Cherokee Insurance Company, Inc. v. Benny Sanches and Judy Thompson Walther
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SUPREME COURT OF ALABAMA
OCTOBER TERM, 2006-2007
Cherokee Insurance Company, Inc.
Benny Sanches and Judy Thompson Walther
Appeal from Etowah Circuit Court
This is an appeal of a judgment entered in favor of Benny
Sanches and Judy Thompson Walther, the plaintiffs below, on
their claims against Cherokee Insurance Company, Inc., for
uninsured-motorist ("UM") benefits. We reverse that judgment.
I. Facts and Procedural History
Lines, Inc., as a commercial driver.
At all times pertinent
During the course of his employment, Sanches, a
Pemberton's flatbed division in Birmingham.
While Sanches was operating a tractor-trailer rig owned
by Pemberton on August 13, 2002, the vehicle left the paved
portion of a curved section of highway in Winston County,
Alabama, rolled over, and was damaged ("the 2002 accident").
registered and licensed in Tennessee.
According to Sanches,
he lost control of the vehicle after making an evasive driving
maneuver to avoid an oncoming tractor-trailer rig that had
entered his lane of travel.
The other rig did not strike any
part of the vehicle operated by Sanches.
The driver of the
other rig did not stop after the accident, and the identity of
that driver and the whereabouts of the other rig ("the phantom
vehicle") are unknown. Sanches was the only known witness to
the 2002 accident.
On the day of that accident, Sanches
received medical treatment at the emergency room of an area
hospital for injuries to his back and neck, and he was then
Sanches did not work or drive again for Pemberton
after the 2002 accident.
During 2004 Sanches filed two actions in state court in
Alabama related to the 2002 accident.
One was a breach-of-
contract action filed in the Etowah Circuit Court on January
In that action Sanches and Judy Thompson Walther,
who Sanches claims is his common-law wife ("the plaintiffs"),
asserted UM claims against Cherokee Insurance Company, Inc.,
and Alfa Mutual Insurance Company.
Pursuant to a liability
Cherokee insured the vehicle Sanches was operating at the time
of the 2002 accident; the limit of coverage for UM benefits
under the policy was $60,000.
Alfa insured a personal vehicle
Sanches owned on the date of the 2002 accident; the limit of
coverage for UM benefits under Alfa's policy on that vehicle
was $20,000 per person and $40,000 per occurrence.
breach-of-contract action Sanches sought damages for personal
injuries he suffered in the 2002 accident; Walther asserted
loss-of-consortium claims against both insurers.
Before filing the action in the Etowah Circuit Court,
Sanches had submitted a claim to Cherokee for UM benefits
under the policy.
The policy included an endorsement entitled
covered vehicles licensed or principally garaged in Tennessee.
provision in that endorsement concerning phantom vehicles:
"If there is no physical contact with [the insured
vehicle], the facts of the 'accident' must be proven
by clear and convincing evidence.
We will only
accept corroborating evidence of the claim other
than the evidence provided by the occupants in the
covered [vehicle] or in the vehicle an 'insured' is
("the corroborative-evidence provision").
Five months after
filing their complaint, the plaintiffs amended the complaint
Cherokee's prelitigation denial of Sanches's UM claim.
compensation action in the Winston Circuit Court in which
Pemberton was the defendant.
Sanches alleged that he had
permanently lost earning capacity as a result of the injuries
he suffered in the 2002 accident.
On December 14, 2004,
Sanches settled his worker's compensation action for $140,000;
that payment represented the full and final compensation for
his permanent partial disability ("the worker's compensation
settlement"). 1 Including temporary-total-disability benefits,
Sanches received a total of $159,352 in worker's compensation
payments related to the 2002 accident. 2
benefits following the 2002 accident ("the Social Security
A final decision on the Social Security claim was
The order approving the worker's compensation settlement
stipulated that it did not affect the plaintiffs' claims then
pending in the Etowah Circuit Court. As a condition of this
settlement, the workers' compensation insurer for Pemberton
waived any subrogation claim it had against any third party
that paid compensation to Sanches as a result of the 2002
Before the worker's compensation settlement, Sanches was
paid temporary-total-disability benefits of $472 a week for 41
weeks. The $159,352 total excludes any medical benefits paid
on behalf of Sanches by Pemberton's workers' compensation
rendered in July 2004 when a hearing examiner awarded Sanches
effective as of the date of the 2002 accident.
was not limited to the injuries that Sanches sustained in the
2002 accident. 3
Because it was undisputed that Sanches was the only known
witness to the 2002 accident and his vehicle had note made
contact with the phantom vehicle, Cherokee, on November 29,
2004, filed a motion for a summary judgment on the UM claim
based on the corroborative-evidence provision.
one month later Cherokee filed a notice of determination of
foreign law (and an accompanying proposed amended answer),
stating that issues of Tennessee law applied ("the notice of
determination"). Cherokee's filing indicated that a conflict
The hearing examiner on the Social Security claim based
his decision on all the following considerations related to
Sanches's condition: (1) he suffered a back injury in January
2001 while lifting a tarp on his flatbed truck; (2) he
incurred back injuries in the 2002 accident; (3) he incurred
additional spine injuries and experienced acute pain following
an automobile accident in February 2003; (4) he was not
employed as a long-haul driver or engaged in any other gainful
employment between the date of the 2002 accident and July
2004; (5) he was not physically capable of working as a truck
driver; and,(6) although he could perform sedentary work, he
did not, because of his age, education, and work experience,
have the employment skills to perform that work.
existed between the insurance laws of Alabama and Tennessee
concerning the enforceability of the corroborative-evidence
Cherokee argued that, because Tennessee was the
place of contract for the policy and the law of that state
authorized corroborative-evidence provisions, Tennessee law
issued by Cherokee [to Pemberton]" and prevent the plaintiffs
from recovering on the UM claim.
motion, Cherokee further argued that the following provision
in the policy prohibited recovery on the UM claim:
"[Cherokee] will not pay for any element of 'loss'
if a person is entitled to receive payment for the
compensation law, disability benefits or similar
("the benefit-setoff provision"). Cherokee contended that the
plaintiffs could not recover because the amounts Sanches had
received in the worker's compensation settlement and from the
coverage in the
According to Cherokee, the benefit-
The proposed amended answer Cherokee filed also indicated
a conflict between Alabama and Tennessee law in the
interpretation of the policy.
setoff provision prohibited a "double recovery" by Sanches of
both the UM benefits under the policy and the payments from
those collateral sources.
January 31, 2005.
That day the trial court ordered that
Alabama, not Tennessee, law applied; struck the notice of
determination; and denied Cherokee's motion for a summary
A bench trial on the UM claims against Cherokee and
Alfa was then conducted on February 1-2, 2005. 5
After considering the sworn testimony of all witnesses
and other evidence, the trial court on May 27, 2005, entered
a judgment stating that the court "finds in favor of [Sanches]
and awards damages in the amount of $60,000," and "finds in
Both Alfa and Cherokee remained as defendants at
the time that judgment was entered.
The trial court's order
Before the trial, the plaintiffs filed a motion to sever
their UM claims (nonjury claims) from their bad-faith claim (a
jury matter). The trial court granted that motion from the
bench at the close of the trial of the UM claims; that trial
was conducted with the understanding that, if necessary, a
separate adjudication of the bad-faith claim would follow.
provisions upon which Cherokee had relied in support of its
motion for a summary judgment.
Thereafter, Cherokee filed postjudgment motions seeking
to set aside the judgment against it on the UM claim based on
the corroborative-evidence provision and the benefit-setoff
provision; the trial court denied those motions.
settlement of their claim against Alfa; the plaintiffs then
judgment against Alfa only. 6
Cherokee timely appealed, and
the question presented is whether the trial court correctly
denied Cherokee's postjudgment motions and entered judgment
against it on the plaintiffs' UM claim. 7
II. Standard of Review
Before its settlement with the plaintiffs, Alfa had
argued to the trial court that, because Sanches was occupying
a vehicle he did not own when the 2002 accident occurred,
Cherokee was the primary UM carrier and Alfa was the excess
carrier under the terms of its automobile-liability policy for
Sanches's personal vehicle.
On February 23, 2007, the trial court entered an order
certifying that, pursuant to Rule 54(b), Ala. R. Civ. P., its
judgment for the plaintiffs on their UM claim was final. The
bad-faith claim against Cherokee remains pending below.
The ore tenus standard of review applies with respect to
the judgment entered on the UM claim.
We have described that
standard as follows:
"'"When a judge in a nonjury case hears oral
testimony, a judgment based on findings of fact
based on that testimony will be presumed correct and
will not be disturbed on appeal except for a plain
and palpable error."' ...
"'"The ore tenus rule is grounded upon the
principle that when the trial court hears
oral testimony it has an opportunity to
evaluate the demeanor and credibility of
"disputed issues of fact," whether the
testimony or upon a combination of oral
testimony and documentary evidence. ...
"'"... [Further], this Court will
not disturb the trial court's
conclusion unless it is clearly
erroneous and against the great
weight of the evidence ...."'
"... However, 'that presumption [of correctness] has
no application when the trial court is shown to have
improperly applied the law to the facts.' ..."
Robinson v. Evans, [Ms. 1051344, Dec. 8, 2006] ___ So. 2d
_____, ____ (Ala. 2006). In actions like this where the trial
court does not make express findings, we also have stated:
"[T]his Court will assume that the trial judge made
those findings necessary to support the judgment.
... Under the ore tenus rule, the trial court's
judgment and all implicit findings necessary to
support it carry a presumption of correctness and
will not be reversed unless 'found to be plainly and
palpably wrong.' ...
'The trial court's judgment
in such a case will be affirmed, if, under any
reasonable aspect of the testimony, there is
credible evidence to support the judgment.'"
Transamerica Commercial Fin. Corp. v. AmSouth Bank, N.A., 608
So. 2d 375, 378 (Ala. 1992).
Cherokee argues that the trial court erred because it
applied Alabama law and, in doing so, failed to apply the
According to Cherokee, the
plaintiffs may not recover on their UM claim if that provision
is enforced and applied.
Cherokee argues that the place of contract for the policy
Cherokee further posits that Tenn. Code Ann. (1994),
1201(e), authorizes corroborative-evidence provisions like the
one in the policy.
In pertinent part, that statute provides:
"(e) If the owner or operator of any motor
vehicle which causes bodily injury or property
damage to the insured is unknown, the insured shall
have no right to recover under the uninsured
motorist provision unless:
"(1)(A) Actual physical contact shall have
occurred between the motor vehicle owned or operated
by such unknown person and the person or property of
the insured; or
"(B) The existence of such unknown motorist is
established by clear and convincing evidence, other
than any evidence provided by occupants in the
insured's vehicle ...."
§ 56-7-1201(e), Tenn. Code Ann. (1994); 8 see also Fruge v.
Doe, 952 S.W.2d 408, 412 (Tenn. 1997) (holding that the "clear
and convincing" evidentiary standard in § 56-7-1201(e)(1)(B)
applies to the claimant's duty to prove the existence of a
Sanches was the only occupant of the vehicle at the time
of the 2002 accident.
His testimony was the sole evidence
concerning the alleged negligent operation of the phantom
vehicle. Further, the evidence at trial indicated that the
phantom vehicle made no contact with the vehicle. Because the
Pursuant to § 56-7-1201(e), an insured claiming UM
benefits related to an accident involving a phantom vehicle
must also report the accident to the appropriate lawenforcement agency within a reasonable time after its
occurrence, and not be negligent in failing to determine the
identity of the other vehicle and its owner or operator.
provision, judgment should have been entered for Cherokee if
the law of Tennessee applies.
Conversely, if the evidentiary
burden of proof applicable in civil actions in Alabama is
testimony alone that the negligent operation of the phantom
vehicle caused the 2002 accident.
determination seeking to apply Tennessee law.
on these circumstances and the parties' arguments in their
appellate briefs, we assume that the trial court struck the
notice of determination for either of two reasons: (1) from a
Tennessee was not applicable; or (2) in the exercise of its
discretion to manage the UM claim it found that Cherokee's
notice of determination was untimely.
Is the Substantive Law of Tennessee Applicable?
determining which state's law applies in a contract dispute.
That principle was stated in Stovall v. Universal Construction
Co., 893 So. 2d 1090 (Ala. 2004):
"In a contractual dispute, Alabama law would have us
first look to the contract to determine whether the
parties have specified a particular sovereign's law
to govern. Cherry, Bekaert & Holland v. Brown, 582
So. 2d 502, 506 (Ala. 1991). Lacking such a
contractual specification, we follow the principle
of lex loci contractus, applying the law of the
state where the contract was formed. Brown, 582 So.
2d at 506. That state's law then governs unless it
is contrary to the forum state's fundamental public
policy. Id. at 506-07."
893 So. 2d at 1102. 9
applicable under Tennessee law or Alabama law, the parties
vigorously contest whether the place of contract was Tennessee
policy covering the vehicle (as well as Pemberton's other
vehicles) was issued and delivered there; that Pemberton paid
the premiums for the policy in Tennessee; that the vehicle was
registered and licensed in Tennessee; and that the majority of
vehicles covered under that policy were garaged in Tennessee.
We have not found in the record, nor have we been
directed to, any evidence indicating that Cherokee and
Pemberton -- the parties to the policy -- designated that the
law of any particular state would control in the event of a
dispute concerning interpretation of the policy.
plaintiffs –- full-time residents of this State at the time of
the 2002 accident -- presented evidence indicating that, after
working hours, the vehicle was regularly garaged at Sanches's
home in Etowah County; that it was assigned to a Pemberton
division based in Birmingham; that it was regularly repaired
in Alabama; and that it was operated in the ordinary course of
Notwithstanding the undisputed evidence concerning the
regular operation, maintenance, and storage of the vehicle in
policy was issued and delivered to Pemberton in that state.
See Cincinnati Ins. Co. v. Girod, 570 So. 2d 595, 597 (Ala.
1990) (law of the state where an insurance policy is issued
applies when interpreting that policy).
substantive law of Tennessee (including § 56-7-1201(e), Tenn.
Code Ann. (1994)) applies here and the corroborative-evidence
provision is enforceable.
In so holding, we reject two arguments advanced by the
encompassed in our UM statute –- § 32-7-23, Ala. Code 1975 -must apply because the vehicle was garaged and operated in
However, the language of our UM statute is plain
that it applies to a motor-vehicle-liability policy that is
"delivered or issued for delivery [in Alabama] with respect to
any motor vehicle registered or principally garaged in this
state ...." § 32-7-23.
Although the vehicle was "principally
garaged" in Alabama, it was not licensed in this State, and
the policy was issued and delivered in Tennessee.
Second, the plaintiffs note that this Court previously
has refused to enforce a corroborative-evidence provision that
was asserted as defense to an UM claim concerning a phantom
We stated in Walker v. GuideOne Specialty Mutual
Insurance Co., 834 So. 2d 769, 772 (Ala. 2002):
"Alabama's uninsured-motorist statute provides
protection for 'persons ... 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.' § 32-7-23, Ala. Code 1975. '[A] policy
exclusion that "is more restrictive than the
Sharpton, 768 So. 2d 368, 370 (Ala.2000) (quoting
Watts v. Preferred Risk Mut. Ins. Co., 423 So. 2d
171, 175 (Ala. 1982)). Unknown phantom drivers, like
the one Walker claims caused her accident, are
included within the definition of an uninsured
motorist. Criterion Ins. Co. v. Anderson, 347 So. 2d
384 (Ala. 1977)."
The Walker Court further stated:
"The undeniable effect of [the insurer's]
corroborative-evidence requirement, therefore, is to
exclude from coverage those who were involved in an
accident as the result of a phantom vehicle, but who
cannot present 'competent evidence other than the
testimony of a person making [a] claim.' Such
persons may be 'legally entitled' to recover under
§ 32-7-23, but they are denied uninsured-motorist
coverage because they do not meet [the insurer's]
raises the burden of proof for Walker and others
similarly situated to a burden higher than the
evidentiary burden required by law in Alabama. [The
insurer's] policy, therefore, excludes from coverage
those who otherwise would be able to prove that they
are 'legally entitled to recover damages' under §
restrictive than the uninsured-motorist statute, it
is void and unenforceable. Peachtree [Cas. Ins. Co.
v. Sharpton, 768 So. 2d 368 (Ala. 2000)]. To hold
otherwise would permit [the insurer] to alter
Alabama law by contract.
"Alabama's statutory provisions relating to
uninsured-motorist coverage are silent on the matter
contractual burden of proof whatsoever ..., while
the uninsured-motorist statutes in some other states
expressly provide that proof of 'no-contact' or
'phantom' unidentified-vehicle accidents must be
established by corroborative evidence. ... While we
understand [the insurer's] desire to protect itself
against fraudulent claims, we cannot insert into
Alabama's uninsured-motorist statute an exception
the Legislature has chosen not to include."
834 So. 2d at 773-74 (emphasis supplied).
Relying on the
authority of Walker, the plaintiffs argue that we should not
enforce the corroborative-evidence provision here because,
they say, it conflicts with the public policy of this State.
(stating that the forum is not necessarily compelled by the
Full Faith and Credit Clause to give automatic effect to the
statutes of another state and subordinate its own law).
An exception to our lex loci contractus rule does apply
where the law of a foreign state "is contrary to [Alabama's]
fundamental public policy."
Stovall, 893 So. 2d at 1102.
Moreover, Walker was soundly reasoned, and the corroborativeevidence provision here clearly is "more restrictive than
[Alabama's] uninsured-motorist statute."
834 So. 2d at 773.
However, one of the facts in Walker was that the insurance
policy was issued in Alabama.
The public policy described in
Walker applied to an insurance contract "delivered or issued
for delivery in [Alabama]." § 32-7-23.
In interpreting § 32-
7-23, we do not discern any legislative intent that the public
policies encompassed in our UM statute were intended to take
precedence over those of sister states.
the policy here was not "delivered or issued for delivery" in
exception in Stovall are not extant. 10
In summary, the trial court erred if it determined, as it
must have if it found the notice of determination timely, that
Sanches's testimony alone was sufficient proof that the 2002
accident was caused by the negligent operation of the phantom
Given the applicable substantive law of Tennessee
and in light of the corroborative-evidence provision in the
policy, that evidence was insufficient to support a judgment
This finding is consistent with our other decisions in
UM actions in which, although the motor-vehicle accident
occurred in Alabama, we have enforced contractual provisions
contained in insurance policies issued in other states. See,
e.g., Ailey v. Nationwide Mut. Ins. Co., 570 So. 2d 598 (Ala.
1990)(law of Tennessee applied to issue whether, on a UM claim
by a Tennessee resident under a policy issued in Tennessee,
other vehicles involved in a multivehicle accident were
"uninsured"); Best v. Auto-Owners Ins. Co., 540 So. 2d 1381
(Ala. 1989) (law of South Carolina applied on UM-coverage
question under a policy issued there where a resident of that
state filed a UM claim in Alabama concerning a vehicle
principally garaged in South Carolina); and Cotton v. State
1989)(principles of Tennessee law concerning stacking and
construction of policy limits applied to determine the rights
of a Tennessee resident for UM benefits where the motorvehicle policy was issued in that state).
for the plaintiffs. Accordingly, the trial court erred if it
applied the substantive law of Alabama to the UM claim.
B. Was Notice of Determination Timely?
In an effort to avoid the application of Tennessee law,
the plaintiffs further argue that, as a matter of procedure,
Cherokee waived its right to rely on the law of Tennessee by
not filing its notice of determination in a timely manner.
discussed above, the trial court did not state a reason for
striking the notice of determination or electing to apply
Below we consider whether, in the exercise of
its discretion, the trial court could have applied Alabama law
based on Cherokee's alleged tardiness in filing its notice of
Rule 44.1, Ala. R. Civ. P., states that a litigant "who
intends to raise an issue concerning the law of another state
... shall give notice by pleadings or other reasonable written
The notice of determination was filed on December
30, 2004 -- 32 days before the scheduled trial date.
record indicates that this filing was the first occasion on
which Cherokee specifically asserted in the trial court that
Tennessee law should govern the plaintiffs UM claim against
The plaintiffs observe that the notice of determination
was filed after the discovery cutoff and after the deadline
for submitting dispositive motions.
The plaintiffs contend
that, because of the lateness of the filing of the notice of
determination, the trial court had the discretion to strike
it, which it did on January 31, 2005.
Cherokee counters that the plaintiffs were aware of its
intent to rely on the corroborative-evidence provision well
indicates that the corroborative-evidence provision was the
subject of the prelitigation correspondence in which Cherokee
denied Sanches's UM claim, that it was quoted in Cherokee's
May 2004 answer, and that it was raised as a defense
Cherokee's motion for a summary judgment filed in November
Cherokee further argues that the UM endorsement to the
Endorsement" -– also was filed in the court records months in
emphasized matters pertinent to Tennessee.
Rule 44.1 does not specify a time for filing a notice of
A party who raises an issue concerning the law
of another state must give, "at a minimum, reasonable notice
of its intent to raise such an issue." Shelter Mut. Ins. Co.
v. Barton, 822 So. 2d 1149, 1155 n. 5 (Ala. 2001).
the notice of foreign law was contained in a motion for a
summary judgment submitted over one month before trial, and we
applied the law of another state.
Because a determination of
the "reasonableness" of a Rule 44.1 notice necessarily is case
specific, there is no bright-line standard concerning the
timeliness of such a notice.
See Semo Aviation, Inc. v.
1978)(notice of foreign law given by party in chambers on the
day of trial not reasonable when party had
months to prepare
for trial); and Simmons Mach. Co. v. M & M Brokerage, Inc.,
409 So. 2d 743, 759 (Ala. 1981)(notice untimely when provided
almost three years after complaint was filed, one week before
trial, and five months after pretrial order and ruling on
Here the notice of determination provided the trial court
and the plaintiffs "reasonable written notice" within the
meaning of Rule 44.1, Ala. R. Civ. P., of Cherokee's intent to
rely on Tennessee law. In holding that Cherokee complied with
Rule 44.1, we are influenced by the following factors.
filing the notice of determination, Cherokee demonstrated its
intent to rely on the corroborative-evidence provision in its
prelitigation correspondence denying Sanches's claim, in its
answer, and in its November 29, 2004, motion for a summary
Moreover, even though the notice of determination
was filed after the discovery cutoff, that filing did not
alter the facts or preclude any discovery concerning the 2002
Additionally, the UM claims were on a nonjury
docket and had been pending for less than one year before
Cherokee filed its notice of determination.
The filing of a
Rule 44.1 notice over one month before a nonjury trial and
summary judgment offered the trial court and the plaintiffs
reasonable notice of Cherokee's intent to invoke Tennessee
Under these circumstances, if the trial court struck the
notice of determination on the basis of untimeliness, that
exceeded its discretion.
enforceable under the applicable substantive law of Tennessee,
Cherokee provided reasonable notice of its intent to rely on
issues concerning the law of that state, and that provision
barred recovery for the plaintiffs on their UM claim. 11
IV. Bad-Faith Claim
Cherokee relied on the corroborative-evidence provision
when it denied Sanches's prelitigation claim for UM benefits.
Sanches's bad-faith claim was based on Cherokee's failure to
provision in the policy is enforceable here and bars recovery
on the plaintiffs' UM claim, Sanches's bad-faith claim is due
to be dismissed with prejudice.
See Federated Mut. Ins. Co.
v. Vaughn, [Ms. 1041867, January 5, 2007] _____ So. 2d _____
(Ala. 2007) (as a matter of law, insurer was entitled to
summary judgment on bad-faith claim where it did not breach
the contract underlying the tort action).
In view of our holding, we need not consider Cherokee's
alternative argument that, because Sanches received worker's
compensation and Social Security payments in excess of the
$60,000 policy limit for UM benefits, the benefit-setoff
provision barred his recovery. Additionally, in light of the
derivative nature of Walther's claim, there is no need to
consider Cherokee's argument regarding Alfa's pro tanto
settlement as it applied to the judgment in favor of Walther.
For the reasons stated above, we reverse the judgment
against Cherokee on the plaintiffs' UM claim and remand this
cause to the trial court for further proceedings consistent
with this opinion.
REVERSED AND REMANDED.
See, Lyons, Woodall, Stuart, Smith, Parker, and Murdock,
Cobb, C.J., concurs in the result.
COBB, Chief Justice (concurring in the result).
I recognize that the application of the law of Tennessee
requires the result reached in this case.
However, I do not
agree with the rationale of the opinion that the public policy
concerns raised by the Alabama Legislature's enactment of §
32-7-23, Ala. Code 1975, with respect to the "corroborative
evidence" requirement should be inapplicable to this case.
believe that this State's public-policy concerns should be
considered in cases arising out of accidents that occur in