Alabama Legal Update February 2015


Travelers Home and Marine Insurance Company v. Dianne Gray and Martin Gray

UM carrier not liable for damages assessed in default judgment filed against tortfeasor.

In Gray, plaintiffs Dianne and Martin Gray filed an action against Lawana Coker and Travelers Insurance following a motor vehicle accident involving Dianne and Coker. Dianne asserted negligent and wanton conduct against Coker. She further claimed that she was entitled to uninsured-motorist benefits from Travelers, her motor-vehicle insurer. Finally, Martin alleged a claim of loss of consortium. Travelers answered the complaint, denying the material allegations. Coker failed to answer the complaint and the Grays moved for default judgment against Coker, requesting $500,000 for Dianne and $50,000 for Martin, which was supported by an affidavit. The motion requested no relief as to Travelers. The trial court entered a default judgment in favor of the Grays and against Coker for the amounts requested.

Subsequently, the Grays filed a motion for summary judgment against Travelers based solely on the previously obtained default judgment against Coker. The Grays argued that they were entitled to judgment as a matter of law because Travelers had notice and adequate opportunity to intervene and present any defenses and arguments necessary to protect its position with respect to the entry of or the amount of damages in the default judgment. The trial court granted the motion and Travelers appealed. On appeal, the Court cited Bailey v. Progressive Specialty Insurance Co., 72 So. 3d 587 (Ala. 2011) for the premise that: “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.”

In reversing the trial Court’s granting of summary judgment in favor of the Grays, the Alabama Supreme Court held: “Bailey stands for the proposition that, when a UM carrier has elected to participate in a lawsuit against both it and a third-party tortfeasor, the taking of a default judgment against the third-party tortfeasor only simply is not binding on the UM carrier.” The Court found that Travelers was not bound by the default judgment entered against Coker and was thus not required to submit evidence in opposition to a motion for a summary judgment relying solely on the default judgment.

Read the full decision.



Fulghum Fibres, Inc., and Alphonso Gross v. C. Dwayne Stokes and Frisco Forest Products, LLC

The Alabama Court of Civil Appeals finds that the failure to include a signature on a Notice of Consent amounted to the denial of a motion for new trial and ultimate dismissal of case.

In Fulghum, Plaintiff employee asserted a claim against his former employer, Frisco, under the Alabama Workers’ Compensation Act. Plaintiff subsequently amended his complaint to add claims of negligence and wantonness against a number of third parties, including Fulghum, Gross, Stanford, Madden, Maxwell, and Straiton. Summary judgment was entered in favor of Stanford, Madden, Maxwell, and Straiton, but the trial court did not direct the entry of a final judgment pursuant to Rule 54(b), Ala. R. Civ. P., as to that summary judgment. The case proceeded to trial against Fulghum and Gross. The jury found in favor of the plaintiff against defendant Fulghum in the amount of $65,000. The plaintiff subsequently filed a motion for new trial as to the negligence claims contending that the jury had returned no verdict as to Gross’s liability and, alternatively, if the verdict was interpreted as a verdict in Gross’s favor, same was inherently inconsistent. The court entered an order granting a new trial.

Thereafter the trial court judge left office and the case was assigned to another judge. Gross and Fulghum filed a motion to vacate the order granting a new trial and for the entry of a final judgment which was granted on September 17, 2013. The Court’s order directed the immediate entry of a final judgment as to those rulings pursuant to Rule 54(b). On October 17, 2013, thirty (30) days after the entry of the September 17, 2013 judgment, the plaintiff moved for a new trial pursuant to Rule 59(a). Rule 59.1, Ala. R. Civ. P., provides in part: “No postjudgment motion filed pursuant to Rules 50, 52, 55, or 59 shall remain pending in the trial court for more than ninety (90) days, unless with the express consent of all the parties, which consent shall appear of record.”

The Rule 59(a) motion sat pending until, on the 90th day, the parties filed a notice of consent to an extension of time for the Court to rule. However, the notice was not signed by all parties as Gross’s counsel’s signature was not included in same. On February 3, 2014, an order granting the Rule 59 motion and ordering a new trial was entered.

Emphasizing the failure to include Gross’ counsel’s signature on the Notice, the Alabama Court of Civil Appeals found that “the employee’s postjudgment motion was denied by operation of law on January 15, 2014.” Thus, the February 3, 2014 order and the subsequent appeals were ineffective. Thus, the Court dismissed the case in its entirety.

 Read the full decision.