Lowery v. Ward

662 So. 2d 224, 1995 WL 138462
CourtSupreme Court of Alabama
DecidedMay 19, 1995
Docket1940137
StatusPublished
Cited by9 cases

This text of 662 So. 2d 224 (Lowery v. Ward) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lowery v. Ward, 662 So. 2d 224, 1995 WL 138462 (Ala. 1995).

Opinion

662 So.2d 224 (1995)

Robin Bruce LOWERY and Reliable Tin Shop, Inc.
v.
Deborah Hopkins WARD and Bruce Ward.

1940137.

Supreme Court of Alabama.

March 31, 1995.
On Application for Rehearing May 19, 1995.

William W. Lawrence of Wooten, Thornton, Carpenter, O'Brien, Lazenby & Lawrence, Talladega, for Appellants.

Lloyd W. Gathings of Emond & Vines, Birmingham, and Jonathan W. Gathings, Moody, for Appellees.

HOUSTON, Justice.

The defendants, Robin Bruce Lowery and Reliable Tin Shop, Inc. ("Reliable"), appeal from a judgment entered on a $100,000 jury verdict in favor of the plaintiffs, Deborah Hopkins Ward and her husband, Bruce Ward, in this negligence action arising out of an automobile accident. We reverse and remand.

*225 The defendants argue that the trial court erred in allowing the plaintiffs to introduce evidence of, and to comment on, the fact that the defendants had liability insurance coverage through Alfa Insurance Company ("Alfa") and that Alfa had paid for the damage to the plaintiffs' automobile.[1] Specifically at issue are Ms. Ward's testimony concerning Alfa's payment and concerning two documents, which were admitted into evidence and commented on by the plaintiffs' attorney over the defendants' objection and motion for mistrial. The first of these documents was an acknowledgment by the plaintiffs of their receipt of a payment from Alfa for damage to their automobile:

"ADVANCE PAYMENT AGREEMENT (This is not a Release) "POLICYHOLDER Reliable Tin Shop CLAIM NO. A0990951 DRIVER Bruce Lowery ADJUSTER Arthur Young INJURED PARTY Deborah Ward "I/We hereby agree and understand that any [money] paid to or for me/us on behalf of Reliable Tin Shop & Bruce Lowery is to be deducted from the total amount of any final settlement or judgment in my/our favor for alleged damages resulting from an accident on "August 31, 1991 at I-20 near Leeds, Alabama. "Signed /s/ Deborah Ward Date 11-20-91 "Claimant "Signed /s/ Bruce Ward Date 11-20-91 "Spouse "SCHEDULE AND RECEIPT OF PAYMENTS "DATE AMOUNT RECEIVED RECEIPT ACKNOWLEDGED 10-16-91 5461.59 X___________________" The second document was a letter from an Alfa claims adjuster to the plaintiffs' attorney: "Dear [plaintiffs' attorney]: "Please find the attached draft for additional damage to your clients' vehicle. "Please advise as to the status of your client's B.I. claim. "Sincerely, "/s/ Arthur Young "Arthur Young "Claims Adjuster"

It has long been the general rule in Alabama that the admission of evidence or the making of comments indicating or suggesting to the jury that a civil defendant is indemnified in any degree or fashion by an insurance company is prejudicial and constitutes reversible error. See, e.g., Wiggins v. Perlman, 583 So.2d 269 (Ala.1991); Partridge v. Miller, 553 So.2d 585 (Ala.1989); Cook v. Anderson, 512 So.2d 1310 (Ala.1987); Robins Engineering, Inc. v. Cockrell, 354 So.2d 1 (Ala.1978); J. Colquitt, Alabama Law of Evidence, § 4.11 (1990); C. Gamble, McElroy's Alabama Evidence § 189.04(1) (1977). It is equally well settled that evidence of a defendant's offer to pay, or payment of, medical, repair, and similar expenses made in an attempt to compromise or to settle a claim, whether before or after litigation is commenced, is not evidence of an *226 admission of liability and is generally inadmissible. See, e.g., Georgia Casualty & Surety Co. v. White, 582 So.2d 487 (Ala.1991); Harris v. M & S Toyota, Inc., 575 So.2d 74 (Ala.1991); Kohn v. Johnson, 565 So.2d 165 (Ala.1990); Ocean Cruise Lines, Inc. v. Abeta Travel Service, Inc., 562 So.2d 205 (Ala. 1990); Super Valu Stores, Inc. v. Peterson, 506 So.2d 317 (Ala.1987); Colquitt, Alabama Law of Evidence, supra, §§ 4.8 and 4.9 ("The obvious purpose of the rule is to enable parties to provide assistance in the form of advanced payments to injured or damaged parties without that fact being construed as an admission of liability for additional damages."); McElroy's, supra, at § 188.01(1); 29 Am.Jur.2d Evidence § 624 (1967). However, a defendant's express and unqualified admission of responsibility is admissible, even if it is made during settlement negotiations, Kohn v. Johnson, supra, Hughes v. Daniel, 187 Ala. 41, 65 So. 518 (1914); McElroy's, at § 188.01(2), as is evidence that a defendant has liability insurance and that his insurer has paid expenses incurred by the plaintiff (medical, repair, lost wages, etc.), provided the evidence of the insurance and the payment is inextricable or inseparable from other evidence indicating that the defendant expressly admitted liability, so as to give rise to a reasonable inference that the defendant's insurer made the payment in light of that admission. See Cochran v. Watson, 628 So.2d 407 (Ala.1993); see, also, Crump v. Geer Brothers, Inc., 336 So.2d 1091 (Ala. 1976).

The plaintiffs contend that the rule applied in Cochran v. Watson controls under the facts of this case. They argue that Ms. Ward's testimony as to Alfa's payment of the property damage, as well as the two documents set out above, was admissible as evidence of an admission of liability by Alfa on the part of the defendants.

The defendants contend that neither they nor Alfa ever admitted liability for any damage or injury incurred by the plaintiffs as a result of the automobile accident. They argue that the documents in question contain no language indicating that they admitted liability, and they point to the fact that in their answer they denied liability and raised the affirmative defense of contributory negligence. The defendants maintain that this case is controlled by those well-established cases prohibiting the injection into a trial of the fact of liability insurance through the introduction of evidence of a partial payment made by a defendant's liability insurance carrier during the settlement process. We agree.

The record indicates that the trial court specifically relied on Cochran v. Watson as authority for admitting the evidence in question. In Cochran, the plaintiffs sued Ray Thomas Cochran and the City of Saraland for damages, contending that Cochran, a police officer for the city, had negligently or wantonly caused his police vehicle to collide with their vehicle. From a judgment entered on a jury verdict for the plaintiffs, the defendants appealed. This Court affirmed, stating:

"The City of Saraland and Cochran raise two issues on appeal. The first issue concerns the admissibility of evidence of certain payments made by the defendants' insurance company to Peggy Watson for medical costs incurred as a result of the accident. We find no error in admitting the evidence of these payments, for the following reasons.
"Ms. Watson contends that following the accident she was contacted by The Hartford Insurance Company and that its claims representative told her that the City of Saraland and Cochran were responsible for the accident and that she should submit all medical bills to the claims representative for payment. Watson complied with this request, and all of her medical expenses, with the exception of approximately $190, were paid by Hartford before this action was filed. In addition, Hartford paid Ms.

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Cite This Page — Counsel Stack

Bluebook (online)
662 So. 2d 224, 1995 WL 138462, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lowery-v-ward-ala-1995.