as the work progresses, one who undertakes to produce a given result without being in any way controlled as to the methods by which he attains the result.

Miss.Code Ann. § 71-3-3(r) (Rev.2000).

¶ 13. The supreme court has held that “the traditional test of the employer-employee relationship is the right of the employer to control the details of the work.” Goolsby Trucking Co., Inc. v. Alexander, 982 So.2d 1013, 1024 (¶ 31) (Miss.Ct.App.2008) (quoting Ray v. Babcock and Wilcox Co., 388 So.2d 166, 168 (Miss.1980)). The Commission found that Weaver was subject to Concert Systems’ control at all times when he worked for them. The job Weaver performed was an integral part of Concert Systems’ business. Weaver was given instructions on when to leave and arrive, the route to take, and where to spend the night. Concert Systems provided all the equipment used on the job, and .Concert Systems had the right to fire Weaver at any time. Weaver did not have the right to employ any workers. However, Weaver was employed on an as-needed basis and only worked for Concert Systems on occasion. Taxes were not withheld from Weaver’s paycheck. He was paid on a per-diem basis, and Concert Systems paid for his lodging and travel expenses. Also, Weaver held a full-time position with another employer while working for Concert Systems.

¶ 14. In finding that Weaver was an employee of Concert Systems, the ALJ admitted that this case was “not as clear cut as in some other cases.” However, “workers’ compensation law is to be liberally and broadly construed, resolving doubtful cases in favor of compensation so that the beneficent purposes of the [A]ct may be accomplished.” McCrary v. City of Biloxi, 757 So.2d 978, 981 (¶ 15) (Miss. 2000) (quoting DeLaughter v. S. Cent. Tractor Parts, 642 So.2d 375, 379-80 (Miss.1994)). We agree with the Commission and ALJ that, although a close case, Weaver meets the statutory definition of an employee. We find that the Commission’s decision was supported by substantial evidence and was not arbitrary or capricious.

II. NUMBER OF EMPLOYEES

¶ 15. Mississippi workers’ compensation law states that in order for an employer to be subject to its provisions, the employer must “have in service five (5) or more workmen or operatives regularly in the same business or in or about the same establishment under any contract of hire, express or implied.” Miss. Code Ann. § 71-3-5 (Supp.2009).

¶ 16. The Friersons admit that in July 2006, Concert Systems had four full-time employees. Randy and Candi Frier-son argue that they were not employees under the Act because they did not draw a salary from the company. However, they were officers in the company and paid their house and car notes from the company’s account. Therefore, they were compensated and should be considered employees. Thus, without the inclusion of Weaver as an employee, Concert Systems had six employees.

¶ 17. We find that the Commission’s holding that Weaver was an employee of Concert Systems and is entitled to workers’ compensation benefits was supported by substantial evidence. Therefore, we find Concert Systems’ issues on appeal are without merit. The judgment of the circuit court affirming the Commission’s decision is affirmed.

¶ 18. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR.


author: SHAW, Justice. MURDOCK, Justice

text:
    Fletcher Mitchell SMITH, as personal representative of the estate of Jo Everett McLeod, deceased v. WACHOVIA BANK, N.A., as personal representative of the estate of William Wynn McLeod, deceased. Wachovia Bank, N.A., as personal representative of the estate of William Wynn McLeod, deceased v. Fletcher Mitchell Smith, as personal representative of the estate of Jo Everett McLeod, deceased.
    1071189 and 1071239.
    Supreme Court of Alabama.
    Sept. 30, 2009.

      Timothy P. Donahue and Michael A. Casey, Jr., of Donahue & Associates, LLC, Birmingham, for appellant/cross-appellee Fletcher Mitchell Smith, as personal representative of the estate of Jo Everett McLeod, deceased.
    C. Fred Daniels and Melanie M. Atha of Cabaniss, Johnston, Gardner, Dumas & O’Neal, LLP, Birmingham, for appel-lee/cross-appellant Wachovia Bank, N.A., as personal representative of the estate of William Wynn McLeod, deceased.
   SHAW, Justice.

In case no. 107Í189, Fletcher Mitchell Smith, as the personal representative of the estate of Jo Everett McLeod (“the wife”), deceased, appeals from a judgment against Smith; Smith’s wife, Maria Smith (“Maria”), the wife’s niece; and the wife’s estate in a breach-of-contract action filed by Wachovia Bank, N.A. (“Wachovia”), in its capacity as the personal representative of the estate of William Wynn McLeod (“the husband”), deceased. In case no. 1071239, Wachovia cross-appeals from the trial court’s declaration that certain equitable claims asserted by Wachovia were rendered moot by the judgment in Wachovia’s favor. We reverse and remand in both cases.

Facts and Procedural History

The husband and wife were married in 1957. No children were born to them during their approximately 49-year marriage. The record reflects that despite filing joint tax returns, the husband and wife for the most part kept them finances separate.

The record suggests that the separate financial arrangements of the husband and wife and the terms of the husband’s will, as set out below, were the husband’s response to marital difficulties between the husband and the wife and his attempts to leave the wife an amount equal to or only slightly larger than the wife’s statutory elective share. See § 43-8-70, Ala.Code 1975. The testimony of Katherine N. Barr, an attorney who prepared a will for the husband in 1995, indicated that the husband was “very fearful” of the wife, that he was afraid to file for divorce, and that he took extreme steps to keep the wife unaware of his estate-planning activities. Similarly, Lynn Baxley Ault, the attorney who, purportedly following the wife’s becoming aware of the contents of the 1995 will, prepared a new will for the husband in 1996, indicated both her concern and the husband’s fear that the wife would contest his will. According to Ault, the husband informed her “that he did not want [the] wife to receive ‘one penny more’ than the elective share.” Ault further noted that the marital relationship between the husband and the wife appeared to be “poor” and obviously one of “mutual distrust” and that the husband “seemed afraid of his wife.” Ault specifically observed during trial that the husband “seemed to be ... cowed by [the wife]” and that “[h]e did not want to confront her.” She further stated that the husband was extremely secretive about his estate plans because, she said, “[she] got the impression he was afraid [the wife] might react to him in a way that would be very unpleasant for him.”

On April 25, 2005, the husband, then elderly and ailing, executed a durable power of attorney naming the wife his attorney-in-fact. Specifically, the power of attorney granted the wife broad powers “to act in, manage, and conduct all [the husband’s affairs] ... for [the husband’s] use and benefit.” (Emphasis added.) According to its terms, the power of attorney became effective “upon the disability, incompetency, or incapacity of the [husband].” It is unclear from the record whether the wife knew that the husband had executed the power of attorney or when she discovered it.

Beginning in late 2006, after the husband was moved into a nursing home following the wife’s cancer diagnosis and ensuing treatment, the wife used the power of attorney to transfer stock certificates previously held solely in the husband’s name into either jointly held accounts or accounts held solely in the wife’s name. The assets transferred by the wife totaled $604,368.50. The wife also consolidated several Wachovia checking accounts, some of which were solely in the husband’s name, and prematurely cashed out an $85,000 certificate of deposit held solely in the husband’s name. According to Maria, the wife’s transfer of the assets into her own name and/or jointly held accounts reflected both the wife’s displeasure that two-thirds of the husband’s estate was to be left to his niece and nephew and a desire that everything be “ ‘equally divided.’ ” There was also testimony indicating that the wife undertook the consolidation of assets to liquidate the assets in order to finance the anticipated future health-care costs of both the husband and the wife. The above-described transactions, which allegedly occurred without the husband’s knowledge, left the husband as the possessor of individually titled assets totaling one dollar and twelve cents.

On February 21, 2007, the wife died at the age of 81 years. The wife’s will, which she executed in 2006, named Smith as the personal representative of her estate. Pursuant to the terms of the wife’s will, her estate was to be divided as follows: 50% to Shannon Everett, a nephew of the wife; 87.5% to Smith and Maria; and 12.5% to Geri and Ricki Price, the wife’s grandnephew and his wife.

Following the wife’s death, Julia Roth, the conservator for Jefferson County, was appointed conservator of the husband’s estate. Although Roth discovered the transfers made by the wife pursuant to the power of attorney, disclosed them to the husband’s heirs, and reportedly considered filing a declaratory-judgment action seeking a determination as to the propriety of the transfers, no legal action was taken before the husband’s death on June 27, 2007. Roth was, however, able to recover some of the husband’s assets that had been transferred by the wife.

The husband’s will named Wachovia as the personal representative of his estate. It provided that Elaine Autrey and William Carlisle McLeod, the husband’s niece and nephew, were his sole heirs should the wife predecease him.

On August 20, 2007, Wachovia filed the underlying action against Smith (both in his individual and representative capacities) and Maria. Wachovia’s complaint included claims of abuse of a confidential relationship, undue influence, breach of fiduciary duty, breach of contract, conversion, fraud, money had and received, and conspiracy. In addition to restitution and “exemplary damages,” Wachovia sought an accounting and the imposition of a constructive trust on all transferred assets, which it estimated totaled approximately $1,170,000.

In January 2008, Smith and Maria filed a counterclaim in which they asserted claims of abuse of process and libel, slander, and defamation against Wachovia. Wachovia amended its complaint, omitting the fraud count and reducing its requested damages to $668,779.09. Shannon Everett, the majority beneficiary under the wife’s will, intervened in the action to “unite with the defendants in defending the claims made by [Wachovia]” and in order “[t]o protect [his] interests as ... a beneficiary of [the wife’s] will.”

The trial court severed the counterclaims filed by Smith and Maria, ordering that they would be considered post-judgment should the defendants prevail at trial. The trial court also severed Wacho-via’s equitable and legal claims, indicating that it would rule on the equitable claims following trial on the legal claims. Trial began on February 25, 2008. At the conclusion of Wachovia’s case, and again at the close of all the evidence, Smith, Maria, and Everett jointly moved for a judgment as a matter of law (“JML”) on grounds that Wachovia had failed to present sufficient evidence; the trial court partially granted that motion, dismissing all tort-based claims as having abated upon the husband’s death and dismissing all claims against Smith and Maria individually. However, the remaining breach-of-contract claim was submitted to the jury, which returned a verdict in Wachovia’s favor and awarded the husband’s estate $668,779.09 in damages.

On March 21, 2008, Wachovia submitted legal authority in support of its equitable claims. Smith, in his capacity as personal representative of the wife’s estate, filed a postjudgment motion for a JML or, in the alternative, for a new trial or a remittitur, again arguing that Wachovia’s breach-of-contract claim had been erroneously submitted to the jury and that the trial court erred in excluding certain items of evidence offered by the defendants at trial. Following a hearing, the trial court denied that motion. In its final order, the trial court also declared Wachovia’s requests for equitable relief moot because, it concluded, the husband’s estate had been fully compensated by the jury’s award on the breach-of-contract claim. It further entered a summary judgment in favor of Wachovia as to the counterclaims asserted by Smith and Maria. The trial court entered an amended final judgment on April 18, 2008, clarifying that the judgment was entered solely against the wife’s estate and not against either Smith or Maria individually. Smith appeals the judgment in favor of Wachovia on the breach-of-contract claim (case no. 1071189); Wachovia cross-appeals from that part of the judgment holding that its equitable claims are moot (case no. 1071239).

Standard of Review

‘“When reviewing a ruling on a motion for a JML, this Court uses the same standard the trial court used initially in deciding whether to grant or deny the motion for a JML. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala.1997). Regarding questions of fact, the ultimate question is whether the nonmovant has presented sufficient evidence to allow the case to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So.2d 1350 (Ala.1992). The nonmovant must have presented substantial evidence in order to withstand a motion for a JML. See § 12-21-12, Ala.Code 1975; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. Carter, 598 So.2d at 1353. In reviewing a ruling on a motion for a JML, this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw. Id. Regarding a question of law, however, this Court indulges no presumption of correctness as to the
trial court’s ruling. Ricwil, Inc. v. S.L. Pappas & Co., 599 So.2d 1126 (Ala.1992).’
“Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875 So.2d 1143, 1152 (Ala.2003).”

Southland Bank v. A & A Drywall Supply Co., 21 So.3d 1196, 1202-03 (Ala.2008).

Discussion

On appeal, Smith argues that the trial court erred in denying the motions for a JML and/or a new trial. Specifically, Smith contends that because Wachovia failed to prove that the power of attorney executed by the husband in favor of the wife was actually a contract, the breach-of-contract claim should not have been submitted to the jury. See Reynolds Metals Co. v. Hill, 825 So.2d 100, 105-06 (Ala.2002) (noting that the existence of “a valid contract binding the parties” is an element of a breach-of-contract claim under Alabama law). Thus, he concludes, “[a]ny claim for ‘breach’ of the power of attorney should have been classified as a tort claim for ‘breach of fiduciary duty,’ and pursuant to the Alabama Code, any such tort claim(s) expired upon [the husband’s] death.” (Smith’s brief, at p. 16.)

Alabama caselaw has historically viewed the execution of a power of attorney as creating an agency relationship.

“ ‘A power of attorney is defined as “[a]n instrument in writing whereby one person, as principal, appoints another as his agent and confers authority to perform certain specified acts or kinds of acts on behalf of [a] principal. An instrument authorizing another to act as one’s agent.... The agent is attorney in fact....” Black’s Law Dictionary 1171 (6th ed.1990). When one accepts the agency, she implicitly covenants to use the powers conferred upon her for the sole benefit of the party conferring such power, consistent with the purposes of the agency relationship. See, Dudley v. Colonial Lumber Co., 223 Ala. 533, 137 So. 429 (1931). Therefore, when one accepts the power of attorney, she impliedly covenants to use the powers bestowed upon her for the sole benefit of the one conferring that power on her, consistent with the purposes of the agency relationship represented by the power of attorney. Powers of attorney will be strictly construed, restricting the powers to those expressly granted and those incidental powers that are necessary to effectuate the expressed powers. Hall v. Cosby, 288 Ala. 191, 258 So.2d 897 (1972). The principal-agency relationship is fiduciary in nature and imposes upon the agent a duty of loyalty, good faith, and fair dealing. See, Williams v. Williams, 497 So.2d 481 (Ala.[1986]); Lauderdale v. Peace Baptist Church of Birmingham, 246 Ala. 178, 19 So.2d 538 (1944).
“ ‘ “An agent sustains a position of trust toward his principal and in all transactions affecting the subject of the agency, the law dictates that he must act in the utmost good faith and must make known to his principal each and all material facts within his knowledge which in any way affect the transaction and subject matter of his agency.
“ ‘ “The law sedulously regards this principle and acts of an agent which tend to violate this fiduciary obligation are prima facie voidable ... and are considered, in law, as ‘frauds upon confidence bestowed.’ ”
‘[Myers] v. Ellison, 249 Ala. 367, 369, 31 So.2d 353, 355 (1947). (Citations omitted.) (Emphasis added.) An agent is not permitted to occupy a position that would allow her to profit as a result of that agency relationship. Lauderdale v. Peace Baptist Church of Birmingham, supra. In Lesnick v. Lesnick, 577 So.2d 856, 859 (Ala.1991), this Court held that a guardian’s commingling of the funds of her ward with those of her own and those owned jointly, thereby making it impossible to determine whose funds were used for what purposes, was sufficient cause for the probate court to include jointly owned property in an accounting, because “[the] joint tenancy principle of law does not defeat a guardian’s obligations to act in her fiduciary capacity as custodian of the ward’s estate.” The agent, if otherwise competent, may testify as a witness as to the nature and extent of her authority. See, McCarty v. Skelton, 233 Ala. 531, 172 So. 901 (1937).’
“Sevigny v. New South Fed. Savs. & Loan Ass’n, 586 So.2d [884] at 886-87 [ (Ala.1991) ].”

Harrelson v. Harrelson, 7 So.3d 1004, 1009-10 (Ala.Civ.App.2008). See also Barron v. Scroggins, 910 So.2d 780, 786 (Ala.Civ.App.2005); Olanrewaju v. Bankers Ins. Co., 688 So.2d 820, 822 (Ala.Civ.App.1996); Williams v. Williams, 497 So.2d 481, 483 (Ala.1986); 3 Am.Jur.2d Agency § 205 (2009) (“An agent is a fiduciary with respect to the matters within the scope of the agency.”). The parties have provided no Alabama caselaw holding that executing a power of attorney per se creates a contractual relationship; instead, Alabama caselaw, as indicated above, identifies a power of attorney as creating a fiduciary relationship.

Both parties raise numerous arguments on appeal regarding whether the power of attorney in this case was a contract. Smith argues that the power of attorney was not bargained for or supported by consideration and that under Alabama law powers of attorney have never been held to constitute contracts. On the other hand, Wachovia, citing SouthTrust Bank v. Williams, 775 So.2d 184 (Ala.2000), argues that the power of attorney required only a promise to be exchanged for an act, which is in the nature of a valid unilateral contract. We conclude that the dispositive issue presented on appeal is whether Wa-chovia demonstrated the existence of consideration: that a promise or performance was exchanged by the husband for the performance undertaken by the wife under the power of attorney.

A contract, in its most basic sense, “is a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.” Restatement (Second) of Contracts § 1 (1981). In this context, a “promise” is “a manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promisee in understanding that a commitment has been made.” Id. § 2(1).

Further, “the formation of a contract requires a bargain in which there is ... a consideration.” Restatement (Second) of Contracts § 17(1). “To constitute consideration, a performance or a return promise must be bargained for,” and “[a] performance or return promise is bargained for if it is sought by the promisor in exchange for his promise and is given by the promisee in exchange for that promise.” Restatement (Second) of Con tracts § 71(1) and (2) (emphasis added). To constitute consideration, the promise on the part of the promisor “must induce the promisee to exchange the promisee’s conduct for the promise.... [T]he offeree must actually or apparently be induced to act by the promise.” John D. Calamari & Joseph M. Perillo, The Law of Contracts § 4.2(c) (4th ed.1998). Further, “[i]t is a well-settled general rule that consideration is an essential element of, and is necessary to the enforceability or validity of, a contract.” Kelsoe v. International Wood Prods., Inc., 588 So.2d 877, 878 (Ala.1991).

In the instant case, Smith contends that Wachovia has not demonstrated the existence of a promise or performance on the part of the husband in exchange for the performance undertaken by the wife.

Our review of the record reflects that, during the hearing on the defendants’ motions for a JML, the following exchange occurred with regard to the breach-of-contract claim:

“THE COURT: All right. Let the record show that the jury has been discharged for the day and that at the conclusion of all the evidence we are here on defendants’ motions for Judgment as a Matter of Law. They were timely filed, both after the plaintiffs case and at the conclusion of all the evidence.
“Let me hear from the plaintiff. What causes of action you claim you have proven and let’s go through the elements of those and show me where there’s substantial evidence of each element of each claim. Otherwise, I’m going to dismiss the claim.
“[Wachovia’s counsel]: All right. Our first cause of action, Your Honor, is breach of contract.
“THE COURT: All right. Is a power of attorney a contract?
“[Wachovia’s counsel]: Can be. The answer is can be.
“THE COURT: What’s the consideration for it?
“[Wachovia’s counsel]: Well, [the wife’s] actions along with [the husband’s] creation of that legal relationship through the execution of the power of attorney, that [serves as] consideration necessary to support a contract when it’s a unilateral contract, which it was [Restatement (Second) of Contracts § 71], specifically designates that the creation of a legal relationship can be sufficient consideration to support a contract.
“THE COURT: All right. Let me hear the response to that.
“[Everett’s counsel]: Judge, there is no consideration. A power of attorney has never been held under any caselaw I can find in Alabama to be a contract. It’s missing a lot of elements. [The wife] didn’t even have to be aware of it until she found it in the safe deposit box.... She didn’t receive anything in return for agreeing to be his power of attorney. She received no consideration at all. And without consideration, there is no contract under Alabama law.
“THE COURT: What is the consideration?
“[Wachovia’s counsel]: Well, it’s just that, that she acted through his execution of a power of attorney to serve in that capacity.
“THE COURT: You’re telling me that the consideration is just her agreeing to act as an attorney—
“[Wachovia’s counsel]: And then acting on it. I believe that’s a unilateral contract.
“THE COURT: Have you got any cases that say that the — what is this Restatement § 71 say[s]?
“[Wachovia’s counsel]: Do we have it cited in our motion ... ?
“[Wachovia’s counsel]: It says that the creation of a legal relationship, such as an agency relationship can serve as a consideration to support a contract. That’s what it says.
“THE COURT: Are there any eases that [say] that the power of attorney is a contract?
“[Wachovia’s counsel]: I’ve not — we haven’t found any cases that say the power of attorney alone is a contract, no. Our argument is it’s a unilateral contract here, and that [the husband] in executing the power of attorney made an offer that she accepted when she began to act as his attorney-in-fact pursuant to that, and that authority that she was provided pursuant to that was consideration. He gave her authority to act on her behalf — on his behalf, excuse me. And that giving of authority is a consideration.
“[Everett’s counsel]: That’s a liability, not a consideration. And the only case that I could find. I’m not sure I addressed it in this, but I address it [in] the summary-judgment motion we filed, that even come close to this situation was a situation where there was a — the Court found that there was a duty required under some document that might be argued to be a contract. The duty itself created a breach of a duty, not a breach of a contract.
“THE COURT: Yeah. And so it’s really a tort instead of a contract.
“[Everett’s counsel]: That’s right.
“[Smiths’ counsel]: Exactly.
“THE COURT: I’m inclined to think that makes more sense.”

Smith reiterates on appeal his claim that the power of attorney was not supported by consideration or a promise or performance on the part of the husband. We agree.

Wachovia has not identified a promise by the husband given “in exchange” for the wife’s performance of her duties under the power of attorney. The explicit terms of the power of attorney directed the wife to conduct the husband’s affairs “for [the husband’s] use and benefit ” only, and there is no other instrument or contract coupled with the power of attorney indicating that the wife was paid for her services or received anything from the husband other than the ability or authority to perform.

“When one accepts the agency [conferred by a power of attorney], she implicitly covenants to use the powers conferred upon her for the sole benefit of the party conferring such power, consistent with the purposes of the agency relationship. See, Dudley v. Colonial Lumber Co., 223 Ala. 533, 137 So. 429 (1931). Therefore, when one accepts the power of attorney, she impliedly covenants to use the powers bestowed upon her for the sole benefit of the one conferring that power on her, consistent with the purposes of the agency relationship represented by the power of attorney. ... The principal-agency relationship is fiduciary in nature and imposes upon the agent a duty of loyalty, good faith, and fair dealing....”

Sevigny v. New South Fed. Sav. & Loan Ass’n, 586 So.2d 884, 886-87 (Ala.1991).

Wachovia contends that the power of attorney gave rise to a legal relationship between the husband and the wife and that this legal relationship conferred on the wife authority over the husband’s affairs and that this conferring of authority thus served as the promise given by the husband for the wife’s performance. However, no precedent is offered for the proposition that, under Alabama law, the mere conferring of actual authority to perform under a purported contract can constitute the promise exchanged by the promisor for that performance. In any event, the terms of the power of attorney required that the authority given by that document be exercised for the husband’s “use and benefit.” See also Harrelson, supra, and Sevigny, supra. Although the assumption of duties by the wife under the power of attorney constitutes the performance by the wife under the power of attorney, the wife could receive no benefit from the authority created by the instrument, and it is unclear how that grant of authority could constitute a “promise” made by the husband to induce the wife’s performance. Thus, Wachovia has not identified a legally cognizable promise or performance on the part of the husband in exchange for the wife’s performance.

Because no promise or performance was extended to the wife by the husband for her performance under the power of attorney, the wife’s performance under the power of attorney was gratuitous. See Kelsoe, 588 So.2d at 878 (holding that a promise not supported by consideration was gratuitous in nature “and created no legally enforceable contract right”). The wife was not prompted to undertake the act of managing a portion of her disabled husband’s affairs by a promise on the husband’s part; instead, the undertaking was gratuitous in nature and did not create any legally enforceable contract right. Id. Although in other factual situations a contractual relationship may be created by a power of attorney, substantial evidence of such a relationship was not demonstrated in this case.

In the absence of a contract, and applying our previously established agency analysis, we conclude that Wachovia’s claim is more accurately described as a claim for damages based on an alleged breach of a fiduciary duty. See, e.g., Jefferson County v. Reach, 368 So.2d 250, 252 (Ala.1978) (“Where the wrong results from a breach of a promise, the claim is ex contractu. However, if the wrong springs from a breach of a duty either growing out of the relationship of the parties, or imposed by law, the claim is ex delicto.”); Barron v. Scroggins, 910 So.2d at 786; Williams v. Williams, 497 So.2d at 483. Because, as Wachovia’s counsel admitted during trial, a breach of fiduciary duty “is a tort” and because no such tort claim was pending at the time of the husband’s death, that claim abated. See Robbins v. Sanders, 890 So.2d 998, 1011 (Ala.2004). See also § 6-5-462, Ala.Code 1975 (“In all proceedings not of an equitable nature, all claims upon which an action has been filed and all claims upon which no action has been filed on a contract, express or implied, and all personal claims upon which an action has been filed, except for injuries to the reputation, survive in favor of and against personal representatives.... ”).

Wachovia also argues that “one can be liable in contract or tort for breaching an express promise to use care.” (Wachovia’s brief, at p. 36.) Although that may be an accurate statement of the present state of Alabama law, it has no application to the facts of this case. In fact, the case relied on by Wachovia, Blumberg v. Touche Ross & Co., 514 So.2d 922 (Ala.1987), involved an express, written promise by the defendant accounting firm to use generally accepted auditing and accounting principles and the plaintiffs written acceptance of the terms of the offered services. In passing on the viability of the plaintiffs claim in light of the applicable limitations periods, this Court stated:

“In Alabama, one who contracts with another and expressly promises to use due care is undoubtedly liable in both tort and contract when his negligence results in injury to the other party. He is liable in contract for breaching an express promise to use care. He is liable in tort for violating the duty imposed by law on all people not to injure others by negligent conduct. The injured party has the choice of remedies when a contract contains an express promise to use due care. Eidson v. Johns-Ridout’s Chapels, Inc., 508 So.2d 697, 701 (Ala.1987); Comment, Contractual Recovery for Negligent Injury, 29 Ala. L.Rev. 517, 524-25 (1978).”

Blumberg, 514 So.2d at 927. Here, as discussed above, we conclude that there was no contract between the parties; therefore, the holding in Blumberg is clearly inapposite.

Conclusion

Wachovia failed to present substantial evidence of a necessary element of the breach-of-contract claim, i.e., the existence of a valid contract; therefore, we conclude that the trial court erred in submitting the breach-of-contract claim to the jury. Consequently, the judgment on that claim is due to be reversed. Because we reverse the judgment on the breach-of-contract claim, the trial court’s judgment that Wa-chovia’s claims for equitable relief are moot is also due to be reversed. We therefore remand the cause for Wachovia to present its equitable claims seeking recovery of the assets allegedly improperly seized by the wife.

1071189 — REVERSED AND REMANDED.

1071239 — REMANDED AND REMANDED.

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

MURDOCK, J., dissents.

MURDOCK, Justice

(dissenting).

The main opinion concludes that the lack of consideration to the wife forecloses consideration of the claim against Fletcher Mitchell Smith, personal representative of her estate, as an ex contractu claim. Consideration is not always necessary for a claim to be considered contractual in nature. This is such a case.

First, I am of the view that it is the law, not the bargaining and exchanges between the parties, that made the wife’s obligations under the power of attorney contractual in nature. That is, the law simply treats the wife’s undertaking as contractual in nature; it imputed to her, by virtue of her acceptance of the power of attorney, a promise to the principal (the husband) regardless of whether the wife received any consideration for her undertaking. This may be seen in the fact that an agent under a power of attorney is deemed by the law to be an agent in fact — a contractual relationship — and that the law implies to the agent a “covenant,” or promise, to act accordingly:

“A power of attorney is defined as ‘[a]n instrument in writing whereby one person, as principal, appoints another as his agent and confers authority to perform certain specified acts or kinds of acts on behalf of principal. An instrument authorizing another to act as one’s agent.... The agent is attorney in fact....’ Black’s Law Dictionary 1171 (6th ed.1990). When one accepts the agency, she implicitly covenants to use the powers conferred upon her for the sole benefit of the party conferring such power, consistent with the purposes of the agency relationship. See, Dudley v. Colonial Lumber Co., 223 Ala. 533, 137 So. 429 (1931). Therefore, when one accepts the power of attorney, she impliedly covenants to use the powers bestowed upon her for the sole benefit of the one conferring that power on her, consistent with the purposes of the agency relationship represented by the power of attorney.”

Sevigny v. New South Fed. Sav. & Loan Ass’n, 586 So.2d 884, 886 (Ala.1991) (emphasis added). In holding that the power of attorney does not impose upon the agent an obligation in the nature of contract, today’s opinion conflicts not only with the foregoing discussion in Sevigny, but also with the opinion in Thompson v. Ware, 200 Ala. 624, 626, 76 So. 982, 984 (1917), in which this Court explained:

“This power of attorney, however, should be construed in the light of surrounding circumstances. As said by the court in Brantley v. So. L.I. Co., [53 Ala. 554 (1875) ]:
‘All contracts must be read in the light of surrounding circumstances, the occasion which gave rise to them, the relative position of the parties, and their obvious design as to the objects to be accomplished must be looked at, in order to arrive at their true meaning, and to enable the court to carry out the intention of the parties.’ ”

(Emphasis added.) See also In re Trust of Jameison, 300 Mont. 418, 423, 8 P.3d 83, 87 (2000) (“Powers of attorney generally are construed by the rules governing the interpretation of written instruments.”); and Restatement (Second) of the Law of Agency § 32 (1958) (“Except to the extent that the fiduciary relation between principal and agent requires special rules, the rules for the interpretation of contracts apply to the interpretation of authority.”).

Furthermore, the conclusion that acceptance of a power of attorney gives rise to obligations in the nature of contract is a conclusion that has been reached by courts in other states. In De Leonis v. Etchepare, 120 Cal. 407, 409, 52 P. 718, 718 (1898), the California Supreme Court noted: “That the relation between the parties created by the power of attorney is a contract relation is beyond question.” See also Maenhoudt v. Bank, 34 Kan.App.2d 150, 154, 115 P.3d 157, 161 (2005) (“The [power of attorney] is a contract between [the principal] and [her attorney in fact].”); Ashby v. Guillot, 593 So.2d 668, 670 (La.Ct.App.1991) (“A power of attorney is a contract.”); In re Conservatorship of Goodman, 766 P.2d 1010, 1012 (Okla.Ct.App.1988) (“A [p]ower of attorney is a contract of agency.”).

Second, the lack of consideration to the wife can be seen as not fatal to the treatment of Wachovia’s claim as a claim ex contractu when one considers the doctrine of promissory estoppel. Promissory estop-pel was defined in Bush v. Bush, 278 Ala. 244, 245, 177 So.2d 568, 570 (1964):

“ ‘A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.’ Restatement of the Law of Contracts, § 90, page 110.”

Here, the law implied to the wife a covenant, or promise, to use the power conferred upon her solely for the benefit of the husband. The husband acted in reliance on this promise by giving the power of attorney to the wife. To avoid injustice, the wife is estopped to deny that promise.

Finally, I am concerned about the practical ramifications of our holding today. If a breach by an agent of his or her duty under a power of attorney does gives rise only to an action ex delicto that abates upon the death of the principal, see § 6-5-462, Ala.Code 1975, then the dishonest agent need only wait until the principal is near death to misappropriate the principal’s assets, knowing that neither the principal nor the principal’s family is likely to discover the fraud until after abatement.

On the basis of the foregoing, I respectfully dissent.

      . The record reflects that the wife changed her will immediately subsequent to the period of hospitalization in 2006, allegedly on grounds that her husband "had an adequate estate of his own.” The wife’s prior will had left her entire estate to the husband should he survive her by 90 days.

      . Autrey also moved to intervene, alleging the exact same causes of action previously asserted in Wachovia's amended complaint Au-irey is not a party to either appeal.

      . Smith, individually, and Maria do not appeal from the trial court’s judgment on their counterclaims; Everett is also not a party to these appeals.

      . Smith does not pursue a remittitur on appeal.

      . This appears to be the law in other jurisdictions as well. See Tennessee Fanners Life Reassurance Co. v. Rose, 239 S.W.3d 743, 749 (Tenn.2007) ("The execution of a power of attorney creates a principal-agent relationship.”); Lease v. Commissioner of Internal

        Revenue, 3 T.C.M. (CCH) 404, 408, 13 T.C.M. (P-H) 44, 137 (docket no. 542, April 28, 1944) (analysis of the powers and duties under subject powers of attorney demonstrated "no more than the relationship of principals and agents”); Arcweld Mfg. Co. v. Burney, 12 Wash.2d 212, 221, 121 P.2d 350, 354 (1942) ("By ‘power of attorney' is commonly meant an instrument in writing by which one person, as principal!,] appoints another as his agent and confers upon such agent the authority to act in the place and stead of the principal for the avowed purpose, or purposes, set forth in the instrument.”).

      . This Court and others have applied general principles of contract inteipretation when construing written powers of attorney. See, e.g., Thompson v. Ware, 200 Ala. 624, 76 So. 982 (1917); In re Trust of Jameison, 300 Mont. 418, 423, 8 P.3d 83, 87 (2000) ("Powers of attorney generally are construed by the rules governing the inteipretation of written instruments.”); and Restatement (Second) of the Law of Agency § 32 (1958) ("Except to the extent that the fiduciary relation between principal and agent requires special rules, the rules for the interpretation of contracts apply to the interpretation of authority.”). However, the application of those general principles of construction and capacity is not determinative of the issue before us.

      . Wachovia also contends that other states have held that the execution of a power of attorney can create a contractual relationship. See, e.g., Maenhoudt v. Bank, 34 Kan.App.2d 150, 154, 115 P.3d 157, 161 (2005) ("The [power of attorney] is a contract between [the principal] and [her attorney in fact].”); Ashby v. Guillot, 593 So.2d 668, 670 (La.Ct.App.1991) ("A power of attorney is a contract.”); In re Conservatorship of Goodman, 766 P.2d 1010, 1012 (Okla.Ct.App.1988) (“A [p]ower of attorney is a contract of agency.”); Oil Well Core Drilling Co. v. Barnhart, 20 Cal.App.2d 677, 679, 67 P.2d 696, 697 (1937) (“ ‘That the relation between the parties created by the power of attorney is a contract relation is beyond question.' ” (quoting DeLeonis v. Etchepare, 120 Cal. 407, 52 P. 718 (1898))).

      . Despite its initial leanings, the trial court allowed the breach-of-contract claim to be submitted to the jury, noting, when trial resumed the following morning, that “the jury issue is whether or not there was a contract between [the husband and wife].”

      . In reaching that decision, the Court specifically did not reach "the question ... whether an implied term to exercise due care would also give rise to an action in contract.” Blumberg, 514 So.2d at 927 n. 4.

      . The fact that Smith’s actions in this case may also be considered as " ' "frauds upon confidence bestowed,” ’ ” as also stated in Sevigny, 586 So.2d at 887 (quoting Myers v. Ellison, 249 Ala. 367, 369, 31 So.2d 353, 355 (1947)), is not inconsistent with this conclusion, as a given confidential relationship may arise by contract as well as by law.

      . In the present case, although the main opinion states that it is remanding the cause to the trial court for further proceedings on Wachovia's claims for equitable relief, it is not clear to me which, if any, of the alleged claims would constitute separate, equitable claims that survived William Wynn McLeod's death under § 6-5-464, Ala.Code 1975. See, e.g., Radenhausen v. Doss, 819 So.2d 616, 620 (Ala.2001) (explaining that "a constructive trust is an equitable remedy; and a request to impose such a trust is not a cause of action that will stand independent of some wrongdoing”); Gulf States Steel, Inc. v. Lipton, 765 F.Supp. 696, 704 (N.D.Ala.1990) ("[The] court’s research has revealed no case in any jurisdiction that supports GSS’ argument that constructive trust constitutes a cause of action.”); Scroggins v. Alabama Gas Corp., 275 Ala. 650, 652, 158 So.2d 90, 92 (1963) (money had and received is action at law); Ex parte HealthSouth Corp., 978 So.2d 745, 754 (Ala.2007) (to same effect).


author: MURDOCK, Justice. WOODALL, Justice

text:
    James McKINNEY v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY.
    1071506.
    Supreme Court of Alabama.
    Sept. 30, 2009.

      Michael K. Beard and Thomas M. Powell of Marsh, Rickard & Bryan, P.C., Birmingham, for appellant.
    Kori L. Clement of Hare, Clement & Duck, P.C., Birmingham, for appellee.
   MURDOCK, Justice.

James McKinney appeals from an order of the Tuscaloosa Circuit Court entering a summary judgment in favor of Nationwide Mutual Fire Insurance Company (“Nationwide”) on McKinney’s complaint seeking underinsured-motorist benefits. We reverse the judgment of the trial court.

I. Facts and Procedural History

McKinney’s vehicle was involved in a collision with a vehicle driven by John Elwin Jackson in the City of Tuscaloosa. Subsequently, McKinney sued Jackson and Nationwide, McKinney’s insurer, in the Tuscaloosa Circuit Court seeking recovery for alleged personal injuries and property damage sustained in the accident. Nationwide answered the complaint and submitted the following as its ninth defense: “[Nationwide] pleads offset against any potential uninsured motorist benefits due to [McKinney] and claims that it is entitled by contract to offset any uninsured motorist payments with payments made by [Nationwide] to [McKinney] for medical payments.” The portion of McKinney’s automobile policy providing uninsured/underinsured-motorist (“UM”) coverage contained a section entitled “Limits and Conditions of Payment.” In that section, the policy stated, in pertinent part:

“4. Damages payable [for UM coverage] will be reduced by any amount paid or payable under:
“a) the Medical Payments coverage in this policy.”

The trial court dismissed Jackson as a defendant pursuant to a stipulation of dismissal because his liability insurer had paid McKinney its full policy limit of $25,000 and Nationwide had waived any rights of subrogation against Jackson.

McKinney filed an amended complaint alleging, in addition to the claims already made, bad-faith refusal by Nationwide to pay a claim. McKinney also requested class certification and a judgment declaring that the setoff provision in the automobile insurance policies Nationwide issues in Alabama is not valid, a reformation of all potential class members’ policies containing the setoff provision, an order compelling Nationwide to review all closed claims to determine if additional UM benefits should be paid in light of a favorable ruling by the trial court, and an order enjoining Nationwide from inserting such setoff provisions in its policies issued in Alabama in the future.

The trial court subsequently entered an order granting McKinney’s motion for a separate trial of his bad-faith claim against Nationwide. Nationwide filed a motion for a summary judgment as to all the other claims. McKinney and Nationwide submitted to the trial court a joint stipulation of facts concerning Nationwide’s motion for a summary judgment. The stipulation of facts provided as follows:

“1. Nationwide Mutual Fire Insurance Company issued a policy of automobile insurance coverage to James McKinney that afforded uninsured/underinsured motorist coverage and medical payments coverage. Said policy was in full force and effect on the date of the collision made the subject of the above-styled case.
“2. [McKinney] was charged and he paid a separate premium for medical payments coverage and the uninsured or underinsured motorist coverage.
“3. That the uninsured/underinsured motorist coverage policy limit of the Nationwide policy issued by Nationwide to Mr. McKinney is $20,000.00.
“4. That [McKinney] has no applicable uninsured/underinsured motorist coverage other than that afforded by the Nationwide policy and that only one vehicle is insured under the Nationwide policy.
“5. That on March 18, 2003, while the Nationwide policy was in full force and effect, [McKinney] sustained bodily injuries and pain and suffering as a result of a motor vehicle accident caused by the negligence of John Elwin Jackson.
“6. That the amount Mr. McKinney is legally entitled to recover from the tort-feasor, John El-win Jackson, the under-insured motorist, is in excess of $45,000.00.
“7. That the liability insurer of John Elwin Jackson has paid [McKinney] its full policy limits of $25,000.00 and Nationwide waived any rights of subrogation against John Elwin Jackson.
“8. That [McKinney] has satisfied and complied with all of the terms and conditions as defined by the Nationwide policy.
“9. That [McKinney’s] insurance policy with Nationwide expressly states that the limits for Underinsured Motorist Coverage, as stated in the Policy Declarations, are to ‘be reduced by any amounts paid or payable under the Medical Payments coverage in the policy.’
“10. That Nationwide has paid to [McKinney] or his physicians $2,000.00 under the medical payment coverage of the insurance policy, which constitutes the full policy limits for that coverage.
“11. That [McKinney] disputes Nationwide’s right to deduct any payments made under its medical payments coverage from any amounts due under the underinsured motorist coverage.
“12. That [McKinney] contends that allowing the offset would result in [McKinney] receiving less than the minimum $20,000.00 in underinsured motorist coverage provided by his insurance policy with Nationwide and as required by law. Nationwide’s contention is that even by allowing the offset, [McKinney] still receives the minimum limit of $20,000.00, but that [McKinney] cannot recover under two provisions of the policy.
“13. That Nationwide claims it has a right to deduct the payments made under its medical payments coverage from any amounts due under the underin-sured motorist coverage provided by the policy.”

The trial court entered an order granting Nationwide’s motion for a summary judgment, stating, in pertinent part:

“After reviewing the joint stipulation of facts, and the contentions of the parties, this Court hereby finds as a matter of law that Nationwide is entitled to a judgment. The Court finds, as a matter of law, that the offset provision in the insurance policy is clear and unambiguous. The Court further finds that, because the policy language is clear and unambiguous, it must be enforced as written. The Court thus holds that Nationwide is entitled to deduct the amounts paid under the medical payments coverage afforded by the policy from any amounts owed and paid under the uninsured or underinsured motorist coverage provided by the insurance policy. The Court thus ORDERS, ADJUDGES and DECREES that defendant Nationwide is entitled to offset the uninsured and/or underinsured motorist payment by the amount previously paid under the medical payments coverage provided by the insurance policy.
“The Court notes that [McKinney] has asserted a separate bad faith claim. The court finds that claim need not be resolved at this time. However, all other claims of [McKinney] relate solely to the enforceability of the offset provision. The court finds that there is no just reason for delay in the entry of a summary judgment on those claims. Therefore, it is ORDERED, ADJUDGED AND DECREED that the aforementioned ruling on the enforceability of the offset provision is hereby made a final judgment pursuant to Rule 54(b) of the Alabama Rules of Civil Procedure.”

McKinney appeals from the summary judgment in favor Nationwide.

II. Standard of Review

Our standard of review is straightforward when, as here the facts are undisputed:

“An order granting or denying a summary judgment is reviewed de novo, applying the same standard as the trial court applied. American Gen. Life & Accident Ins. Co. v. Underwood, 886 So.2d 807, 811 (Ala.2004). In addition, ‘[t]his court reviews de novo a trial court’s interpretation of a statute, because only a question of law is presented.’ Scott Bridge Co. v. Wright, 883 So.2d 1221, 1223 (Ala.2003). Where, as here, the facts of a case are essentially undisputed, this Court must determine whether the trial court misapplied the law to the undisputed facts, applying a de novo standard of review. Carter v. City of Haleyville, 669 So.2d 812, 815 (Ala.1995). Here, in reviewing the [entry] of a summary judgment when the facts are undisputed, we review de novo the trial court’s interpretation of statutory language and our previous caselaw on a controlling question of law.”

Continental Nat’l Indem. Co. v. Fields, 926 So.2d 1038, 1084-35 (Ala.2005).

III. Analysis

This will not be the first time Alabama courts have addressed the issue whether a specific provision in a UM policy providing for a setoff of medical payments should be honored. In Employers National Insurance Co. v. Parker, 286 Ala. 42, 236 So.2d 699 (1970), the insurer filed a declaratory-judgment action seeking a determination of its liability for UM benefits and contended — among other things — that the trial court erred in concluding that

“medical payment made to the insured under the ‘Expenses For Medical Services’ coverage of the policy ‘has no effect upon the uninsured motorist coverage.’ The argument is made that the insurer will be compelled to pay the insured twice for the same expenses, since medical expenses would be included in the recovery under the uninsured motorist coverage.”

286 Ala. at 48-49, 236 So.2d at 704.

The Parker Court noted, however, that the insurance policy in that case did not contain a provision for the setoff of the insurer’s medical payment against any payment otherwise owed by it under the UM clause of the policy. Specifically, the Court noted the insurer’s concession that

‘“[a]ll the cases that [it had] found [concerning this issue] relate to situations where either a statute or an express clause of the policy provides that medical payments once paid under the medical payment provision may be thus deducted in considering the uninsured motorist provision. These cases are shown in the annotation of 24 A.L.R.3d at page 1356, et seq. There does not appear to be any provision in Policy 213003 which contains such an express provision.’ ”

286 Ala. at 49, 236 So.2d at 705 (quoting insurer’s brief). The Court concluded that because the policy in question “list[s] separate premiums for medical payments and uninsured motorist coverage,” and because the insurer “failed to insert in its policy any provision relating its respective obligations under these two independent covenants, [the insurer] cannot now be heard to complain if it is held to both promises.” Id. Thus, the Parker Court indicated that a clause allowing a setoff of medical payments within a UM policy would not violate the uninsured-motorist statute, § 32-7-23, Ala.Code 1975 (“the UM Act”).

Relying on Parker, the Court of Civil Appeals reached the same conclusion in Russell v. Griffin, 423 So.2d 901 (Ala.Civ.App.1982). Russell concerned the issue “whether an insured can collect from its insurer under the uninsured motorist provision of an insurance policy and, at the same time, collect from the same insurer under the medical payments provision of the same policy.” 423 So.2d at 902. Similar to McKinney, the insured in Russell contended that “she [was] entitled to recover actual damages against the uninsured motorist which should have included her medical expenses.” 423 So.2d at 903. As in Parker, “the insurance policy in question [did] not contain a provision for offsetting or deducting payments made to an insured under the medical payments provision from any payments to be made to the insured under the uninsured motorist provision.” 423 So.2d at 904. The Court of Civil Appeals reasoned:

“[A]s stated in Parker, a specific provision allowing an offset of medical payments against a recovery under the uninsured motorist provision is necessary to prevent a so-called double recovery in the instant case....
“In the absence of such a provision in the insurance policy in question, [the insured] is entitled to recover all of her damages, including medical expenses, from the uninsured tort-feasor, Griffin, and thus against [the insurer] under the uninsured motorist provision of its policy up to the policy limit.

423 So.2d at 904.

In Griffin v. Battles, 656 So.2d 1221 (Ala.Civ.App.1995), the Court of Civil Appeals addressed the viability of setoff provisions in a UM policy under a different set of circumstances. In Griffin, Mary Simon Griffin sued Dwayne Battles, an uninsured motorist, alleging that she had been involved in an automobile accident; that Battles had negligently or wantonly caused the accident; and that as a result of the accident, Griffin had suffered personal injury and sustained property damage to her automobile. The record disclosed that Griffin had received $20,500 from her insurance company, pursuant to her UM coverage, and that this information was provided to the jury during trial. The jury found for Griffin and against Battles and awarded Griffin damages of $11,105.

Battles filed a motion for a setoff, arguing that because Griffin had received $20,500 from her insurance company, he should be allowed a setoff for that amount, and, therefore, should be relieved of paying the judgment against him. The trial court granted Battles’s motion for a setoff and ordered that the. judgment be marked satisfied. Griffin filed a postjudgment motion objecting to the trial court’s ruling, but the trial court denied her motion.

On appeal, the Court of Civil Appeals concluded that the trial court’s allowance of a beneficial setoff to Battles was due to be reversed. Relying on Parker and Russell, the Court of Civil Appeals reasoned:

“An insurance company may be al-loived to set-off damages when the policy contains express set-off provisions in its coverage for separate types of claims, e.g., medical payments coverage and uninsured motorist coverage .... In other words, while set-off may be claimed by Griffin’s insurer by virtue of an express provision in its policy, that set-off is not available to Battles, the tort-feasor, and the trial court erred in allowing Battles the benefit of an insurance set-off available only by an express reservation.”

656 So.2d at 1224-25 (citing Parker and Russell (emphasis added)).

Although it is true that “ § 32-7-23 does not provide for setoffs[, by] the same reasoning, ... § 32-7-23 does not preclude setoffs.” Guess v. Allstate Ins. Co., 717 So.2d 389, 390 (Ala.Civ.App.1998). The conclusion this Court reached in Parker, and that the Court of Civil Appeals restated in Russell and Griffin, therefore, is not in conflict with the express terms of the statute. We note, however, as does McKinney in his brief to this Court, that in none of these three cases did the court actually enter a judgment allowing the requested setoff. Moreover, the concern presented here, which was not addressed in the aforesaid cases, is whether the public policy underlying the UM Act would be violated by the enforcement of a setoff provision when the insured has contracted for only the statutory minimum UM coverage. We hold today that enforcement of a setoff provision in this circumstance violates that policy when it would prevent the insured from recovering the damages he or she is “legally entitled to recover” under the UM Act.

Unlike the parties in Russell and Griffin, McKinney and Nationwide agreed upon a contract of insurance that does include an express setoff provision. The provision in McKinney’s UM policy states that “[djamages payable will be reduced by any amount paid or payable under ... the Medical Payments coverage in this policy.” The language is clear and unambiguous and can be literally interpreted to mean that the amount paid to McKinney for UM benefits will be reduced by all sums paid to McKinney under the medical-payments portion of the policy. It is well settled that “insurance contracts are subject to the same general rules applicable to other written contracts.... If the policy is clear and unambiguous in its terms, then there is no question of interpretation or construction.” American & Foreign Ins. Co. v. Tee Jays Mfg. Co., 699 So.2d 1226, 1228 (Ala.1997).

As both parties agree, however, the controlling question before the Court in this case is whether the above-quoted contractual provision, clear and unambiguous though it may be, is made invalid or unenforceable by the public policy embodied in the UM Act.

The UM Act provides, in pertinent part:

“(a) 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 82-7-6, 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....
“(b) The term ‘uninsured motor vehicle’ shall include, but is not limited to, motor vehicles with respect to which:
“(4) The sum of the limits of liability under all bodily injury liability bonds and insurance policies available to an injured person after an accident is less than the damages which the injured person is legally entitled to recover.”

(Emphasis added.) At the time applicable here, our motor-vehicle-liability statutes set the required limits for UM coverage at a minimum of $20,000 per person, unless the coverage was specifically rejected in writing by the named insured.

In LeFevre v. Westberry, 590 So.2d 154 (Ala.1991), the Court reviewed the adoption of the UM Act:

“In 1966, the Alabama Legislature joined a growing number of states in enacting legislation mandating that insurers offer uninsured motorist coverage to persons insured under automobile liability policies issued by the insurer. 1965 Ala. Acts 866 (codified at Ala.Code 1975, § 32-7-23). The policy of compensation underlying the statute was ‘to provide financial recompense to innocent persons who are injured and to dependents of those who are killed because of the wrongful conduct of uninsured motorists.’ ”

590 So.2d at 156 (citation omitted; emphasis added). The UM Act requires that, to be entitled to UM benefits, the insured be “legally entitled to recover” damages from the owner or operator of the uninsured vehicle. As the LeFevre Court further explained:

“Uninsured motorist coverage in Alabama is a hybrid in that it blends the features of both first-party and third-party coverage. The first-party aspect is evident in that the insured makes a claim under his own contract. At the same time, however, third-party liability principles also are operating in that the coverage requires the insured to be ⅞-gally entitled’ to collect — that is, the insured must be able to establish fault on the part of the uninsured motorist and must be able to prove the extent of the damages to which he or she would be entitled.”

590 So.2d at 159 (emphasis added).

Among the cases relied upon by McKinney in his brief to this Court is State Farm Mutual Automobile Insurance Co. v. Cahoon, 287 Ala. 462, 252 So.2d 619 (1971), in which the Court considered the question whether the liability insurer of an injured party could reduce UM coverage benefits otherwise owed to its insured by the amount of workers’ compensation benefits payable to the insured by his employer. The Court observed:

“[In Safeco Insurance Co. of America v. Jones, 286 Ala. 606, 243 So.2d 736 (1970),] we considered the validity of a provision of virtually the same import as that set out above.' We held that ... an insurer cannot avoid the liability imposed by our Uninsured Motorist Act by inserting into a policy a liability limiting clause restricting an insured from recovering actual damages suffered, within the limits of a policy, where premiums have been paid for such uninsured motorist coverage, even though an insured has other similar insurance available to him.”

287 Ala. at 465, 252 So.2d at 621 (emphasis added). The Cahoon Court then quoted from Safeco as follows:

“‘We hold that our statute sets the minimum amount for recovery, but it does not place a limit on the total amount of recovery so long as that amount does not exceed the amount of actual loss; that where the loss exceeds the limit of one policy, the insured may proceed under other available policies; and that where the premiums have been paid for uninsured motorist coverage, we cannot permit an insurer to avoid its statutorily imposed liability by its insertion into the policy of a liability limiting clause which restricts the insured from receiving that coverage for which the premium has been paid.’ ”

287 Ala. at 465, 252 So.2d at 621 (quoting Safeco Ins. Co. of America v. Jones, 286 Ala. 606, 614, 243 So.2d 736, 742 (1970) (emphasis added)).

Consistent with the above-emphasized passages regarding the statutory purpose of providing UM coverage up to the amount of actual damages suffered by the injured party, this Court noted in Criterion Insurance Co. v. Anderson, 347 So.2d 384, 387 (Ala.1977):

“[T]he legislative purpose behind the uninsured motorist statute was to put the insured in the same position he would have been in if the tortfeasor had been a liability insurance policyholder.
“Our own Court of Civil Appeals held in Higgins v. Nationwide Mutual Insurance Co., 50 Ala.App. 691, 695, 282 So.2d 295, 300 (1973), aff'd Higgins [291 Ala. 462, 282 So.2d 301 (1973) ]:
“ ‘... it appears to us from the plain and unambiguous wording of the statute, that it is the basic purpose of the [UM] Act, and thus the public policy of the State as to this matter, that Alabama citizens pm-chasing automobile liability insurance be able to obtain for an additional premium the same protection against injury or death at the hands of an uninsured motorist as they would have had if that motorist had, obtained for himself the minimum liability coverage required by the Safety Responsibility Act ....’”

(Some emphasis added.)

With the foregoing principles in mind, we turn now to a consideration of the opinion of the Court of Civil Appeals in Alabama Farm Bureau Mutual Casualty Insurance Co. v. Humphrey, 54 Ala.App. 343, 308 So.2d 255 (Ala.Civ.App.1975). Humphrey addressed the issue of a medical-setoff provision in more detail than did the three cases discussed at the outset of this analysis — Parker, Russell, and Griffin:

“In [Alabama Farm Bureau Casualty Insurance Company v.] Clem, [49 Ala. App. 457, 273 So.2d 218 (Ala.Civ.App. 1973),] we pointed out that the Alabama uninsured motorist statute contained no provision as to rights of subrogation, as do the statutes in some other states. We further pointed out the principle enunciated by our Supreme Court in other cases. That principle is, the uninsured motorist statute is to be construed so as to assure a person injured by an uninsured motorist that he will be able to recover, from whatever source available, up to the total amount of his damages. The insurer will not be permitted to insert any provision in its policy limiting such recovery by the insured. Safeco Ins. Co. of America v. Jones, 286 Ala. 606, 243 So.2d 736 [ (1970) ]; State Farm Mutual Auto. Ins. Co. v. Cahoon, 287 Ala. 462, 252 So.2d 619 [ (1971) ]; Employers Liability Assurance Corp., Ltd. v. Jackson, 289 Ala. 673, 270 So.2d 806 [ (1974) ]; Great Central Insurance Co. v. Edge, [292] Ala. [613], 298 So.2d 607 [ (1974) ].”

54 Ala.App. at 346, 308 So.2d at 257. The court then reasoned that a subrogation clause in the policy at issue, “when applied to settlement with or recovery from tort-feasors other than the uninsured motorist is invalid and contrary to the intent of the uninsured motorist statute.” 54 Ala.App. at 346-47, 308 So.2d at 257-58. Nonetheless, the court pointed out, “an insured may not recover if he has been fully compensated for his damages by any tort-feasor.” 54 Ala.App. at 347, 308 So.2d at 258.

The Humphrey court then proceeded to consider whether a payment to the insured under a medical-benefits clause could be set off against the amount otherwise owed by the insurer under the UM provision of the policy in a case in which (a) the only damages the insured was “legally entitled to recover” from the tortfeasor were punitive damages, given that the claim asserted was a wrongful-death claim and (b) the jury had set those damages at $26,500, an amount less than the total of the $17,500 the insured already had received in a pro tanto settlement (with a tortfeasor other than the uninsured motorist) and the insured’s $10,000 UM coverage. Because the insured’s medical expenses could not have been part of the damages to which the jury had determined the insured to be “legally entitled,” the court ultimately concluded that allowing a setoff of the medical benefits paid by the insurer would be improper. It first explained that, as a general rule, the ability to recover both medical benefits and UM benefits depends on the amount of the actual damages the insured is entitled to recover:

“The medical payment coverage and the uninsured motorist coverage are separate in the policy. Each requires a payment of premium. It seems that if actual damages of the policyholder exceed[] the maximum of the uninsured motorist coverage, the insured has access to the medical payments coverage, if available under the facts. If actual damages are paid. within the uninsured motorist coverage, there is no right to payment under the medical payment coverage. Defendant appears to agree with this view in its argument in brief.
“In this case, an action for wrongful death, actual damages were determined to be $26,500.00, $9,000.00 of which was due from defendant. Such damages were punitive and did not include medical expenses covered by the medical payment provision of the policy. To allow set-off of medical payment in this case would limit the right of recovery of actual damages under the uninsured motorist coverage. Such is contrary to the principle stated by Safeco v. Jones, supra, Clem, supra, and other cases cited hereinabove.”

54 Ala.App. at 347, 308 So.2d at 258 (emphasis added).

Thus, despite the fact that the total damages to which the insured was “legally entitled” did not exceed the combined amount of the insured’s recovery from one of the tortfeasors and the additional amount of the UM benefits to be paid to the insured, the particular nature of the damages at issue meant that the Humphrey court’s decision not to enforce the medical-benefit setoff (a) did not violate the above-stated principles regarding placing the insured in the same, but no better, position than if the uninsured tortfeasor against whom the judgment was entered had been insured at the statutory minimum and (b) actually was necessary to afford to the insured the full application of its UM coverage to the damages the insured was legally entitled to recover, as determined in that judgment.

The present case differs from Humphrey in two respects: On the one hand, this is not a wrongful-death case; the expenses covered by the medical-benefit clause also are part of the damages the insured is “legally entitled to recover.” They therefore fall within the UM coverage and logically must be considered if the objective is to put the insured in the same, but no better, position than if the tortfea-sor had held the minimum coverage required by the UM Act. On the other hand, we know from the parties’ stipulations enough about the amount of the damages the insured is legally entitled to recover to know that those damages do in fact exceed the total of what the insured already has recovered from the tortfeasor and the amount of coverage available under the UM provision. Because we know this, we can conclude that the trial court erred in allowing a full setoff of the medical benefits payment against the UM coverage.

Nonetheless, as noted, the expenses covered by the medical-benefit clause are part of the damages the insured is “legally entitled to recover” and, therefore, unlike in Humphrey, logically must be considered if the objective is to put the insured in the same, but no better, position than if the tortfeasor had been a minimum-liability-insurance policyholder. What we do not know in this respect is whether the total amount of the damages the insured is legally entitled to recover exceeds the combined total of the amount already recovered by McKinney from the tortfeasor and from the insurer under the medical-benefits clause, and the amount of UM coverage available under the policy. If they do, then no setoff is appropriate. To the extent they fall short of this amount, enforcement of the contractually agreed upon set-off at issue would not conflict with the purpose sought to be achieved by our legislature in prescribing certain minimum amounts of UM coverage that by law must be available to “recompense” an insured his or her actual damages, but no more.

Our understanding of the legislature’s intent in enacting the UM Act is in line with the understanding of courts in other states as to the intent of their legislatures in enacting comparable, if not identical, UM statutes. In Melson v. Illinois National Insurance Co., 1 Ill.App.3d 1025, 274 N.E.2d 664 (1971), the Illinois court not only addressed the law in its own state, but also explained the holdings of courts in three other states — Louisiana, New York and North Dakota:

“Although no decision involving the interpretation of the provision has been cited, our research has revealed three cases interpreting the identical provision appearing in plaintiffs policy. See, Taylor v. State Farm Mutual Automobile Ins. Co., 237 So.2d 690 (La.App.1970); Hutchison v. Hartford Accident & Indemnity Co., 34 A.D.2d 1010, 312 N.Y.S.2d 789 (1970); Wittig v. United Services Automobile Association, 300 F.Supp. 679 (N.D.Ind.1969). These cases based their interpretations upon the rationale that:
“ ‘... (the medical payment crediting provision is) designed only to protect the insurance company from double exposure for medical payments. Thus it prevents an insured whose medical expenses have been paid under the Medical Payments Coverage from collecting for those medical expenses once again....’ (Taylor v. State Farm Mutual Automobile Ins. Co., supra, 237 So.2d at 693).
“The defendant in the case at bar does not disagree with this rationale since it has admitted that the provision is designed so that ‘medical expenses as an item of damages for bodily injury shall not be paid twice by the insurance company.’
“The defendant has admitted that the plaintiffs damages are in excess of $12,000.00 and the trial judge found his damages to be greatly in excess of that amount. Since the plaintiff has been compensated for $2,000.00 of medical expenses he still has remaining a minimum of $10,000.00 in damages which have not been paid as medical expenses and are not payable as such since he has already exhausted his medical payment coverage. Therefore, regardless if the remaining $10,000.00 of his admitted damages is regarded as medical expenses, lost wages, damages for pain, suffering or for permanent disability, it is clear that double payment will not occur if the limit of uninsured motorists coverage is paid.
“It follows that double payment can exist, and that therefore the deduction provision applies, only if the total amount of proven or undisputed damages does not exceed the total of uninsured motorists coverage and medical expense coverage. Indeed, this is the interpretation which Taylor, Wittig and Hutchison have all placed upon the provision.
“We hold that where the total proven or undisputed damages incurred by the insured are greater than the combined total of uninsured motorist and medical coverage, the crediting provision cannot apply. Since the defendant admits that the plaintiffs damages are in excess of $12,000.00 we affirm the summary judgment in the amount of $10,000.00.”

1 Ill.App.3d at 1027-28, 274 N.E.2d at 666 (emphasis added).

In State Farm Mutual Automobile Insurance Co. v. Harper, 125 Ga.App. 696, 188 S.E.2d 813 (1972), the Court of Appeals of Georgia also expressly differentiated between the enforceability of a provision for the setoff of medical-benefits payments when the insured’s total damages exceed the amounts it could recover under its UM and medical coverage and when it does not, distinguishing an earlier case that fell in the former category:

“In this case the trial judge did not give credit for the $1,000 the defendant paid each plaintiff under the provisions for medical payment but only credited the two payments made under the uninsured motorist provision totaling $18,000. As a result the principal amount of the judgment was $14,500 allowing the plaintiffs to recover $34,500 on the two policies when their judgment on which recovery was predicated totaled $32,500. The policies contain language providing that the amount payable as uninsured motorists coverage be reduced by any sums paid under medical coverage.
“In Phillips v. State Farm Mut. Auto. Ins. Co., [437 F.2d 365 (5th Cir.1971) ], the federal court held that sums paid under medical provisions of a policy could not serve to reduce the amount owed as uninsured motorist coverage. In that case plaintiff had damages in excess of the $10,000 coverage for uninsured motorists. We think the result there reached was correct.
“However, this is not the situation in the instant case. Here under the two policies, the plaintiffs were able to recover the full amounts for their claims, to wit, $12,500 and $20,000 respectively....
“Insofar as the judgment herein entered allowed the plaintiff recovery in excess of the actual damages, it is error and must be reversed.”

125 Ga.App. at 699-700, 188 S.E.2d at 816-17. See also Lemrick v. Grinnell Mut. Reinsurance Co., 263 N.W.2d 714 (Iowa 1978) (disallowing a setoff because the total proven or undisputed damages incurred by the insured were greater than the combined total of UM and medical coverage and quoting with approval from Melson, 1 Ill.App.3d at 1028, 274 N.E.2d at 666); Lyon v. Hartford, Acc. & Indem. Co., 25 Utah 2d 311, 317, 480 P.2d 739, 744 (1971) (“In the instant action, plaintiffs damages exceeded the policy limits under the uninsured motorist coverage, and Hartford was not subject to double exposure for plaintiffs medical expenses. Under such circumstances, Hartford was not entitled to offset the medical payments against the uninsured motorist coverage.”) (overruled on other grounds by Beck v. Farmers Ins. Exchange, 701 P.2d 795 (Utah 1985)); Tolson v. Allstate Ins. Co., 108 Wash.App. 495, 32 P.3d 289 (2001).

Based on the foregoing, we conclude that where an insured has contracted only for the statutory minimum UM coverage and the total damages the insured is legally entitled to recover exceed the total of any payment by the tortfeasor’s insurer, the insured’s UM coverage, and any medical benefit also paid by the liability insurer to the insured, a policy provision allowing the insurer to set off any medical-benefit payments against the UM coverage is unenforceable as a matter of public policy. Accordingly, the judgment of the trial court is reversed. This cause is remanded to that court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

STUART, SMITH, BOLIN, PARKER, and SHAW, JJ., concur.

COBB, C.J., and LYONS and WOODALL, JJ., concur in the result.

WOODALL, Justice

(concurring in the result).

The minimum limit of uninsured-motorist (“UM”) coverage required by § 32-7-23, Ala.Code 1975, at the time of McKinney’s accident, was $20,000, and that is the amount of James McKinney’s coverage. McKinney and his insurer, Nationwide Mutual Fire Insurance Company, agree that McKinney is legally entitled to recover at least $45,000 from the tortfeasor, and that McKinney has already received $25,000, the limit of the tortfeasor’s liability coverage. Consequently, McKinney is entitled to recover the full amount of the UM coverage afforded by his policy.

Nationwide argues that McKinney’s recovery under the UM coverage must be reduced by the $2,000 it paid him under his medical-payments coverage. However, § 32-7-23 “sets a minimum amount for recovery, ... and ... where the premiums have been paid for [UM] coverage, we cannot permit an insurer to avoid its statutorily imposed liability by its insertion into the policy of a liability limiting clause which restricts the insured from receiving that coverage for which the premium has been paid.” Safeco Ins. Co. of America v. Jones, 286 Ala. 606, 614, 243 So.2d 736, 742 (1970) (emphasis added). In other words, “an insurer cannot avoid the liability imposed by our Uninsured Motorist Act by inserting into a policy a liability limiting clause restricting an insured from recovering actual damages suffered, within the limits of the policy, where premiums have been paid for [UM] coverage, even though an insured has other similar insurance available to him.” State Farm Mut. Auto. Ins. Co. v. Cahoon, 287 Ala. 462, 466, 252 So.2d 619, 621 (1971) (emphasis added). See also Preferred Risk Mut. Ins. Co. v. Holmes, 287 Ala. 251, 251 So.2d 213 (1971). Thus, it is “rather firmly established ... that the law of this state with respect to [UM] coverage precludes an insurer from collecting a premium for certain coverage, then taking that coverage away by a limiting clause, under the rationale that a contrary holding would be in violation of the [UM] statute.” Great Central Ins. Co. v. Edge, 292 Ala. 613, 616, 298 So.2d 607, 609 (1974).

Recent cases make it clear that policy terms that are more restrictive than § 32-7-23 are void as against public policy and, thus, unenforceable. See, e.g., Walker v. GuideOne Speciality Mut. Ins. Co., 834 So.2d 769, 772 (Ala.2002). Consequently, Nationwide may not reduce the amount it owes McKinney under his UM coverage by the amount it paid to him under the separate medical-payments coverage.

For these reasons, I concur only in the result.

COBB, C.J., and LYONS, J., concur.

      . As defined in McKinney's policy, and as used in this opinion, the terms "UM,” "uninsured motorist” and "uninsured motor vehicle” refer to both uninsured and underin-sured motorists and motor vehicles. This is also consistent with the statutory provision addressing underinsured-motorist coverage. See note infra 4.

      . In yet another case, Alabama Farm Bureau Mutual Casualty Insurance Co. v. Humphrey, 54 Ala.App. 343, 308 So.2d 255 (Ala.Civ.App.1975), the Court of Civil Appeals addressed the issue of a medical-benefits setoff provision in even more depth. Humphrey is discussed infra.

      . In essence, the parties have contracted for the inclusion in the policy of a medical benefit that is payable to cover incurred medical expenses without awaiting a determination whether the tortfeasor is uninsured and without awaiting a determination of the final amount the insured is “legally entitled to recover" from the tortfeasor. Also, benefits received under the medical-benefit clause may be retained even if it ultimately is determined that the tortfeasor is not uninsured.

      .As the Court of Civil Appeals explained in Guess v. Allstate, 717 So.2d at 390:
      “In 1984 our legislature amended the term 'uninsured motor vehicle’ to include ‘underinsured’ motor vehicle. See § 32-7-23(b)(4). Underinsured motorist coverage applies ‘where the negligent or wanton tort-feasor has some liability insurance but does not have enough to fully compensate the victims of his negligence or wantonness.’
        Hardy v. Progressive Ins. Co., 531 So.2d 885, 887 (Ala.1988).”
      (Emphasis added.)

      . Section 32-7-23 sets the required dollar amounts of coverage by reference to § 37-2-6(c), which at the time of McKinney’s accident set the minimum coverage at $20,000; § 37-2-6(c) was amended in 2008 to provide for coverage of "not less than twenty-five thousand dollars ($25,000) because of bodily injury to or death to one person in any one accident.” Act No. 2008-393, § 1, Ala. Acts 2008.

      . In the setoff cases of LeFevre, Cahoon, and Safeco discussed above, the total damages suffered by the insured exceeded the combined total of the UM coverage and the coverage for which the insurer sought a setoff.