Alabama Appellate Opinions
We are committed to sharing decisions and providing legal updates that may be beneficial to you and your teams. Included below are summaries of cases recently released by Alabama Appellate Courts. Please reach out to any member of our Appellate Practice  group with any questions.

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Team Huie

Alabama Appellate Opinions Release Dates:
October 25, 2019
November 8, 2019
Huie Case of Note: Congratulations to Stewart McCloud and De Martenson for their successful appeal to the Alabama Supreme Court. See featured case below, Ex parte Allstate Insurance Company.
Alabama Supreme Court
Court Finds “Events or Omissions” in § 6-3-7 to Refer to Alleged Wrongdoing Rather Than Injury

Ex parte Allstate Insurance Company (In re: Devin Anthony Harrison v. Allstate Insurance Company and Thomas Michael Hobson)

This case originated from a single-car accident in Perry County, involving a vehicle owned by Thomas Hobson, a resident of Bibb County, and driven by Devin Anthony Harrison. One of the passengers in the vehicle, Dylan Gardner, was killed in the crash. Gardner’s estate brought a wrongful death action against Harrison. This case involves Harrison’s breach of contract and bad faith claims against Allstate for allegedly refusing to defend or indemnify Harrison in the underlying wrongful death case. At the conclusion of trial, the jury returned a verdict against Harrison in the amount of $2,000,000. Harrison subsequently filed the present lawsuit, alleging that Allstate insured the vehicle involved in the accident, that he was a permissive user covered by the policy, and that Allstate breached its contractual duty to defend and indemnify Harrison in the underlying wrongful death action.

Allstate filed a motion for a change of venue to Shelby County or Bibb County and filed an affidavit in support of that motion testifying that a substantial amount of the investigation, decision-making and handling of the claim occurred at Allstate’s office in Shelby County. Harrison responded claiming that because the car crash was the event giving rise to the action, venue was proper in Perry County – where the crash happened. The trial court denied the motion to change venue and Allstate filed a petition for writ of mandamus.

Alabama code § 6-3-7 specifies that venue is proper in the county where the events or omissions giving rise to the claim occurred. The Court held that the “events or omissions” referenced in § 6-3-7 are the alleged wrongful acts of a defendant, rather than the injuries suffered as a result of a wrongful act. In this case, the Court found that sworn affidavits filed by Allstate showed that venue was proper in Shelby or Bibb County, but not Perry County, shifting the burden to Harrison to prove that the injury – Allstate’s alleged breach of contract – had occurred in Perry County, which he failed to do.
Court Finds Drug Manufacturers Are Not Liable Absent Manufacture of Injurious Drug 

Forest Laboratories, LLC v. Kevin J. Feheley, Sr.

This case involved the prescription of an anti-depressant drug shortly before a clinically depressed man committed murder-suicide. The man was prescribed Escitalopram, the generic of Lexapro one day before he killed himself and his wife. This suit was brought against Forest Pharmaceuticals ("Forest") based on its manufacture and marketing of Lexapro. Forest moved for summary judgment claiming that Alabama Code § 6-5-530, Alabama’s “manufacturer indemnity" statute, exempted it from suit since it did not manufacture the drug that allegedly caused the Plaintiff’s injury. The trial court denied summary judgment but allowed an interlocutory appeal.

The Court reversed, specifically holding that § 6-5-530 requires plaintiffs to identify the defendant being sued as the manufacturer of the product that injured them. Absent such identification, the Defendant cannot be held liable. This decision was precipitated by the Alabama Supreme Court’s decision in Wyeth, Inc. v. Weeks , 159 So.3d 649 (Ala. 2015), in which it held that drug manufacturers could be held liable for fraud or misrepresentation, even if they had not manufactured the drug that allegedly caused injury. Following that decision, the Alabama legislature amended § 6-5-530 to exempt drug manufacturers from liability unless their drug has been identified as causing the Plaintiff’s injury. The Court, finding that the Weeks decision had been abrogated by § 6-5-530, reversed the trial court’s summary judgment order.
Psychotherapist Privilege Does Not Preclude Discovery of Employment Records 

Ex Parte D.P.T. 

In this case, the Plaintiff refused to sign authorizations for his employment records to be released. He claimed his military employment records would include some medical records he contended were protected from discovery based on the psychotherapist-patient privilege. The motion to compel filed by the Defendant asked that all employment records be released, which would have included medical records created by the military during the Plaintiff’s military service. However, the Defendant delivered a copy of the standard form used for military employment records to the Plaintiff. That form includes a section in which medical records may be requested, and in this case that section was left blank. The trial court granted the Defendant’s motion to compel and Plaintiff filed a writ of mandamus challenging the order.

The Court declined to issue the writ after finding the facts of the case did not implicate the psychotherapist-patient privilege. In its analysis, the Court pointed to the authorization form provided by the defendant, which did not include authorization to release medical records, as well as communications between Defendant’s counsel and Plaintiff’s counsel which showed that Defendant only sought employment records. The trial court also filed a brief in response to the mandamus petition, specifying that it only compelled Plaintiff to provide non-medical employment records. The Court denied the writ of mandamus noting that none of the records that were ordered to be produced would include privileged material.
Court Allows Plaintiff to Argue UIM Coverage Applied to Husband Driving a Covered Vehicle Without Permission

Misty Cowart v. GEICO Casualty Company

This case involved an accident in which Misty Cowart (“Cowart”) was struck by her husband who was driving a vehicle covered by their automobile insurance policy with GEICO. The accident happened after Cowart and her husband had been in an argument. The husband attempted to leave in their Jeep over Cowart’s objections. As he was leaving, the vehicle struck and ran over Cowart. After receiving partial compensation for her injuries, Cowart sought benefits under the uninsured motorist (UIM) coverage of GEICO policy to collect the remainder of her damages. GEICO moved for summary judgment arguing that insured vehicles are excepted from UIM coverage. Cowart argued that the policy included an exception for vehicles driven without permission. The trial court granted summary judgment.

The Court reversed, holding that the policy’s exception for a vehicle driven without permission raised a question of fact precluding summary judgment. The Court began the analysis by interpreting the insurance policy to allow UIM coverage to apply to a vehicle covered under the policy, if that vehicle was driven without the owner’s permission. While the UIM policy included an exception for an “insured auto”, the definition of that phrase did not include vehicles driven without the owner’s permission. Then the Court determined there was a question of fact as to whether the Jeep was marital property and whether Cowart had denied her husband permission to drive the vehicle. As to ownership, the Court reasoned there was a genuine issue of material fact as to whether the Jeep had been given to Cowart by her husband. The Court pointed to Cowart’s common use of the vehicle, Cowart’s regular payment of the vehicle’s payments, as well as testimony from Cowart that her husband had given her the Jeep. The Court also found that there was conflicting evidence from Cowart and her husband that created an issue of fact as to whether Cowart told her husband that he was not allowed to drive the vehicle on the day of the accident. Based on these facts, the Court reversed the trial court and remanded the case for further proceedings.
Alabama Court of Civil Appeals
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