HERMAN N. JOHNSON, JR., UNITED STATES MAGISTRATE JUDGE.
This civil action proceeds before the court on Defendant Advanced Correctional Healthcare, Inc.'s ("ACH") Motion for Summary Judgment (Doc. 89), Defendant Evanston Insurance Company's ("Evanston") Motion for Summary Judgment (Doc. 91), Evanston's Motion to Strike Exhibits in Support of Plaintiffs' Brief in Opposition (Doc. 106), and Plaintiffs' Request for Judicial Notice. (Doc. 116).
Based upon the following analyses, the court will
Pursuant to the Federal Rules of Civil Procedure, "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. Rule 56(a). Defendants, as the parties seeking summary judgment, bear the initial responsibility of informing the district court of the basis for their motions, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which they believe demonstrate the absence of a genuine issue of material fact. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
Rule 56 "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. 2548. "In such a situation, there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 322-23, 106 S.Ct. 2548. In addition, a movant may prevail on summary judgment by submitting evidence "negating [an] opponent's claim," that is, by producing materials disproving an essential element of a non-movant's claim or defense. Id. at 323, 106 S.Ct. 2548 (emphasis in original).
A non-moving party demonstrates a genuine issue of material fact by producing evidence by which a reasonable fact-finder could return a verdict in its favor. Greenberg v. BellSouth Telecomms., Inc., 498 F.3d 1258, 1263 (11th Cir. 2007) (citation omitted). The "court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (citations omitted). "`Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.'" Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). "Thus, although the court should review the record as a whole, it must disregard all evidence favorable to
The undersigned sets forth the following facts for the summary judgment determination, drawn from the evidence taken in the light most favorable to Plaintiffs.
Plaintiff Blake Dorning ("Dorning") serves as the Sheriff of Madison County, Alabama ("County"). As Sheriff, Dorning's duties include (1) managing and operating the Madison County Jail ("Jail") and (2) providing services that tend to inmates' needs, including housing, food, and medical care. A November 2000 consent decree binds Dorning to provide constitutionally adequate medical care to the Jail's inmates, and Dorning utilizes funding from the County to comply with the consent decree's requirements. (Doc. 95-11 at 3-23). The County retains a statutory duty to fund the operation of the Jail through the Sheriff's budget, which includes funding at a necessary level to provide constitutionally adequate medical care.
In 2002, Dr. Norman Johnson ("Johnson") founded Advanced Correctional Health Care, Inc. ("ACH"). ACH provides healthcare in seventeen (17) states at approximately three-hundred (300) correctional facilities, serving as the largest privately-owned provider of correctional healthcare.
On July 29, 2005, Dorning and the County (collectively, "Plaintiffs") issued a Request for Proposals (RFP) to administer a comprehensive, healthcare services system at the Jail. (Doc. 95-9 at 27). The RFP indicated that the selected provider would serve as the sole supplier of healthcare services, and the coordinator of the healthcare delivery system, at the Jail. (Id. at 28). The RFP required that the selected provider carry "acceptable professional liability insurance providing coverage for claims including professional liability, negligence, and claims asserted pursuant to 42 U.S.C. § 1983 ... and name Madison County, the Sheriff, and their agents and employees as additional insureds." (Id. at 34). The RFP also required that the selected provider "indemnify, defend, and hold harmless the Sheriff, Madison County and any and all of their agents and employees from any claims arising from the delivery of healthcare services to inmates at the [Jail]." (Id.)
ACH, along with several other companies, responded to the RFP. Although the County rejected ACH's first proposal, the County subsequently engaged ACH to negotiate a contract for the provision of healthcare at the Jail. The discussions between ACH and the County culminated in a Health Services Agreement in July 2006 ("Agreement"). (Doc. 94-2 at 8 through Doc. 94-3 at 12). The parties subsequently renewed the Agreement on May 1, 2009 (Doc. 95-11 at 33-49); May 1, 2012 (Doc. 95-11 at 51 through Doc. 95-12 at 18); and February 1, 2014. (Doc. 95-13 at 2-22).
All versions of the Agreement state that ACH would serve as the "sole supplier of healthcare services (including pharmacy) and coordinator of the healthcare delivery system" at the Jail. (Doc. 94-2 at 8; Doc. 95-11 at 33, Doc. 95-11 at 51; Doc. 95-13 at 2). The Agreement required ACH to "develop, manage and staff a comprehensive healthcare services system," yet Dorning retained responsibility for the Jail's operations. (Doc. 94-2 at 8-9; Doc. 95-11 at 33-34;
(Doc. 94-2 at 9; Doc. 95-11 at 34; Doc. 95-11 at 52; Doc. 95-13 at 3).
The Agreement accorded that "[a]s between insurance coverage provided by other sources to the above named entities and individuals and ACH's insurance coverage, ACH's insurance coverage shall be primary." (Id.). The Agreement also required ACH to furnish the Madison County Administrator with a copy of ACH's insurance policy obtained in compliance with the Agreement. (Id.) Furthermore, it provided that "all claims, litigation costs, attorney fees and any judgment or settlement money will be paid by ACH" should "ACH's insurance provider withdraw coverage or become insolvent." (Doc. 94-2 at 10; Doc. 95-11 at 35; Doc. 95-12 at 1; Doc. 95-13 at 4).
The Agreement also contained bilateral indemnification provisions:
(Id.). Jeffrey Rich ("Rich"), the County's attorney, drafted the aforementioned insurance and indemnification provisions in the Agreement.
The parties understood that ACH agreed to defend and indemnify claims related to ACH's provision of healthcare services. (Doc. 95-1 at 112, ll. 19-22). On June 27, 2006, ACH acquired a Certificate of Liability Insurance that designated the Jail as the Certificate Holder and included Madison County as "additional insured under the General Liability if required by contract in writing." (Doc. 95-13 at 24). An updated Certificate in September 2006 stated that "Madison County Jail, AL and the Madison County Sheriff's Office, AL are included as additional insured under the General Liability and Professional Liability coverage if required by contract in writing. Coverage applies to operations in correctional facilities." (Id. at 15). However, Rich objected that these two entities were not legal entities and requested a name change. (Id. at 13).
A November 2006 Certificate added the Jail and the Sheriff of Madison County as "additional insured" under the General Liability, Professional Liability, and Civil Rights Liability coverage "if required by contract in writing." (Doc. 95-13 at 26). Furthermore, the Certificate limited the coverage to ACH operations in correctional facilities only. This language consistently remained in the yearly-renewed Certificates through July 2014. (Doc. 95-1 at 104-07; Doc. 95-10 at 32, 34; Doc. 95-13 at 26, 28, 29, 30, 31; Doc. 96-6 at 29).
The County retained insurance through Atlantic Specialty Insurance Company, an affiliate of OneBeacon Insurance Group, Ltd. ("OneBeacon"), to cover claims against the County, Dorning, and other County officials that stem from alleged acts or omissions by the County, Dorning, and other County officials. OneBeacon's policy contains a Law Enforcement Liability Endorsement, which enacts a "Transfer of Rights of Recovery Against Others to Us" clause providing as follows:
(Doc. 93-8 at 62).
Johnson sent several letters to Dorning updating him on the progress ACH employees undertook in the Jail to comply with the Agreement. (Doc. 95-10 at 8-14). Between 2006 and 2014, Plaintiffs expressed no concerns regarding the medical care ACH provided. (Doc. 95-1 at 33). On January 5, 2011, Rich sent a letter to Jefferson County Sheriff Mike Hale, recommending ACH's services "without reservation." (Doc. 95-14 at 2-3). Rich praised ACH's ability to "improve the healthcare of the offenders housed in [the] facility, while controlling the medical costs and providing risk management." (Id.)
In June 2006, Rich, the County Attorney, requested assurance from ACH that it would acquire insurance in accordance with the terms of the Agreement. Specifically,
Beginning in July 2006, ACH procured and maintained general liability, professional liability, and medical malpractice insurance at its own expense. ACH's insurance covered professional and medical liability, negligence, and claims brought pursuant to 42 U.S.C § 1983. Furthermore, as the Agreement required, ACH maintained policy limits of one million dollars ($1,000,000) per occurrence and three million dollars ($3,000,000) aggregate. Although ACH eventually procured insurance, Bielenberg informed Johnson of the difficulties in acquiring insurance that complied with the Agreement. (Doc. 95-10 at 16).
On May 31, 2013, ACH submitted an Application for Locum Tenens and Contract Staffing Organizations Professional and General Liability to Evanston. (Doc. 94-9 at 1). As part of its application, ACH included a copy of its standard template contract. (Doc. 94-11 at 15 — Doc. 94-13 at 1). ACH's standard template contract does not contain the required insurance coverage terms found in the Agreement's Section 6(B). As a result of the application, Evanston issued ACH a claims-made insurance policy for "Locum Tenens and Contract Staffing Professional Liability Insurance" ("Policy") for the policy period of August 1, 2013, to August 1, 2014. (Doc. 94-4 at 19). Evanston then renewed the Policy with a policy period of August 1, 2014, to August 1, 2015.
G. Malpractice means an act, error or omission in Medical Services rendered or that should have been rendered.
H. Medical Services means services ... provided in the medical care or treatment of any patient ... within the scope of the Healthcare Provider's license, certificate or other qualification to practice Medical Services.
J. Professional Personal Injury means ... any bodily injury, mental injury, sickness, disease, emotional distress or mental anguish, including death resulting therefrom of any patient, arising out of Malpractice.
(Doc. 94-5 at 13).
Evanston also issued ACH an "Amendatory Endorsement — Civil Rights Violation." This endorsement states in pertinent part:
(Doc. 94-4 at 23-24)(emphasis added).
Furthermore, ACH's insurance policy with Evanston included an "additional insured" endorsement:
This endorsement modified insurance provided under the following:
(Doc. 94-4 at 28). Upon the renewal of the Policy in August 2014, Evanston issued a revised Additional Insured endorsement that eliminated paragraph 7, deeming Evanston's Policy no longer "excess." (Doc. 93-8 at 41)("It is understood and agreed to that Endorsement No. 5 [the original "Additional Insured" endorsement] is deleted in its entirety and replaced with [this revised version.]")
Although the yearly Certificates of Liability Insurance ("Certificates") list Plaintiffs as "Additional Insureds," neither the Certificates, Policy, or endorsements list Dorning or the County as "Additional Named Insureds."
On April 27, 2011, Randolph and Angela Moore commenced a civil action in the Circuit Court of Madison County, Alabama, against ACH, Dorning, and the Madison County Commission. (Doc. 95-14 at 27). Mr. Moore arrived at the Jail on April 7, 2010, and subsequently he gave a blood sample to authorities. Upon review of the blood sample, the Sheriff's Department incorrectly told Moore that he tested positive for a sexually transmitted disease. Despite his insistence that the test could not be accurate, the defendants ordered Moore to visit the Madison County Health Department and receive treatment for his STD. Moore's wife also commenced treatment at the Madison County Health Department and took medication for two weeks, causing adverse side effects for her. The complaint also avers the Sheriff's Department was not properly funded or staffed, and the Madison County Commission failed to provide such funding.
The amended complaint, filed on September 12, 2011, alleges claims of negligence, wantonness, and violations of the Alabama Medical Liability Act (§ 6-5-542, et seq.) of the Code of Alabama (1975) against all defendants. (Doc. 95-14 at 32). Neither the original nor the amended complaint alleged § 1983 claims. After completing its coverage review, Evanston agreed to provide a defense and indemnity under a reservation of rights and appointed defense counsel for Plaintiffs. (Doc. 95-4 at 16).
On May 5, 2015, Rodricus Hammonds initiated a pro se civil action in the Circuit Court of Madison County, Alabama, against the Madison County Sheriff's Department, the Madison County Medical Staff, and Dr. Arthur Williams. (Doc. 95-14 at 18). Hammonds arrived at the Jail in January 2014, after which he began suffering itches on his body. Hammonds alleges that he proceeded through the proper procedures and filed a sick call to see a medical staff member, and medical personnel placed him on the waiting list to see Dr. Williams. Hammonds alleges he waited for over three weeks, and the itching progressively worsened. After he visited Dr. Williams, he avers Dr. Williams indicated the absence of any ailments. However, Hammonds alleges that the itching worsened and he developed rashes.
Two months later, upon reports of a scabies breakout in his section of the Jail, Hammonds returned to Dr. Williams. Hammonds alleges that Dr. Williams sent him back to his cell, and Hammonds transitioned to a medical cell after a nurse discovered Hammonds's open wounds from the itching. Hammonds avers that he remained in the medical unit from March
Hammonds filed an amended complaint on September 2, 2015, alleging identical facts to his original complaint and a state law claim of medical malpractice against all defendants. (Doc. 97-1). After completing its coverage review, Evanston agreed to defend the allegations under a reservation of rights and appointed defense counsel for the plaintiffs. (Doc. 95-14 at 20-26).
This case centers on a question regarding the applicability of insurance coverage in five cases against Dorning and the County ("the Underlying Actions"). The facts in each case reveal a mixture of claims against ACH, Dorning, the County, and numerous individuals employed by and/or affiliated with ACH and the County. The following five cases raise the same procedural question: whether ACH and Evanston owed a duty to defend and indemnify the County and Dorning.
On July 8, 2014, Robert Elliott, as the personal representative of the estate of Nikki Listau ("Listau"), commenced a civil action in the United States District Court for the Northern District of Alabama (No. 5:14-cv-01309-CLS). The claims below stem from the most recent version of the complaint, filed on October 31, 2014. (Doc. 97-2).
The complaint alleges the defendants — including Madison County, Dorning, and ACH — acted deliberately indifferent to Listau's medical needs in violation of the Fourteenth Amendment. Specifically, the complaint alleges that upon Listau's arrival at the Jail, she exhibited symptoms from alcohol withdrawal, and thus, officials placed her in a medical observation cell. The complaint alleges that, from prior jail admissions, both ACH and Jail personnel knew that Listau struggled with alcoholism and suffered from a history of advanced delirium tremens (DTs) and seizures during withdrawal. Shortly after Listau arrived at the Jail, a nurse affiliated with ACH examined Listau and identified her as suffering from severe DTs.
The complaint alleges correctional officers at the Jail checked on Listau every fifteen minutes, yet ACH employees failed to sufficiently monitor Listau's vital signs. The day after Listau's arrival, personnel found Listau unresponsive in her cell, and Listau died the day after at Huntsville Hospital. The autopsy report indicated that Listau died from severe blunt force injuries, including a broken left femur and multiple rib fractures.
Count I of the complaint alleges a claim of deliberate indifference to serious medical needs, pursuant to 42 U.S.C. § 1983, against all defendants. Count I alleges that certain individual defendants, including Dorning and specific ACH employees, act as supervisory officials for the jail and failed to fulfill their responsibility for development and implementation of policies and procedures for medical care. Furthermore, Count I states Madison County intentionally refused to adequately fund medical care with deliberate indifference to the serious medical needs of inmates such as Listau. Finally, Count I alleges Dorning remains liable for the acts of ACH and its policymakers, and the defendants' conduct caused Listau to suffer physical and emotional injuries that led to her death.
Count II of the complaint alleges state law claims of negligence and wantonness against individual ACH defendants and unknown ACH employees. Specifically, Count II alleges ACH employees involved with Listau's care owed a duty to satisfy the standard of care applicable to inmates
On July 9, 2014, Rich sent a letter to Johnson stating demands for indemnification pursuant to the Agreement. Furthermore, the letter requested ACH provide notice to its insurer for it to consider Dorning and Madison County as "additional insureds" under the Policy. Madison County, Dorning, and ACH retained separate counsel to defend the Listau action, and the parties ultimately reached a settlement. Evanston and OneBeacon separately contributed to the settlement of the individual claims against their respective insureds. Rich states that OneBeacon decided to settle based on the allegations in the Listau complaint and the risk and exposure to the insurer and its insureds. The court dismissed the action on October 6, 2016. (Doc. 97-6).
On April 15, 2014, Rich sent a letter to Johnson stating that Dorning received correspondence from an attorney representing the Estate of Deundrez Woods. (Doc. 93-9 at 4). Woods died while he was an inmate at the Jail in August 2013. Rich's letter served as notice of Dorning's demand for indemnification pursuant to the Agreement. (Id.) Furthermore, the letter requested that ACH provide notice to its insurer for it to consider Dorning as an "additional insured" under the Policy. (Id.).
On October 14, 2014, Tanyatta Woods, as the personal representative of the estate of Deundrez Woods ("Woods"), commenced a civil action in the United States District Court for the Northern District of Alabama (No. 5:14-cv-1964-KOB). The claims below stem from the most recent version of the complaint, filed on October 29, 2014. (Doc. 97-7).
The complaint alleges that the defendants — including Madison County, Dorning, and ACH — acted deliberately indifferent to Woods's medical needs in violation of his Fourteenth Amendment rights as a pretrial detainee. Specifically, the complaint alleges Woods arrived at the Jail in late June 2013, and Woods's mental functioning underwent a severe change between late July and early August 2013. This decline in Woods's mental functioning led personnel to move him to a medical observation cell. The complaint states that over a two-week period, Woods's condition deteriorated — he began hallucinating, remained in a confused state, and became unable to communicate with correctional and medical personnel. Correctional personnel tased Woods at least three times over this period.
Over this period, Woods did not eat or drink, and records indicated that correctional personnel cut off Woods's water supply a week before his death. The complaint alleges that both County and ACH personnel knew of Woods's deteriorating condition and did nothing to alleviate it. During this period, Woods's right foot became gangrenous, and the complaint alleges that correctional personnel remained aware of Woods's condition but did nothing to help him. The complaint also argues that in the week leading up to Woods's death, no ACH personnel took Woods's temperature, checked his blood pressure, checked his blood sugar, or otherwise attempted to assess Woods's condition. On August 19, 2013, someone found Woods completely non-responsive, and he died two days later at Huntsville Hospital.
Count II of the complaint alleges state law claims of negligence and wantonness against individual ACH defendants and unknown ACH employees. Specifically, Count II alleges that the ACH employees involved with Woods's care owed a duty to satisfy the standard of care applicable to inmates and/or to ensure those under their supervision were adequately trained regarding the proper care of such inmates, and that these employees negligently and/or wantonly violated this standard of care. Furthermore, Count II states that because ACH personnel acted within the scope of their employment, defendant ACH remains liable for their negligence and/or wantonness.
Madison County, Dorning, and ACH retained separate counsel to defend the Woods action, and the parties ultimately reached a settlement. Evanston and OneBeacon separately contributed to the settlement of the individual claims against their respective insureds. Rich states that OneBeacon decided to settle based on the allegations in the Woods complaint and the risk and exposure to the insurer and its insureds. The court dismissed the action on February 2, 2017. (Doc. 97-10).
On April 8, 2014, Rich sent a letter to Johnson stating that Dorning received correspondence from an attorney representing the Estate of Tanisha Jefferson. (Doc. 93-9). Jefferson died while she was an inmate at the Jail in October 2013. Rich's letter served as a notice of Dorning's demand for indemnification pursuant to the February 2014 Agreement. (Id.) Furthermore, the letter requested that ACH provide notice to its insurer for it to consider Dorning as an "additional insured" under the Policy. (Id.).
On October 14, 2014, Carolyn Jefferson, as the personal representative of the estate of Tanisha Jefferson ("Jefferson"), commenced a civil action in the United States District Court for the Northern District of Alabama (No. 5:14-cv-1959-AKK). The claims below stem from the most recent version of the complaint, filed October 29, 2014. (Doc. 99-1).
The complaint alleges that the defendants — including Madison County, Dorning, and ACH — acted deliberately indifferent to Jefferson's medical needs in violation of her Fourteenth Amendment rights as a pretrial detainee. Specifically, the complaint alleges Jefferson arrived at the Jail in mid-October 2013, and Jefferson began complaining of rectal and abdominal pain on October 19, 2013. The complaint asserts Jefferson requested on numerous occasions to see a doctor and filed at least one medical grievance, and she finally saw an ACH doctor on October 29, 2013. However, the complaint alleges the doctor misrepresented Jefferson's condition in his
The complaint states Jefferson's condition worsened over the following days, and she exhibited sweating and labored breathing. On the morning of October 31, 2013, Jefferson allegedly saw an ACH nurse and reported her condition, but the nurse sent her back to her cell. That evening, despite ACH personnel knowing of her early morning complaint, Jefferson passed out in her cell while complaining of extreme abdominal pain. An hour later, ACH personnel called an ambulance as Jefferson was nonresponsive.
The complaint states Jefferson died that day as a result of complications related to a bowel obstruction, yet an autopsy reveals that Jefferson died of cardiomyopathy. The autopsy also diagnosed Jefferson with hypertensive cardiovascular disease and blunt force injuries in the right upper extremity and lower extremities. (Doc. 95-1 at 125).
Count I of the complaint alleges a claim of deliberate indifference to serious medical needs, pursuant to 42 U.S.C. § 1983, against all individual defendants. Count I alleges certain individual defendants, including Dorning and specific ACH employees, act as supervisory officials for the jail and failed to fulfill their responsibility for development and implementation of policies and procedures for medical care. Count I further argues these individuals' action and inaction established unconstitutional customs and policies regarding the provision of medical care. Count I states Madison County intentionally refused to adequately fund medical care with deliberate indifference to the serious medical needs of inmates such as Jefferson. Finally, Count I alleges Dorning remains liable for the acts of ACH and its policymakers, and the defendants' conduct caused Woods to suffer physical and emotional injuries that led to her death.
Count II of the complaint alleges state law claims of negligence and wantonness against individual ACH defendants and unknown ACH employees. Specifically, Count II alleges ACH employees involved with Jefferson's care owed a duty to satisfy the standard of care applicable to inmates and/or to ensure those under their supervision were adequately trained regarding the proper care of such inmates, and these employees negligently and/or wantonly violated this standard of care. Furthermore, Count II states that because ACH personnel acted within the scope of their employment, defendant ACH remains liable for their negligence and/or wantonness.
Madison County, Dorning, and ACH retained separate counsel to defend the Jefferson action, and the parties ultimately reached a settlement. Evanston and OneBeacon separately contributed to the settlement of the individual claims against their respective insureds. Rich states that OneBeacon decided to settle based on the allegations in the Jefferson complaint and the risk and exposure to the insurer and its insureds. The court dismissed the action on July 25, 2017. (Doc. 99-8).
On May 16, 2014, Rich sent a letter to Johnson that attached correspondence from an attorney on behalf of Whitney Foster. (Doc. 108-2). The letter stated that Foster suffered injuries while she was an inmate at the Jail in April 2014. The letter also served a notice of Dorning's demand for defense and indemnification pursuant to the Agreement, and a request that ACH provide notice to the insurer. (Id.) This letter also requests that ACH's insurer add Dorning as an "additional insured." On
On March 16, 2016, Whitney Foster ("Foster") commenced a civil action in the United States District Court for the Northern District of Alabama (No. 5:16-cv-0521-MHH). The claims below stem from the most recent version of the complaint, filed June 8, 2017. (Doc. 99-9).
The complaint alleges the defendants — including Madison County, Dorning, and ACH — acted deliberately indifferent to Foster's medical needs in violation of her Fourteenth Amendment rights as a pretrial detainee. Specifically, the complaint alleges Foster arrived at the Jail on April 4, 2014. Documentation from ACH personnel indicated the "Methadone Clinic" in Huntsville, Alabama, was treating Foster, and Foster expressed she was experiencing methadone withdrawal symptoms. The complaint asserts none of the defendants verified this information, despite the fact ACH personnel documented the information from their interview with Foster. The complaint further states that within a week of Foster's arrival at the Jail, she displayed visible signs of weakness and methadone withdrawal that worsened daily. Foster avers that although the defendants knew she suffered from withdrawal, they did nothing to help her.
The complaint avers ACH personnel took actions that worsened Foster's condition and inaccurately reported blood pressure numbers that Foster exhibited. On April 21, 2014, Foster's cellmate called for medical assistance because Foster was shaking and sweating, and ACH personnel placed Foster under medical observation. The complaint alleges correctional personnel harassed and ridiculed Foster while she endured numerous strokes and seizures, and individual correctional officers left her sprawled on a floor during a commissary visit. The complaint further alleges a medical nurse continuously picked up and dropped Foster while yelling at her. At some point thereafter, ACH and correctional personnel physically placed Foster in a shower because she urinated on herself.
On April 22, 2014, another inmate requested emergency assistance for Foster because she was "twitching" in her bunk. Correctional personnel assisted Foster into a wheelchair and took her to triage with ACH personnel. ACH personnel placed Foster under medical observation, yet her condition worsened. The following day, after both correctional and ACH personnel observed Foster's worsening symptoms, they sent her to Huntsville Hospital for treatment due to signs of a stroke. The complaint alleges Foster arrived at the hospital with high blood pressure readings and marks indicating she had been beaten. Foster remained in the hospital for three weeks, and hospital personnel diagnosed her with Posterior Reversible Encephalopathy Syndrome (PRES). The complaint alleges Foster struggles with severe physical and mental ramifications from PRES.
Count I of the complaint alleges a claim of deliberate indifference to serious medical needs, pursuant to 42 U.S.C. § 1983, against all defendants. Count I alleges certain defendants, including Madison County, Dorning, and specific ACH employees, created and perpetuated deliberately indifferent customs or policies regarding the serious medical needs of prisoners, such as Foster. Count I clarified Foster is suing Madison County only for its deliberate indifference to the constitutional rights of
Count II of the complaint alleges a claim of conspiracy to violate civil rights, pursuant to 42 U.S.C. § 1983, against Madison County, Dorning, and other County and ACH individuals. Specifically, Count II alleges a conspiracy existed between the individuals and entities that resulted in the actual denial of Foster's constitutional right to medical care for her serious medical needs.
Count III alleges a claim of negligent medical practice against ACH and ACH employees pursuant to the Alabama Medical Liability Acts. (Ala. Code §§ 6-5-480, et seq.). Count III alleges ACH, its supervisors, and its employees negligently breached its duty to follow the reasonable care standard in their medical treatment of Foster. Furthermore, Count III states ACH, as an entity, remains vicariously liable for the negligent conduct of its supervisors and employees under the doctrines of respondeat superior, apparent agency, nondelegable duties, and other doctrines.
Count IV alleges a state law claim of negligent correctional care against Madison County and individual correctional officers. Count IV alleges Madison County negligently funded the Jail, and this underfunding contributed to Foster's injuries and damages.
Count V alleges a state law claim of wantonness against all defendants, except Dorning and another County individual. Count V alleges that defendants consciously took actions and/or failed to take actions with the knowledge that Foster would incur injuries. Furthermore, Count V states that this wanton conduct led to the direct and proximate result of Foster incurring the injuries. Count V also alleges ACH, as an entity, remains vicariously liable for the wanton conduct of its supervisors and employees under the doctrines of respondeat superior, apparent agency, nondelegable duty, and other doctrines.
Finally, Count VI alleges a state law claim of civil conspiracy against Madison County, ACH, and an individual ACH employee. Specifically, Count VI alleges a conspiracy existed between Madison County, ACH, and other ACH employees which resulted in the actual denial of Foster's constitutional right to medical care for her serious medical needs.
Madison County, Dorning, and ACH retained separate counsel to defend the Foster Complaint. The Foster case remains pending. (Memorandum Opinion, Foster v. Advanced Correctional Healthcare Inc. et al, No. 5:16-cv-0521-MHH (N.D. Ala. Sept. 21, 2018), ECF No. 108).
On July 14, 2016, Roy Lee Davis ("Davis") commenced a civil action in the U.S. District Court for the Northern District of Alabama (No. 5:16-cv-1166-AKK). The claims below stem from the most recent version of the complaint, filed January 30, 2017. (Doc. 99-14). ("Davis Complaint").
The nature of the Davis Complaint alleges the defendants — including Madison County, Dorning, and ACH — acted deliberately indifferent to Davis's medical needs in violation of his Fourteenth Amendment rights as a pretrial detainee. Specifically, the complaint alleges Davis arrived at the Jail on July 17, 2014. The Davis Complaint alleges that over the succeeding days, Davis began experiencing withdrawal symptoms, yet neither ACH nor County personnel identified him as a person likely to experience withdrawal. On July 21, 2014, ACH personnel examined Davis after his symptoms worsened and identified him as experiencing severe delirium tremens (DTs). That evening, ACH
The Davis Complaint states that over the succeeding two days, Davis's condition deteriorated, and numerous ACH and County personnel observed him during this time period. By July 23, 2014, Davis was mainly unresponsive and could not walk. Only July 24, 2014, Jail management personnel contacted court personnel to inquire about releasing Davis to avoid incurring the costs of sending him to the hospital. Upon release, Davis's family transported him to Madison Hospital.
Count I of the complaint alleges a claim of deliberate indifference to serious medical needs, pursuant to 42 U.S.C. § 1983, against all defendants except Dorning. Count I alleges that certain individual defendants, including Dorning and specific ACH employees, act as supervisory officials for the jail and failed to fulfill their responsibility for development and implementation of policies and procedures for medical care at the Jail. Count I further argues these individuals' action and inaction established unconstitutional customs and policies regarding the provision of medical care at the Jail. Count I alleges ACH, as an entity, remains liable because its customs and policies caused the violation of Davis's rights. Count I states Madison County intentionally refused to adequately fund medical care with deliberate indifference to the serious medical needs of inmates such as Davis. Finally, Count I alleges Dorning remains liable for the acts of ACH and its policymakers, as he delegated his final policymaking authority to ACH, and the defendants' conduct caused Woods to suffer physical and emotional injuries that led to his death.
Count II of the complaint alleges state law claims of negligence and wantonness against individual ACH defendants and unknown ACH employees. Specifically, Count II alleges ACH employees involved with Davis's care owed a duty to satisfy the standard of care applicable to inmates and/or to ensure those under their supervision were adequately trained regarding the proper care of such inmates, and that these employees negligently and/or wantonly violated this standard of care. Furthermore, Count II states that because ACH personnel acted within the scope of their employment, defendant ACH, as an entity, remains liable for their negligence and/or wantonness.
On July 20, 2016, Rich sent a letter to Johnson that served as a notice of demand for indemnification pursuant to the Agreement. Furthermore, the letter requested ACH provide notice to its insurer. Madison County, Dorning, and ACH retained separate counsel to defend the Davis Complaint. On July 31, 2018, the court entered a Memorandum Opinion and Final Judgment dismissing with prejudice all claims against all defendants.
Although the County and Dorning issued letters to ACH demanding a defense and indemnification for each of the five underlying cases, the County never directly contacted Evanston regarding any of the actions. (Doc. 95-2 at 139-140). After ACH first notified Evanston of the Listau case, Evanston reached out to its claims service manager, Markel. Markel retained the law firm Hand Arendall to review coverage, and Hand Arendall subsequently sent a letter to Rich and Dorning on October 27, 2014. The letter states that the Listau Complaint alleged claims against the County and Dorning that arose from their own actions, yet Evanston would "nonetheless defend Madison County and Sheriff Dorning in this matter at this time subject to a full and complete reservation of any and all rights." (Doc. 96-5 at 12). Evanston appointed an attorney to defend the County and Dorning in this matter.
On January 15, 2015, Hand Arendall sent another letter to Rich and Dorning in response to the filings of the Woods and Jefferson Complaints. Although the letter rendered statements similar to the October 2014 letter, it also stated:
(Doc. 96-5 at 24).
The letter stated that the Listau, Woods, and Jefferson Complaints "also make independent allegations against Madison County and Sheriff Dorning based on its or his own conduct that are not covered by the [Evanston] Policy." (Id. at 22). Thus, because OneBeacon's policy covered direct actions by Dorning and the County, and the Evanston Policy only covered Dorning's and County's liability on the basis of ACH's conduct, Evanston proposed that Dorning and the County consent to OneBeacon and Evanston each paying half of the defense costs. (Id. at 24). This offer never culminated into a formal proposal, and the County rejected the offer. Presumably, OneBeacon paid all of Plaintiffs' defense costs in the Underlying Actions. OneBeacon also funded the County and Dorning's share of settlement in the Listau, Woods, and Jefferson cases.
In early 2015, ACH and Plaintiffs encountered several obstacles while discussing the possible renewal of the Healthcare Agreement. On March 18, 2015, ACH's in-house counsel, Jessica Young, sent a letter to Rich upon reviewing the primary insurance and additional named insured questions with Evanston. In the letter, Young stated ACH had named the County as an additional insured on ACH's insurance policies since 2006. Young states that although ACH never intended to be deemed responsible for the negligent acts and omissions of County employees, ACH now understood that the Agreement read otherwise.
Nevertheless, Young informed Rich the County would not receive any coverage
On April 22, 2015, Rich sent a letter to Johnson and Young reminding them of Rich's prior March 2015 letter listing several demands. These demands included: (1) acknowledge its obligation to pay all claims, litigation costs, attorney fees, and any judgment or settlement money for which the County or Dorning is or may become liable for or obligated to pay in the Woods, Jefferson, or Listau actions; (2) immediately obtain primary insurance covering the County and Dorning as named insureds for all claims that may arise out of the course and scope of the Agreement; and (3) acknowledge its indemnity obligations under the Agreement as it relates to the Woods, Jefferson, or Listau actions. (Doc. 103-1 at 2). Rich's letter states that ACH neither cured its breach of the Agreement nor complied with the County's and Dorning's demands. Therefore, Rich states in the letter that "ACH is hereby notified that as of Monday, June 22, 2015, ACH's services at the [Jail] will end." (Id. at 3). The Agreement between the County, Dorning, and ACH ultimately expired in June 2015. (Sheriff Depo., 95:1-6).
On September 7, 2016, Plaintiffs' counsel contacted ACH's counsel via letter and notified him of the upcoming mediation of the Listau, Woods, and Jefferson actions. (Doc. 103-4 at 2-3). The letter also served as another demand for indemnification for Plaintiffs. ACH never responded to the request.
After the filing of the Davis Complaint in July 2016, Markel retained a different law firm — Swift, Currie, McGee & Hiers LLP ("Swift Currie") — to review coverage on behalf of Evanston. On October 24, 2016, Swift Currie sent a letter to Rich and Dorning communicating Evanston's agreement to defend the Davis action under a reservation of rights. (Doc. 99-25). The letter stated independent allegations existed against both the County and Dorning based on their own conduct, and Evanston's Policy likely would not cover some of these allegations. The letter further explained the County and Dorning would remain responsible for acquiring insurance to protect its or his interests in all non-covered claims.
On March 13, 2017, Judge Abdul Kallon issued a Memorandum Opinion in the Davis case that dismissed several claims and assessed the remaining survivable claims. (Memorandum Opinion & Final Judgment, Davis v. Madison County Alabama et al., No. 5:16-cv-1166 — AKK (N.D. Ala. July. 21, 2018), ECF No. 102). The surviving claims included the claim of deliberate indifference based on inadequate funding against Madison County. On June 29, 2017, Swift Currie sent a letter to the attorney representing Madison County, David Hodge. This letter served as Evanston's intent to withdraw its defense of the County, and repeated the offer to reimburse OneBeacon for half of the defense expenses incurred on the County's behalf up through March 13, 2017.
After the filing of the Foster Complaint in March 2016, Markel retained Swift Currie again to review coverage on behalf of Evanston. On February 23, 2017, Swift Currie sent a letter to Rich and Dorning containing similar reservation-of-rights language in Evanston's agreement to provide a defense to the County and Dorning.
On October 2, 2015, Plaintiffs filed a civil action against Evanston and ACH in the
Evanston argues that its policies including Plaintiffs as additional insureds do not provide coverage for the Underlying Actions' § 1983 claims against Plaintiffs.
Pursuant to Alabama statute "[e]very insurance contract shall be construed according to the entirety of its terms and conditions as set forth in the policy and as amplified, extended or modified by any rider, endorsement or application which is a part of the policy." Ala. Code § 27-14-17(a). "Insurance contracts, like other contracts, are construed so as to give effect to the intention of the parties, and, to determine this intent, a court must examine more than an isolated sentence or term; it must read each phrase in the context of all other provisions." Attorneys Ins. Mut. of Alabama, Inc. v. Smith, Blocker & Lowther, P.C., 703 So.2d 866, 870 (Ala. 1996) (citation omitted). When its intention is clear and unambiguous, the court shall enforce an insurance policy as written. Sentinel Ins. Co. v. Alabama Mun. Ins. Corp., 188 So.3d 640, 644 (Ala. 2015) (citation omitted). Furthermore, "[i]f the terms of an insurance policy are plain and unambiguous, the interpretation of the contract and its legal effect are questions of law." Id. (citing Nationwide Ins. Co. v. Rhodes, 870 So.2d 695, 697 (Ala. 2003)).
"`In determining whether an ambiguity exists, a court should apply the common interpretation of the language alleged to be ambiguous.... This means that the terms of an insurance policy should be given a rational and practical construction.'" Porterfield v. Audubon Indem. Co., 856 So.2d 789, 799 (Ala. 2002) (citations omitted). "The terms of an insurance policy are ambiguous only if the policy's provisions are reasonably susceptible to two or more constructions or there is reasonable doubt or confusion as to their meaning." State Farm Fire & Cas. Co. v. Slade, 747 So.2d 293, 308-09 (Ala. 1999) (citation omitted). "`Where there is added to a printed form a written or typewritten clause, that clause should be considered as superseding those clauses in conflict which are printed in the form.'" Atlanta Cas. Co. v. Russell, 798 So.2d 664, 667 (Ala. 2001) (citations omitted). "[I]n the absence of statutory provisions to the contrary, insurers have the right to limit their liability by writing policies with narrow coverage." St. Paul Mercury Ins. Co. v. Chilton-Shelby Mental Health Ctr., 595 So.2d 1375, 1377 (Ala. 1992).
Pursuant to the referenced legal standard, Evanston's endorsements including Plaintiffs as Additional Insureds are not ambiguous. The 2013 Additional Insured endorsement provides as follows:
(Doc. 93-6 at 20) (emphasis added). Therefore, the 2013 policy's Additional Insured endorsement, as do the like endorsements in ACH's other policies with Evanston regarding the Plaintiffs, limits coverage to "liability in rendering Professional Services caused by the negligence of the Named Insured," the Named Insured referencing
However, the Underlying Actions' claims against Plaintiffs — whether against Plaintiffs directly or via delegation of their duties to ACH — sound in 42 U.S.C. § 1983 constitutional tort liability, not mere negligence (save for one claim in the Foster action, which the court will dispose of momentarily). Section 1983 does not provide the substantive standards for constitutional violations. Daniels v. Williams, 474 U.S. 327, 328, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986) ("§ 1983 contains no independent state-of-mind requirement"). Rather, courts must rely upon the underlying constitutional torts to provide the applicable standards. In this context, the Eighth Amendment's cruel and unusual punishment clause proscribes the "deliberate indifference to serious medical needs" as offensive to the "evolving standards of decency." Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Accordingly,
Estelle, 429 U.S. at 105-06, 97 S.Ct. 285; see also Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003) ("`However, not every claim by a prisoner that he has not received adequate medical treatment states a violation of the Eighth Amendment.'") (quoting McElligott v. Foley, 182 F.3d 1248, 1254 (11th Cir. 1999)).
Although the Underlying Actions' claims for inadequate medical care arise under the Fourteenth Amendment's Due Process Clause because the plaintiffs therein were pretrial detainees, the Eighth Amendment's deliberate indifference standard applies to the plaintiffs' due process claims of inadequate medical care. See Taylor v. Adams, 221 F.3d 1254, 1257 n.3 (11th Cir. 2000) (inadequate medical care claims "are analyzed in identical fashion regardless of whether they arise under the Due Process Clause or the Cruel and Unusual Punishment Clause") (citing Lancaster v. Monroe County, Alabama, 116 F.3d 1419, 1425 n. 6 (11th Cir. 1997), overruled on other grounds by LeFrere v. Quezada, 588 F.3d 1317 (11th Cir. 2009)). More critically, litigants cannot maintain Fourteenth Amendment due process claims on a negligence theory of recovery, regardless of the claim theory underlying the purported due process violation. See Porter v. White, 483 F.3d 1294, 1307 (11th Cir. 2007) ("`the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property'") (quoting Daniel, 474 U.S. at 328, 106 S.Ct. 662); see also Cty. of Sacramento v. Lewis, 523 U.S. 833, 849, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) ("the Constitution does not guarantee due care on the part of state officials; liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process") (citation omitted); Porter, 483 F.3d at 1308 ("`the protections of the Due Process Clause, whether procedural or substantive, are just not triggered by lack of due care'") (quoting Davidson v. Cannon, 474 U.S. 344, 348, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986)).
Based on the foregoing explication, Evanston's Additional Insured endorsements do not contemplate coverage of § 1983 Due Process Clause claims. As reviewed, the plain, unambiguous meaning of the
To counteract Evanston's summary judgment showing, Plaintiffs contend that Evanston's failure to deliver the applicable policies to them precludes enforcement of the limitation in the Additional Insured Endorsement. Evanston retorts with several arguments against Plaintiffs' entreaty, only one of which definitively forecloses Plaintiffs' contention.
Alabama Code § 27-14-19 provides that "every policy shall be mailed or delivered to the insured or to the person entitled thereto within a reasonable period of time after its issuance ...." As construed by the Alabama Supreme Court, Section 27-14-19 "requires that the insurance policy be `mailed or delivered' to the purchaser of a policy and to the named insured, and that an insurer may be estopped from asserting conditions of, or exclusions from, coverage where such a purchaser or insured is prejudiced by the insurer's failure to comply with the statute." Brown Mach. Works & Supply Co. v. Ins. Co. of N. Am., 659 So.2d 51, 61 (Ala. 1995); see also W.G. Yates & Sons Const. Co. v. Zurich Am. Ins. Co., No. CIV.A. 06-0803-WS-B, 2008 WL 161921, at *8 (S.D. Ala. Jan. 8, 2008) ("Alabama courts have stringently enforced [§ 27-14-19's] requirement, and under certain circumstances have imposed draconian penalties on insurers who fail to comply."). Plaintiffs maintain that the foregoing interpretation of § 27-14-19 precludes enforcement of the Additional Insured endorsement (indisputably, Evanston did not deliver copies of its policies to Plaintiffs).
At first blush, § 27-14-19 appears to apply to Evanston's policies. Alabama Code § 27-14-1 defines the term "policy" as a "written contract of, or written agreement for, or effecting, insurance, by whatever name called, and includes all clauses, riders, endorsements, and papers attached,
Moreover, disputable issues of fact exist whether Evanston's failure to deliver the policies to Plaintiffs prejudiced them. See Nance v. Southerland, 79 So.3d 612, 622 (Ala. Civ. App. 2010) ("Prejudice obviously may occur when an insured has no actual or constructive knowledge of a limitation on, or exclusion from, coverage until delivery of the policy ....") (citing Clarke, 728 So.2d 135); Akpan v. Farmers Ins. Exch., Inc., 961 So.2d 865, 871 (Ala. Civ. App. 2007) (plaintiffs did not establish prejudice because they received the policy more than ten months before the insurer enforced a duty to submit to examinations under oath, notwithstanding failure to originally deliver policies upon establishing coverage); New Hampshire Ins., Co. v. Flowers Ins. Agency, LLC, No. 1:09-CV-730-MEF, 2011 WL 1740135, at *6 (M.D. Ala. May 5, 2011) ("prejudice can occur where the insured has no actual or constructive knowledge of the exclusions") (citations omitted); W.G. Yates & Sons Const. Co. v. Zurich Am. Ins. Co., No. CIV.A. 06-0803-WS-B, 2008 WL 161921, at *9 (S.D. Ala. Jan. 8, 2008) (plaintiff did not establish prejudice from failure to deliver policy because no indication review of policy would have alerted plaintiff coverage unavailable). In the case at bar, genuine issues of fact demonstrate Plaintiffs did not know Evanston's policies only covered ACH's alleged negligence, which contrasts with the coverage accorded in the Agreement.
Moreover, disputable issues of fact remain as to whether additional insureds such as Plaintiffs may rely upon § 21-14-19 for relief:
Brown Mach. Works, 659 So.2d at 60. In the circumstances at bar, surely a genuine issue of fact arises as to whether Plaintiffs as additional insureds constitute more than incidental beneficiaries entitled to delivery of Evanston's policies. This question involves fact inquiries, especially as the Agreement obligated ACH to provide Plaintiffs copies of the pertinent policies.
However, § 27-14-19's estoppel bar still does not apply to Evanston's Additional Insured endorsements. First, the legal precedent interpreting § 27-14-19 specifically imposes estoppel of "conditions" and "exclusions," not coverage. See Brown Mach. Works, 659 So.2d at 61. This choice of language may be critical, as longstanding Alabama precedent does not permit traditional estoppel doctrine to enlarge a policy's coverage. See Payne v. Mut. Sav. Life Ins. Co., 58 So.3d 108, 110 (Ala. 2010) ("Coverage under an insurance policy cannot be created or enlarged by waiver or estoppel and, if there is no ambiguity, it is the duty of the court to enforce the policy as written.") (citing Home Indem. Co. v. Reed Equip. Co., 381 So.2d 45, 51 (Ala. 1980)); McGee v. Guardian Life Ins. Co., 472 So.2d 993, 996 (Ala. 1985) ("Although the doctrine of waiver may extend to practically every ground on which an insurer may deny liability based on forfeiture, the doctrine is not available to bring within the coverage of a policy risks not covered by its terms or risks expressly excluded therefrom.") (quoting Reed Equip., 381 So.2d at 50-51); Allstate Ins. Co. v. Moore, 429 So.2d 1087, 1089 (Ala. Civ. App. 1983) ("Waiver or estoppel can only have a field of operation when the subject-matter is within the terms of the contract.") (citations omitted). Evanston's Additional Insured endorsements limit Plaintiffs' coverage to the negligence of ACH; this language does not equate to the highly technical insurance terms "exclusions" and "conditions."
Most importantly, as Evanston demonstrated § 27-14-19 only applies to policies issued for delivery and delivered in Alabama. See Ala. Code 27-14-2 ("This chapter applies as to all insurance contracts and annuity contracts other than... (2) Policies or contracts not issued for delivery in this state nor delivered in this state ...."). As Evanston demonstrated, there exists no genuine dispute of fact that it issued for delivery, and delivered, the policies regarding this case in the State of Illinois. (Doc. 93-7 at 11). Although some decisions in other states construed similar statutory provisions to afford constructive delivery in certain circumstances, Plaintiffs did not lodge any arguments nor submit any evidence of such delivery in this case. See Tillman ex rel. Estate of Tillman v. Camelot Music, Inc., 408 F.3d 1300, 1303-04 (10th Cir. 2005) (Under Oklahoma law, delivery of insurance policy to Oklahoma Department of Insurance was a constructive "delivery" of policy to owner, within meaning of Oklahoma statute requiring policy to be "delivered or issued for delivery within the state"); Blue Cross of Fla.,
To conclude this portion of the opinion, although unnecessary one notes Evanston's other arguments would not warrant summary judgment. First, a genuine issue of disputable fact would exist as to whether Plaintiffs prevented Evanston from covering the Underlying Actions. Evanston contends Plaintiffs prevented it from sharing pro rata in defense costs with Plaintiffs' primary liability insurer, OneBeacon. Evanston's contention constitutes an estoppel affirmative defense upon which it secures the burden of persuasion. Plaintiffs tendered evidence of notice, demand, and non-payment regarding Evanston's obligations under its policies, (see Doc. 99-17 at 74; Doc. 93-12 at 92-93; Doc. 105-5; Doc. 105-6; Doc. 105-9; Doc. 105-17 at 4), so the trier of fact would have undertaken the task of resolving the dispute.
Second, OneBeacon's subrogation rights would not prevent Plaintiffs from recovering on their own damages.
Third, genuine issues of fact would prevent Evanston from prevailing on its policies' voluntary payment provisions. See Twin City Fire Ins. Co. v. Ohio Cas. Ins.
Of course, notwithstanding the foregoing findings Evanston prevails on its summary judgment motion because its Additional Insured endorsements do not cover Plaintiffs for ACH's alleged, § 1983 liability. Therefore, the court will
The Alabama Supreme Court recognizes two methods by which Plaintiffs may establish a bad faith refusal to pay an insurance claim. State Farm Fire & Cas. Co. v. Slade, 747 So.2d 293, 306 (Ala. 1999); Employees' Benefit Ass'n v. Grissett, 732 So.2d 968, 976 (Ala. 1998). In this action, Plaintiffs plead both "ordinary" and "extraordinary" theories of bad-faith liability against Evanston. (Doc. 73 at 31). Based on the foregoing summary judgment ruling on the breach-of-contract claim, and for other reasons discussed herein, Evanston merits summary judgment on both methods.
Plaintiffs bear a heavy burden when asserting an "ordinary" bad-faith claim. LeFevre v. Westberry, 590 So.2d 154, 159 (Ala. 1991)(citing National Sav. Life Ins. Co. v. Dutton, 419 So.2d 1357, 1362 (Ala. 1982)). To recover on such a claim, Plaintiffs must prove: "(1) the existence of an insurance contract; (2) an intentional refusal to pay the claim; and (3) the absence of any lawful basis for refusal and the insurer's knowledge of that fact or the insurer's intentional failure to determine whether there is any lawful basis for its refusal." Acceptance Ins. Co. v. Brown, 832 So.2d 1, 16 (Ala. 2001). "In short, [Plaintiffs] must go beyond a mere showing of nonpayment and prove a bad faith nonpayment, a nonpayment without any reasonable ground for dispute." National Sec. Fire & Cas. Co. v. Bowen, 417 So.2d 179, 183 (Ala. 1982).
Plaintiffs' burden to establish the absence of a debatable reason for insurance denial represents a high bar: "in the [`ordinary'] case, a plaintiff's bad-faith claim may not be submitted to the jury unless she shows that she is entitled to a directed verdict on the contract claim." Alfa Mutual Fire Ins. Co. v. Thomas, 738 So.2d 815, 822 (Ala. 1999). Therefore, "[i]f any one reason for denial of coverage is at least `arguable,' [a] court need not look any further, and a claim for bad faith refusal to pay will not lie." Weaver v. Allstate Ins. Co., 574 So.2d 771, 774 (Ala. 1990)(quoting McLaughlin v. Ala. Farm Bureau Mut. Cas. Ins. Co., 437 So.2d 86, 91 (Ala. 1983)(holding that to succeed at summary judgment, the defendant insurer maintains merely the burden of demonstrating "that
Evanston successfully accomplished summary judgment on Plaintiffs' breach-of contract claim, striking a blow to Plaintiffs' ability to assert their entitlement to a directed verdict. Therefore, Plaintiffs' "ordinary" bad-faith claim fails.
"However, `keenly aware of the fact that there [existed] countervailing policy considerations that weighed in favor of an insured's right to have his claim properly evaluated and promptly paid by the insurer,' [the Alabama Supreme Court] recognized `a different standard to be applied in certain unusual or extraordinary cases.'" Thomas v. Principal Fin. Grp., 566 So.2d 735, 742-43 (Ala. 1990)(emphasis added). "The rule in [extraordinary] cases [of bad faith] dispensed with the predicate of a preverdict JML for the plaintiff on the contract claim if the insurer had recklessly or intentionally failed to properly investigate a claim or to subject the results of its investigation to a cognitive evaluation." Grissett, 732 So.2d at 976.
To recover under a theory of an "extraordinary" case of bad faith failure to investigate an insurance claim, an insured must prove: (1) that the insurer failed to properly investigate the claim or to subject the results of the investigation to a cognitive evaluation and review and (2) that the insurer breached the contract for insurance coverage with the insured when it refused to pay the insured's claim. Shelter Mut. Ins. Co. v. Barton, 822 So.2d 1149, 1160 (Ala. 2001). The Alabama Supreme Court limits these "extraordinary" cases to circumstances in which the plaintiff produced substantial evidence portraying the insurer (1) intentionally or recklessly failed to investigate the plaintiff's claim; (2) intentionally or recklessly failed to properly subject the plaintiff's claim to a cognitive evaluation or review; (3) created its own debatable reason for denying the plaintiff's claim; or (4) relied on an ambiguous portion of the policy as a lawful basis to deny the plaintiff's claim. Slade, 747 So.2d at 306-07.
Regardless whether the claim proceeds on an "ordinary" or "extraordinary" theory, the tort of bad faith still requires the absence of a legitimate reason for insurance denial. State Farm and Fire Cas. Co. v. Brechbill, 144 So.3d 248, 258 (Ala. 2013). Where the "[insurer's] investigation established a legitimate or arguable reason for refusing to pay [the insured]'s claim, [that] is all that is required." Weaver v. Allstate Ins. Co., 574 So.2d 771, 774 (Ala. 1990).
Evanston secures summary judgment on Plaintiffs' "extraordinary" bad-faith claim by demonstrating the absence of a genuine issue of material fact regarding the following factors: (1) the Policy's applicable provisions remain unambiguous; (2) Evanston properly investigated Plaintiffs' claims; and (3) Evanston relied on an arguable basis for limiting and later denying Plaintiffs' demands for defense and indemnification.
The Additional Insured endorsement grants coverage to "State, Municipal Department of Corrections, Office of the Sheriff, or other Officials to whom [ACH] is obligated by valid written contract to provide coverage as an additional insured." (Doc. 94-4 at 28). As determined regarding Plaintiffs' breach-of-contract claims, although the Agreement requires ACH to provide coverage to the Plaintiffs, the Additional Insured endorsement limits coverage
Plaintiffs insist that this limitation conflicts with the Civil Rights endorsement, which provides coverage for allegations of civil rights violations pursuant to § 1983 that stem from the provision of medical services. Although Plaintiffs correctly describe the scope of the Civil Rights endorsement, its scope does not overlap with the limitations placed on Plaintiffs through the Additional Insured endorsement. Under the Additional Insured endorsement, Evanston insures Plaintiffs only for liability that stems from negligence in ACH's performance of "Professional Services."
To bolster their bad-faith claim against Evanston, Plaintiffs argue Evanston failed to properly investigate their claims. Specifically, Plaintiffs fault Jagady Blue, Evanston's claims manager, for determining coverage by reviewing the allegations in the Underlying Actions' complaints. (Doc. 96-4 at 117-120). "An insurance company's duty to defend its insured is determined by the language of the insurance policy and by the allegations in the complaint giving rise to the action against the insured." American States Insurance Co. v. Cooper, 518 So.2d 708 (Ala. 1987)(internal citation omitted). Therefore, "it is necessary to look first to the allegations in the complaints and second to the language of the insurance policies." Id. Blue testified that he based each claim decision in this action on the underlying complaint, the Agreement, and the Policy. (Doc. 93-10 at 163, ll. 8-12; at 187, ll. 12-18).
Evanston further supports the adequacy of its investigation via the detailed claims letters corresponded between Evanston's and Plaintiffs' representatives. (Doc. 95-3 at 10-27 (Letter re: Foster Case); Doc. 95-14 at 6-15 (Letter re: Listau Case); Doc.
Furthermore, Evanston attempted to reach a cost-sharing agreement for several of the Underlying Actions. Blue and Barbara McConnell of OneBeacon exchanged several emails with Rich in late December 2014, indicating that Evanston's designation of the policy as "excess" was unintentional and proposing a 50/50 split on indemnity and defense costs under Evanston's Reservation of Rights. (Doc. 95-8 at 4-7). Although a proposal never fully culminated, Evanston's attempts counter Plaintiffs' claim of bad faith.
Finally, Evanston based its decisions on lawful and adequate reasons. Evanston utilized the Policy's clear language, compared it to the allegations in the complaints of each Underlying Action, and integrated both documents in its analysis. Evanston's investigation established a legitimate reason to not defend and indemnify Plaintiffs in certain Underlying Actions, thereby defeating Plaintiffs' bad faith claim.
Evanston's actions do not qualify as the intentional or reckless actions necessary to prove an "extraordinary" bad-faith claim. The court finds that Plaintiffs fail to satisfy its burden in countering Evanston's evidence that it properly investigated the requests for defense and indemnification.
ACH moves for summary judgment against Plaintiffs' breach-of-contract claim regarding the parties' Agreement for ACH to procure insurance coverage for Plaintiffs. Although Plaintiffs list several other alleged breaches of the Agreement, most of them, save the indemnity claim, coalesce under the allegation ACH failed to procure particular insurance coverage. The alleged failures — to secure Plaintiffs as Additional Named Insureds; to ensure primary insurance coverage for Plaintiffs; to insure all claims arising out of the course and scope of the Agreement; to furnish Plaintiffs a copy of the policy; to recompense deductible amounts paid on other policies for claims related to the Agreement; and to pay all costs if ACH's insurance company were to deny or withdraw coverage — all converge under Plaintiffs' failure-to-procure, breach-of-contract claim. As the following analysis portrays, genuine issues of material fact regarding some aspects of Plaintiffs' claim precludes summary judgment in ACH's favor.
To recover on a breach-of-contract claim, "a party must establish: (1) the existence of a valid contract binding the parties; (2) the plaintiff's performance under the contract; (3) the defendant's nonperformance; and (4) damages." Capmark Bank v. RGR, LLC, 81 So.3d 1258, 1267 (Ala. 2011) (citation omitted). The primary issues on ACH's summary judgment motion involve its performance under the Agreement and the nature of any purported damages. Whether ACH performed properly incites interpretation of the Agreement's provision regarding the procurement of insurance.
"Under general Alabama rules of contract interpretation, the intent of the contracting parties is discerned from the whole of the contract. Where there is no indication that the terms of the contract are used in a special or technical sense,
"The question whether a contract is ambiguous is for a court to decide.... As long as the contractual terms are clear and unambiguous, questions of their legal effect are questions of law." Hall v. Envtl. Litig. Grp., P.C., 248 So.3d 949, 958 (Ala. 2017) (citations and quotation marks omitted). In construing contractual language, "the mere fact that a word or a phrase is not defined in a document does not mean that the word or phrase is inherently ambiguous.... In the absence of a definition, the court should construe the word or phrase according to the meaning a person of ordinary intelligence would reasonably give it." Id. (citations, quotation marks, and internal alterations omitted).
"A term in a contract is ambiguous only if, when given the context, the term can reasonably be open to different interpretations by people of ordinary intelligence." Once Upon a Time, 209 So.3d at 1098 (citations and quotation marks omitted). "If the court determines that the terms are unambiguous (susceptible of only one reasonable meaning), then the court will presume that the parties intended what they stated and will enforce the contract as written." Once Upon a Time, 209 So.3d at 1097 (citation omitted).
"On the other hand, if the court determines that the terms are ambiguous (susceptible of more than one reasonable meaning), then the court must use established rules of contract construction to resolve the ambiguity." Id. (citation omitted). If the application of such rules does not resolve the ambiguity, factual issues arise because "one must go beyond the four corners of the agreement" to examine "the surrounding circumstances, including the practical construction put on the language of the agreement by the parties to the agreement ...." FabArc Steel, 914 So.2d at 358 (citations omitted). "Where factual issues arise, the resolution of the ambiguity becomes a task for the jury." Id. (citation omitted).
Regarding the particular breach-of-contract claim at bar, "`[a]greements to procure insurance are generally enforceable under Alabama law, and a party who breaches such an agreement is liable for damages resulting from the failure to obtain the promised insurance.'" Doster Const. Co. v. Marathon Elec. Contractors, Inc., 32 So.3d 1277, 1284 (Ala. 2009) (quoting Goodyear Tire & Rubber Co. v. J.M. Tull Metals Co., 629 So.2d 633, 639 (Ala. 1993)); see also Turner v. Deutz-Allis Credit Corp., 544 So.2d 840, 844 (Ala. 1988) (citing cases for "the general principle that an action can lie for a breach of an agreement to insure"). "A contractual obligation to indemnify is distinct from a contractual obligation to procure insurance. Under an agreement to indemnify, the promisor assumes liability for all injuries and damages upon the occurrence of a contingency. In contrast, an agreement to obtain insurance involves the promisor's agreement to obtain or purchase insurance
There exist genuine issues of material fact whether ACH breached its obligation to procure particular insurance coverage for Plaintiffs. The Agreement states ACH "shall procure ... insurance providing coverage for claims ... asserted pursuant to 42 U.S.C. § 1983 ... that may arise out of the course and scope" of the parties' contract. (Doc. 94-5 at 22; Doc. 94-7 at 4). Immediately thereafter, the Agreement provides that Plaintiffs "shall be additional named insureds on the aforesaid policies of insurance." (Doc. 94-5 at 22; Doc. 94-7 at 4). The Agreement continues that "ACH's insurance coverage shall be primary," and ACH agreed "to pay on demand any deductible amount ... required by ... any insurance policy of Madison County ... on any claim made against Madison County, or the Sheriff ... as a result of any service from or related" to the contract. (Doc. 94-5 at 22; Doc. 94-7 at 4).
As an initial matter, there should be no dispute ACH did not perform its obligation to procure insurance coverage for the Plaintiffs against § 1983 claims, given the summary judgment ruling on Evanston's motion that its policies did not provide such coverage for Plaintiffs. That finding constitutes a matter of law that governs the interpretation of the Healthcare Agreement.
Nevertheless, the Agreement obligated § 1983 coverage for "claims that may arise out of the course and scope" of the contract, and the provision of payment of deductibles emanating from other policies likewise required that pertinent claims result from "any service from or related" to the contract. The plain and ordinary meaning of these terms requires § 1983 coverage against claims that incite the purpose of the Agreement — ACH's provision of medical care for Plaintiffs' detainees. See 44 C.J.S. Insurance § 420 ("In order to be entitled to an award of damages for a failure to procure insurance, however, plaintiff must establish a causal relation between the defendant's breach and the damages. Thus, a party may not recover damages unless the insurance, if it had been procured, would have covered the loss....") (footnotes omitted).
The parties dispute whether the Underlying Actions — in particular the claims against Plaintiffs — involve circumstances arising from ACH's provision of medical care. Upon reviewing the Underlying Actions, there exist genuine issues of material fact whether they assert § 1983 claims against Plaintiffs based upon ACH's provision of medical care to detainees, or whether they involve such claims against Plaintiffs for conduct unrelated to ACH's provision of medical care.
As discussed extensively in the Background, the first counts of the Underlying Actions consistently aver claims of deliberate indifference to serious medical needs, pursuant to 42 U.S.C. § 1983, against all defendants. They allege certain individual defendants, including Dorning and specific ACH employees, act as supervisory officials for the jail and failed to fulfill their responsibility for development and implementation of policies and procedures for medical care at the jail. Furthermore, the counts state Madison County intentionally refused to adequately fund medical care with deliberate indifference to the serious
In addition, there exists a genuine issue of material fact whether ACH performed its obligation under the Agreement to procure coverage with Plaintiffs as "additional named insureds" on the policies. This issue most appropriately influences any putative measure of damages if the trial factfinder deems ACH liable. Evanston's Additional Insured Endorsement lists Plaintiffs as Additional Insureds, yet, as reviewed, the pertinent policy does not cover § 1983 claims. Notwithstanding this finding, ACH essentially maintains it still escapes damages if it proves the Underlying Actions against Plaintiffs did not arise under the course or scope of, or in relation to, ACH's provision of medical care. ACH couches its interpretation on the terms "additional named insured," contending that the terms only require coverage for claims regarding the provision of medical care. Therefore, if the Underlying Actions only involve claims against the Plaintiffs for their own conduct, the failure to secure insurance for such claims caused no harm because the parties only contracted for Plaintiffs' "additional insured" status in relation to ACH's provision of medical care.
Plaintiffs contend otherwise, construing the terms "additional named insured" to require ACH to provide insurance coverage for Plaintiffs against all claims, regardless of such claims' relation to ACH's provision of medical care. Under such an interpretation, even if the Underlying Actions only involve claims against the Plaintiffs for their own conduct, the Agreement still obligated ACH to secure primary insurance coverage for such claims on Plaintiffs' behalf.
In this guise, the genuine issue of fact manifests. The Agreement is ambiguous because its "four corners" do not provide a basis for construing the meaning of "additional named insureds," and the factfinder must resort to facts external to the terms of the Agreement to discern the parties' intended meaning. Indeed, the parties provide sparse guidance as to the distinction between "additional insureds" and "additional named insureds." Although there exist some cases referencing the terms "additional named insureds," they provide no basis for deciphering the phrase. See e.g., McInnis Corp. v. Nichols Concrete Const., Inc., 733 So.2d 418, 421 (Ala. Civ. App. 1998) (mentioning "additional named insured"); Official Cargo Transp. Co. v. Underwriters at Lloyd's of London, 143 F. App'x 173, 175 (11th Cir. 2005)(same). And there exists no Alabama cases distinguishing the terms.
More readily, the distinction between the terms does not admit of a facile discernment. One commentator notes:
Douglas R. Richmond, The Additional Problems of Additional Insureds, 33 Tort & Ins. L.J. 945, 947-48 (1998) (footnotes omitted).
Another commentator notes:
Samir B. Mehta, Additional Insured Status in Construction Contracts and Moral Hazard, 3 Conn. Ins. L.J. 169, 172-73 (1997) (footnotes omitted).
Still another provides:
Terry J. Galganski, Andrea G. Woods, V. Samuel Laurin, Y. Lisa Colon-Heron, A Construction Lawyer's Top 10 Additional-Insured Considerations, Constr. Law., Fall 2010, at 5, 14.
As revealed, caselaw and the commentators abound in disarray as to any meaningful distinction between the terms. However, such confusion does not detract from the previous assessment of this issue. Even if a definitive legal meaning of the phrases eludes the interpreter's grasp, the parties argue that they effected diverging intentions in the Agreement, regardless of the nomenclature: either the Agreement required ACH to cover Plaintiffs for all claims, or the Agreement limited ACH's obligation to only cover Plaintiffs for claims emanating from the provision of medical care. There exists a genuine issue of fact on that issue reserved for the factfinder at trial.
To be sure, ACH argues that the "unavailability" of additional named insured coverage precludes enforcement of a failure-to-procure claim in this action. As an initial matter, ACH pens its argument on the testimony of one of its witnesses, which, of course, represents testimony the court must disregard at the summary-judgment stage. Reeves, 530 U.S. at 151, 120 S.Ct. 2097 ("[T]he court should give credence to the evidence favoring the nonmovant as well as that `evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses.'") Id. (citation omitted). Furthermore, one queries the basis for such an assertion given the findings by the afore-cited commentators and scholars that a definitive delineation of additional named insured status does not exist.
In any event, an even more concrete legal doctrine suppresses ACH's argument: litigants may not resort to a defense of unavailability in the contract breach realm. In support of its argument, ACH relies upon cases finding that the unavailability of certain types of insurance coverage defeats a plaintiff's failure-to-procure claim. See Hawk v. Roger Watts Ins. Agency, 989 So.2d 584, 590-91 (Ala. Civ. App. 2008); Express Oil Change, LLC v. ANB Ins. Servs., Inc., 933 F.Supp.2d 1313, 1350-51 (N.D. Ala. 2013). However, these cases buttress their findings on the claims at issue, namely negligent failure-to-procure insurance claims. Hawk, 989 So.2d at 590; Express Oil Change, 933 F.Supp.2d at 1350. Such negligence claims arise under the theory that
Cornett v. Johnson, 578 So.2d 1259, 1262-63 (Ala. 1991) (quoting Montz v. Mead & Charles, Inc., 557 So.2d 1, 4 (Ala.1987)) (other citations, quotation marks, and internal alterations omitted). The Hawk and Express Oil decisions determined that the
Plaintiffs' claim at bar, however, arises upon the asserted breach of a contract duty, not a tort-based duty, based upon the alleged failure of ACH to uphold a promise in the Agreement to procure insurance. "Alabama law does not recognize a tort-like cause of action for the breach of a duty created by a contract.... A negligent failure to perform a contract... is but a breach of the contract." Buckentin v. SunTrust Mortg. Corp., 928 F.Supp.2d 1273, 1290 (N.D. Ala. 2013) (citations, quotation marks, and internal alterations omitted). "[I]if there is a failure or refusal to perform a promise the action is in contract; if there is a negligent performance of a contractual duty or the negligent breach of a duty implied by law, such duty being not expressed in the contract, but arising by implication of law from the relation of the parties created by the contract, the action may be either in contract or tort." Citizens Bank & Tr. v. LPS Nat. Flood, LLC, 51 F.Supp.3d 1157, 1170 (N.D. Ala. 2014) (citation omitted). As the Alabama Supreme Court discerns:
Vines v. Crescent Transit Co., 264 Ala. 114, 85 So.2d 436, 439-40 (1955) (citations omitted); see also Brown-Marx Assocs., Ltd. v. Emigrant Sav. Bank, 703 F.2d 1361, 1371 (11th Cir. 1983) ("It is possible for a tort to arise in Alabama out of a breach of a duty implied by or arising out of a contract, but the Alabama Supreme Court has stated that an ordinary breach of contract will not give rise to a tort.") (citation and footnote omitted).
And this critical observation forestalls ACH's unavailability argument. Alabama "has not recognized the defense of impossibility or impracticability. `Where one by his contract undertakes an obligation which is absolute, he is required to perform within the terms of the contract or answer in damages, despite an act of God, unexpected difficulty, or hardship, because these contingencies could have been provided against by his contract.'" Silverman v. Charmac, Inc., 414 So.2d 892, 894 (Ala. 1982) (citations omitted); see also, Peppertree Apartments, Ltd. v. Peppertree Apartments, 631 So.2d 873, 879 (Ala. 1993) ("The general rule is that, where the performance of a contract becomes impossible subsequent to the making of same, the promisor is not thereby discharged. But this rule has its exceptions, and these exceptions are where the performance becomes impossible by law, or by some action or authority of the government.") (quoting Greil Brothers Co. v. Mabson, 179 Ala. 444, 60 So. 876, 878 (1912)); Jewell v. Jackson & Whitsitt Cotton Co., 294 Ala. 112, 313 So.2d 157, 159-60 (1975) ("Generally, where a person by his contract charges himself with an obligation possible to be performed, he must perform it, unless its performance is rendered impossible by the act of God, by the law, or by the other party.") (citing Kamburis v. Stearns, 226 Ala. 171, 145 So. 449 (1933)).
As revealed, ACH's unavailability defense constitutes an impossibility or impracticability defense foreclosed by Alabama law. ACH could have contracted against the contingency regarding the supposed unavailability of additional named insurance, yet it failed to do so.
Finally, there remain genuine issues of fact as to damages afforded Plaintiffs if ACH failed to perform under the Agreement. A "`party who breaches [a failure-to-procure contract] is liable for damages resulting from the failure to obtain the promised insurance.'" Doster Const. Co. v. Marathon Elec. Contractors, Inc., 32 So.3d 1277, 1284 (Ala. 2009) (quoting Goodyear Tire & Rubber Co. v. J.M. Tull Metals Co., 629 So.2d 633, 639 (Ala. 1993)). Such economic, contractual damages generally incite the following considerations:
44 C.J.S. Insurance § 420 (footnotes omitted).
Based on the foregoing, if Plaintiffs prove ACH breached the Agreement, the failure-to-procure claim garners damages, even if OneBeacon covered some claims. These damages potentially include out-of-pocket expenses, including deductibles paid under the OneBeacon policy, premiums paid on the OneBeacon policy, and increases in premiums on the OneBeacon policy. See Inchaustegui v. 666 5th Ave. Ltd. P'ship, 96 N.Y.2d 111, 749 N.E.2d 196, 198-99, 725 N.Y.S.2d 627, 630 (2001) (landlord's damages limited to "its out-of-pocket expenses (notably, the premiums and any additional costs it incurred such as deductibles, co-payments and increased future premiums)" for failure-to-procure claim because it "obtained its own insurance and therefore sustained no loss beyond its out-of-pocket costs"); Mavashev v. Shalosh Realty, 233 A.D.2d 301, 303, 649 N.Y.S.2d 718, 720 (1996) (damages for failure to name individuals as additional insureds on liability insurance policy "limited to the cost of that liability insurance" because individuals procured their own insurance); Richfield Properties, Ltd. v. Galaxy Knitting Mills, Inc., 269 A.D.2d 516, 517, 704 N.Y.S.2d 505 (2000) ("After finding that Galaxy had breached its lease by failing to procure liability insurance for the benefit of Consol, the court properly limited Consol's damages to the costs of obtaining its own liability policy since such a policy was in effect at the time of the accident from which the underlying tort claim arises ....") (citations omitted). Moreover, the measure of these potential damages remains a genuine issue of material fact. Therefore, the court must preclude summary judgment on this additional basis.
ACH asserts the affirmative defenses of equitable estoppel and waiver against Plaintiffs' breach-of-contract claim. Principally, ACH contends that the Certificates of Insurance it provided regarding Evanston's underlying policies placed Plaintiffs on notice that they were only covered for claims arising out of ACH's provision of medical care. After review, genuine issues of material fact persist as to the estoppel and waiver defenses, thus warranting denial of summary judgment on these issues.
Because the defendant bears the burden of proof on its defenses at trial, its status as the summary-judgment movant requires it to establish there is no genuine dispute of material fact as to all of the elements of its defense and, concomitantly, that it deserves judgment as a matter of law on the defense. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993) ("The movant must show ... on all the essential elements of its case on which it bears the burden of proof at trial, no reasonable jury could find for the non-moving party.").
Equitable estoppel comprises the following elements:
EvaBank v. Traditions Bank, No. 1160495, ___ So.3d ___, ___, 2018 WL 797542, at *3 (Ala. Feb. 9, 2018) (quoting General Elec. Credit Corp. v. Strickland Div. of Rebel Lumber Co., 437 So.2d 1240, 1243 (Ala. 1983)).
Upon citation to the equitable estoppel elements, the flaw in ACH's efforts to secure summary judgment on this defence readily manifests. As to the first factor, ACH has not submitted any facts indicating Plaintiffs knew that Evanston's insurance policies limited their coverage to claims arising solely from ACH's negligence; indeed, the Certificates of Insurance ostensibly stated otherwise. Furthermore, Plaintiffs contend they did not know that Evanston's policy only provided against liability arising out of ACH's provision of medical services. See Doc. 93-6 at 20 (the Additional Insured endorsement "provide[s] coverage ... only as respects liability in rendering Professional Services caused by the negligence of the Named Insured ....) (emphasis added). Plaintiffs hotly contest whether they contracted for coverage of their own conduct, so apparently they did not know Evanston's policy failed to even accord such coverage. Therefore, ACH cannot obtain summary judgment on its equitable estoppel defense because genuine issues of material fact remain for resolution by the factfinder at trial.
The same result manifests for the waiver defense. "Waiver is the intentional relinquishment of a known right.... Intentional relinquishment must be shown in an unequivocal manner. A party's intent to waive a right may be found from conduct that is inconsistent with the assertion of that right." Edwards v. Allied Home Mortg. Capital Corp., 962 So.2d 194, 208-09 (Ala. 2007) (citations omitted). That is, "it is well established that a party's intention to waive a right is to be ascertained from the external acts manifesting the waiver.... This intention to waive a right may be found where one's course of conduct indicates the same or is inconsistent with any other intention." Hughes v. Mitchell Co., 49 So.3d 192, 201-02 (Ala. 2010) (citations omitted). Furthermore, the party asserting waiver must have "been induced by such conduct to act upon the belief that there has been a waiver and has incurred trouble or expense thereby." Alabama State Docks v. Saxon, 631 So.2d 943, 946 (Ala. 1994). "Whether a party has intentionally waived a known right is normally a jury question." Edwards, 962 So.2d at 209.
During the course of the parties' relationship, ACH provided certificates of
In addition, that ACH failed to provide Plaintiffs copies of the insurance policies does not preclude a genuine issue of fact on the waiver defense. Plaintiffs cannot defeat one waiver defense against a particular right by asserting another right they arguably waived by their course of conduct. In such circumstances, ACH's failure to provide copies of the policies would not preclude its waiver argument as a matter of law, yet genuine issues of material fact remain as to its application in this action. Therefore, ACH cannot obtain summary judgment on the waiver defense.
Plaintiffs claim ACH must indemnify them against the claims averred in the Underlying Actions. Based upon the terms of the Agreement, there exist genuine issues of material fact on this assertion.
"Under an agreement to indemnify, the promisor assumes liability for all injuries and damages upon the occurrence of a contingency." Goodyear Tire & Rubber Co. v. J.M. Tull Metals Co., 629 So.2d 633, 639 (Ala. 1993). Courts apply "general rules of contract interpretation" when construing an indemnity agreement. Once Upon a Time, LLC v. Chappelle Properties, LLC, 209 So.3d 1094, 1097 (Ala. 2016) (citations omitted). An "indemnity agreement `cannot be extended to losses or damages neither expressly within its terms, nor of such character that it may reasonably be inferred that the parties intended to covenant against them.'" Id. (citations omitted).
The pertinent indemnity clause in the Agreement provides as follows:
(Doc. 94-5 at 23; Doc. 94-7 at 5).
As an initial matter, the parties dispute whether the indemnity clause obligates the indemnitor, ACH, to indemnify the indemnitees, Plaintiffs, for Plaintiffs' own negligence. "Agreements by which one party agrees to indemnify another for the consequences of the other's acts or omissions are carefully scrutinized.... An agreement by one person to indemnify another for the other's negligent conduct is enforceable only if the indemnity provisions are unambiguous and unequivocal." City of Montgomery v. JYD Int'l, Inc., 534 So.2d 592, 594 (Ala. 1988) (citation omitted).
The Agreement's indemnity clause does not contain an "unambiguous and unequivocal" declaration that ACH will indemnify Plaintiffs for their own acts or omissions. Indeed, the clause unambiguously provides otherwise: ACH indemnifies Plaintiffs solely against ACH's acts, omissions, conduct, or misconduct "related in any way to or while in the performance" of the Agreement, or against other actions allegedly perpetrated by ACH. Therefore, the indemnity clause covers Plaintiffs for ACH's actions in providing medical care to detainees or for other conduct at the facility. Properly construed, the Agreement does not obligate ACH to indemnify Plaintiffs for their own conduct.
As discussed extensively in the Background, the first counts of the Underlying Actions consistently aver claims of deliberate indifference to serious medical needs, pursuant to 42 U.S.C. § 1983, against all defendants. They allege certain individual defendants, including Dorning and specific ACH employees, act as supervisory officials for the jail and failed to fulfill their responsibility for development and implementation of policies and procedures for medical care at the jail. Furthermore, the counts state Madison County intentionally refused to adequately fund medical care with deliberate indifference to the serious medical needs of inmates. Finally, the counts allege Dorning remains liable for the acts of ACH and its policymakers, and the parties' conduct caused the plaintiffs in the Underlying Actions to suffer physical and emotional injuries. Clearly, a reasonable factfinder may determine these counts in the Underlying Actions averred § 1983 liability for Plaintiffs for the conduct of ACH's employees, and thus, genuine issues of material fact remain as to this determination.
Finally, this issue proceeds to trial notwithstanding the absence of any fault determination judicially dispensed in the Underlying Actions. As Alabama law provides:
Stone Bldg. Co. v. Star Elec. Contractors, Inc., 796 So.2d 1076, 1090 (Ala. 2000) (quoting 41 Am. Jur. 2d Indemnity § 46 at 382-83 (1995) (footnotes and emphasis omitted)). There exists no dispute ACH received notice and an opportunity to participate before Plaintiffs settled the pertinent Underlying Actions, and the question of Plaintiffs' potential liability for the Underlying Actions incite genuine issues of material fact.
Therefore, Plaintiffs' indemnity claim will proceed to trial.
Plaintiffs allege a claim of fraud against ACH pursuant to Ala. Code § 6-5-101. Under Alabama law, "misrepresentations of a material fact made willfully to deceive, or recklessly without knowledge, and acted upon by the opposite party, or if made by mistake and innocently and acted on by the opposite party, constitute legal fraud." Ala. Code § 6-5-101. Regardless whether the individual rendered
Plaintiffs allege promissory fraud against ACH.
As detailed below, there exist genuine issues of material fact as to whether ACH rendered a misrepresentation and displayed the requisite intent not to perform and the intent to deceive, and whether Plaintiffs reasonably relied on ACH's misrepresentations.
The parties appear to diverge in their arguments regarding misrepresentation and promissory fraud. ACH argues that there exists no misrepresentation in the Agreement. Plaintiffs counter ACH's misrepresentation argument, yet they also contend ACH demonstrated a fraudulent intent not to perform. (Doc. 102 at 40). ACH does not respond to Plaintiffs' promissory fraud argument in its Reply, appearing to proceed on its argument regarding the basic elements of fraud notwithstanding Plaintiffs' invocation of promissory fraud in its opposition. (Doc. 102 at 37-38, 40). In any event, the discrepancy does not detract from the following
"Although the denomination of a representation as one of opinion or fact is not in itself conclusive, the ultimate determination of the true nature of a given representation depends upon all the circumstances of the particular case." Jones v. McGuffin, 454 So.2d 509, 512 (Ala. 1984). Plaintiffs allege that ACH falsely represented the following material facts to the County and Dorning: (1) ACH procured and maintained adequate, primary insurance covering all claims that may arise out of the course and scope of ACH's work, including claims for professional liability, negligence, and constitutional torts; and (2) the insurance would deem the County and Dorning "additional named insureds." (Doc. 73 at 36).
On a promissory fraud claim, Plaintiffs must establish ACH possessed the requisite intent to deceive when they executed the Agreement. Southland, 21 So.3d at 1211(citing Martin v. American Medical Int'l, Inc., 516 So.2d 640 (Ala. 1987)). Plaintiffs cannot satisfy their burden of proving intent to deceive merely on the basis that ACH failed to keep its promise. Wright v. AmSouth Bancorporation, 320 F.3d 1198, 1204 (11th Cir. 2003)(applying Alabama law). However, Plaintiffs can establish intent to deceive "through circumstantial evidence that relates to events that occurred after the alleged misrepresentations were made." Vance v. Huff, 568 So.2d 745, 750 (Ala. 1990)(citation omitted). Nevertheless, the circumstantial evidence must remain substantial, and misrepresentations made recklessly or innocently cannot sustain an action for promissory fraud. See Graham Foods, Inc. v. First Alabama Bank, 567 So.2d 859, 862 ("Reckless misrepresentation will not support a charge of promissory fraud."); City of Prattville v. Post, 831 So.2d 622, 629 (Ala. Civ. App. 2002)(holding that a claim of promissory fraud based on an implied or negligent representation "could not be sustained").
Furthermore, "failure to perform alone is not sufficient evidence to show a present intent not to perform. If it were, then every breach of contract would be `tantamount to fraud.'" Gadsden Paper & Supply Co. v. Washburn, 554 So.2d 983, 987 (Ala. 1989)(citing and quoting Purcell Co. v. Spriggs Enters., Inc., 431 So.2d 515, 519 (Ala. 1983)). Therefore, Plaintiffs must submit evidence that indicates a present intent not to perform at the time ACH rendered the alleged misrepresentation, even if that evidence remains circumstantial. See Byrd v. Lamar, 846 So.2d 334, 347 (Ala. 2002)("Circumstantial evidence is appropriate proof of a present intent not to perform in a promissory-fraud case.").
From the beginning of their relationship with ACH, Plaintiffs placed great emphasis on the necessary acquisition of sufficient liability insurance. Rob Bielenberg of Callender & Co. served as a liaison to ACH to obtain the proper insurance coverage, yet ACH did not send Bielenberg a
Rich, Johnson, and Dorning exchanged correspondence several times in late 2006, constantly referring to the importance of acquiring the insurance as described in the Agreement and the difficulties in obtaining said insurance. See Doc. 95-10 at 12-14 (September 12, 2006, letter from Johnson to Dorning, communicating Rich's frustrations with the wording on the Certificate of Liability Insurance not matching the language set out in the Agreement); Doc. 95-10 at 17-18 (September 14, 2006, letter from Johnson to Rich, summarizing Johnson's efforts to acquire Eighth Amendment insurance that included the wording from the Agreement); Doc. 95-7 at 12 (October 16, 2006, letter from Rich to Johnson, emphasizing that "insurance coverage is a matter of significant concern to [the County and Dorning]" and requesting an update on the status of ACH's insurance coverage); Doc. 95-10 at 25-27 (October 23, 2006, letter from Johnson to Rich, updating Rich on communications with Bielenberg regarding the ongoing insurance search).
Bielenberg testified that he always received a copy of the policy that Evanston issued for ACH, and Bielenberg would then send the policies to Neil Leuthold, ACH's president. (Doc. 96-1 at 68, ll. 9-16). Rich testified that he never received any of the insurance policies issued to ACH. (Doc. 95-2 at 28, ll. 17-20).
At first blush, the numerous documents evincing the negotiations underlying the initial 2006 Agreement, and following the initial execution of the 2006 Agreement, depict the parties engaging in attempts to comply with said Agreement by acquiring the requisite insurance. During that period, the parties all remained aware of the importance that Plaintiffs placed on receiving adequate coverage in liability insurance. Therefore, the 2006 Agreement does not indicate any misrepresentations or intents to deceive or not perform a promise at the time the parties' executed the contract.
However, evidence of misrepresentation, and an intent to deceive and not perform, exists as to the 2012 and 2014 Agreements pertinent to the claims at bar. Notwithstanding ACH's efforts in 2006 to secure insurance coverage reflecting the Agreement's promises, it ultimately failed to do so. Indeed, ACH maintains that insurers do not offer "Additional Named Insured" coverage. Furthermore, it provided a template to Evanston that did not accord with Plaintiffs' promised coverage, and it possess the policies and Additional Insured endorsements unambiguously covering Plaintiffs solely for excess coverage on negligent conduct perpetrated by ACH's agents.
Despite knowledge of these facts six years after 2006, ACH still executed contracts stating that it would provide Plaintiffs' primary coverage for § 1983 claims. Furthermore, ACH delivered certificates of insurance essentially stating that the insurance policies covered Plaintiffs for civil rights liability, with no indication whether such [false] coverage was primary or excess. A reasonable juror may determine that ACH's execution of the 2012 and 2014 Agreements — despite the afore-mentioned facts indicating it could not provide the coverage sought by Plaintiffs — constitutes misrepresentations, an intent to deceive, and an intent not to perform its obligations.
The same conclusion manifests on the issue whether Plaintiffs reasonably relied upon ACH's alleged misrepresentations. To recover damages for fraud, Plaintiffs must prove that they reasonably relied on ACH's alleged misrepresentation. AmerUS Life Ins. Co. v. Smith, 5 So.3d 1200, 1207 (Ala. 2008). The reasonable-reliance standard imposes on Plaintiffs "a general duty ... to read the documents received in connection with a particular transaction." Foremost Insurance Co. v. Parham, 693 So.2d 409, 421 (Ala. 1997). When reviewing a plaintiff's actions pursuant to the reasonable-reliance standard, the Alabama Supreme Court consistently holds that a plaintiff does not reasonably rely upon representations that contradict written terms in documents when it is capable of reading them yet does not do so or investigate facts that should provoke inquiry. Traylor v. Bell, 518 So.2d 719 (Ala. 1987).
As more fully explained:
In a case closely on point, the Alabama Supreme Court held that an additional insured cannot rely on certificates of insurance alone as proof of coverage as "the insurance policy is the controlling document." Ala. Elec. Coop. Inc., v. Bailey's Constr. Co., Inc., 950 So.2d 280, 285 (Ala. 2006). "Where an entity requires another to procure insurance naming it an additional insured, that party should not rely on a mere certificate of insurance, but should insist on a copy of the policy. A certificate of insurance is not part of the policy — if it states that there is coverage but the policy does not, the policy controls." Id. (citing 17 Lee R. Russ & Thomas F. Segalla, Couch on Insurance § 242:33 (3d ed. 1997)); see also Webb v. Reese, 505 So.2d 321 (Ala. 1987)(under the reasonable reliance standard, a fraud claim cannot be sustained when the alleged misrepresentations run counter to the language of the document governing the rights of the parties to that contract).
On first analysis, the foregoing standards starkly portend summary judgment for ACH. The Certificates that ACH sent Plaintiffs deem Plaintiffs as "additional insureds" rather than the coveted "additional named insured" status. Furthermore, the Certificates include a disclaimer that they are "ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW." Arguably, these facts about the Certificates should have incited Plaintiffs to investigate their insured status with Evanston.
However, the reasonable reliance precedent invoking the duty for plaintiffs to read documents or investigate facts involves circumstances where the plaintiffs actually possess the documents contravening the alleged misrepresentations. See, e.g., Sandoz, Inc. v. State, 100 So.3d 514 (Ala. 2012); AmerUS Life Ins. Co. v. Smith, 5 So.3d 1200 (Ala. 2008); Foremost Insurance Co. v. Parham, 693 So.2d 409 (Ala. 1997); Traylor v. Bell, 518 So.2d 719 (Ala. 1987); Med. Park Station, LLC v. 72 Madison, LLC, 216 So.3d 453 (Ala. Civ. App. 2016). In this action, Plaintiffs did not possess the insurance policies which would have put them on notice that ACH failed to procure the requested coverage.
To be sure, in Ala. Elec. Coop. the plaintiff therein did not possess copies of the pertinent insurance policies contrasting the certificates of insurance, and the court still ruled they did not reasonably rely upon the alleged misrepresentations because they could have insisted on obtaining the policies. 950 So.2d at 285. However, the court signals its conclusion may have differed if the plaintiffs therein actually requested the policies and yet were denied access. Id. at 286 and n.2.
And therewith resides the critical distinguishing feature of this case. Plaintiffs actually contracted with ACH in the Agreement to obtain copies of the insurance policies. For all of the controlling Agreements — 2006, 2009, 2012, and 2014 — ACH maintained the contractual obligation to provide copies of the insurance policies. A reasonable factfinder may conclude that its failure to provide copies when it sustained the contractual obligation to do so constitutes
If ACH would not have breached its contractual duty to provide the insurance policies, Plaintiffs may have discovered the features of the policies contrasting with the Agreement. Sure, Plaintiffs may have retained the duty to investigate the nature of the policies upon examining the Certificates, yet ACH retained the duty to provide copies of the policies to facilitate such examination. In effect, determining reasonable reliance as a matter of law against Plaintiffs on these facts would occasion an unjust benefit for ACH, as it would profit from the wrongful breach of its contractual duty to provide information that could have unveiled the alleged misrepresentations. In turn, such a ruling may incentivize entities to deny access to documents subject to a contractual disclosure duty as a means of concealing detrimental information. Courts should be loath to facilitate such a development, and thus, seek to deter it.
In these circumstances, the reasonableness of Plaintiffs' reliance upon ACH's alleged misrepresentations constitutes a close, difficult question, which establishes its domain for the factfinder at trial, not a legal decision at summary judgment.
Plaintiffs allege fraudulent suppression against ACH pursuant to Ala. Code § 6-5-102. Plaintiffs' fraudulent suppression claim avers that ACH sustained a duty to reveal material facts bearing on ACH's representation that it procured the insurance coverage sought after in the Agreement. "Suppression of a material fact which the party is under an obligation to communicate constitutes fraud." Ala. Code § 6-5-102. To prove fraudulent suppression, Plaintiffs must produce substantial evidence establishing that: (1) ACH possessed a duty to disclose an existing material fact; (2) ACH concealed or suppressed that material fact; (3) ACH's suppression induced Plaintiffs to act or refrain from acting; and (4) Plaintiffs suffered actual damage as a proximate result. Coilplus-Alabama, Inc. v. Vann, 53 So.3d 898, 909 (Ala. 2010).
The parties dispute whether ACH warrants summary judgment on the first element, the duty to disclose, and the third element, which equates to reasonable reliance. The court has already determined genuine issues of fact exists as to the reasonable reliance element, and the same conclusion manifests as to whether ACH owed a duty to disclose material facts to Plaintiffs.
"Without a duty to disclose, there can be no recovery for suppression." Pearson's Pharmacy, Inc. v. Express Scripts, Inc., 505 F.Supp.2d 1272, 1278 (M.D. Ala. 2007)(internal quotation and citation omitted). The "existence of a duty is a question of law to be determined by the trial judge ...." State Farm Fire & Cas. Co. v. Owen, 729 So.2d 834, 839 (Ala. 1998). However, the judge and jury assume certain obligations on the duty to disclose issue:
Id. at 840 (footnote omitted).
"A duty to communicate can arise from a confidential relationship between the plaintiff and the defendant, from the particular circumstances of the case, or from a request for information, but mere silence in the absence of a duty to disclose is not fraudulent." Flying J Fish Farm v. Peoples Bank of Greensboro, 12 So.3d 1185, 1192 (Ala. 2008) (citations omitted). The following factors apply in assessing whether alleged circumstances create a duty of disclosure: "`(1) the relationship of the parties; (2) the relative knowledge of the parties; (3) the value of the particular fact; (4) the plaintiff's opportunity to ascertain the fact; (5) the customs of the trade; and (6) other relevant circumstances.'" Bethel v. Thorn, 757 So.2d 1154, 1162 (Ala. 1999)(quoting Owen, 729 So.2d at 842-43 (Ala. 1998)). The parties do not enjoy a confidential relationship occasioning the duty to disclose, so one must rely upon the other factors to assess its existence.
"When one party has superior knowledge of a fact that is unknown to the other party, and the lack of knowledge will induce the other party to act in a manner in which he otherwise might not act, the obligation to disclose is `particularly compelling.'" Flying J, 12 So.3d at 1192 (citations and internal quotation marks omitted). However, superior knowledge of a fact, without more, does not impose upon a party a legal duty to disclose such information. Id. (citations and internal quotation marks omitted). "One may also recover for fraudulent concealment by showing active concealment of a material fact with an intent to deceive or mislead." Auburn's Gameday Ctr. at Magnolia Corner Owners Ass'n, Inc. v. Murray, 138 So.3d 317, 330 (Ala. Civ. App. 2013) (citations omitted).
Taking the Plaintiffs' facts as true, they establish a duty for ACH to disclose information to Plaintiffs, especially as a duty specifically arises under the Agreement. ACH represented that it secured for Plaintiffs "General Liability, Professional Liability, and Medical Malpractice Insurance providing [primary] coverage for claims including professional liability, negligence, and claims asserted pursuant to 42 U.S.C. § 1983," and it also held "Madison County... and the Sheriff ... shall be additional named insureds on the aforesaid policies of insurance." (Doc. 94-2 at 9).
Plaintiffs and ACH communicated in great detail regarding Plaintiffs' desire to ensure ACH maintained adequate insurance coverage pursuant to the Agreement. Johnson became aware of the ongoing insurance issues that Bielenberg faced in attempting to secure insurance for ACH that matched the Agreement's language. (Doc. 95-10 at 24-27). The scope of insurance that ACH acquired for Plaintiffs remained a valuable and even dispositive factor
As already established, a duty arises when a party receives a request for information. Flying J, 12 So.3d at 1192. In addition, if a party undertakes to speak he or she must "disclose those facts that are material to the ones already stated so as to make them truthful." Freightliner, LLC v. Whatley Contract Carriers, LLC, 932 So.2d 883, 895 (Ala. 2005). Both of these factors play prominent roles in the determination at bar, leading to the conclusion ACH sustained the duty to fully disclose the underlying policies' coverage. First and foremost, the Agreement required ACH to deliver to Plaintiffs copies of the Policy; that is, the Agreement contained a contractual request for information. The desired information, of course, contravenes ACH's representations that it secured desired insurance coverage. (Doc. 94-2 at 9). Furthermore, ACH provided Plaintiffs certificates of insurance; that is, it undertook to speak on a valuable subject, i.e., the substance of the coverage sought by Plaintiffs. ACH's undertaking clearly failed to fully disclose the limitations in Evanston's policies. Although ACH contends that nothing prevented Plaintiffs from contacting ACH or Evanston to obtain information about the Policy, nonetheless ACH regularly received copies of the Policy from Evanston and was obligated to deliver them to Plaintiffs. (Doc. 98-1 at 68, ll. 9-16).
Based upon the foregoing analysis, the Plaintiffs' facts, taken as true, establishes a duty for ACH to disclose material facts, i.e., Evanston's insurance policies. Therefore, the jury retains the charge to determine whether those circumstances actually existed. As a result, genuine issues of material fact exist as to whether ACH maintained a duty to disclose material facts to Plaintiffs. See Bethel, 757 So.2d at 1162 (fraudulent concealment of facts after a contract has been made can support both a breach-of-contract claim and a fraud claim).
"[R]easonable reliance is an essential element of a suppression claim." Mike Brooks Car World, Inc. v. Sudduth, 54 So.3d 364, 370 (Ala. Civ. App. 2010) (citing Johnson v. Sorensen, 914 So.2d 830, 837 (Ala. 2005)) ("Although the term `inducement' has often been used in the description of the fourth element of suppression, it is clear that a plaintiff's [`reasonable reliance'] is an essential element of a suppression claim.").
As stated in the analysis of Plaintiffs' promissory fraud claim, genuine issues of material fact exist whether Plaintiffs reasonably relied on ACH's alleged misrepresentations. Therefore, the court will
Alabama law follows the definition of promissory estoppel as set forth in the Restatement of Contracts: "A promise which the promisor should reasonably expect to induce action or forbearance of definite and substantial character and which does so is binding if injustice can be avoided only by enforcement thereof." Bush v. Bush, 278 Ala. 244, 177 So.2d 568, 570 (1964)(quoting Restatement (First) of Contracts § 90). "[T]he gravamen of the claim of promissory estoppel [in Alabama] is detrimental reliance." Wyatt v. BellSouth, Inc., 18 F.Supp.2d 1324, 1326 (M.D. Ala. 1998); see also Bush, 177 So.2d at 570
A promissory estoppel claim has no viability in the presence of a valid breach-of-contract claim regarding the same promise. Howard O. Hunter, Modern Law of Contracts § 6:13 (Mar. 2018 ed.); see also Shane v. Bunzl Distrib. USA, Inc., 200 F. App'x 397, 404 (6th Cir. 2006)(affirming the "widely accepted principle that promissory estoppel is applicable only in the absence of an otherwise enforceable contract" on the subject matter); Heating & Air Specialists, Inc. v. Jones, 180 F.3d 923, 934 (8th Cir. 1999)(citing numerous state courts so holding). The court may assess a promissory estoppel claim when it has "determined that no binding contract existed." Aldridge v. DaimlerChrysler Corp., 809 So.2d 785, 794 (Ala. 2001) ("When one seeks to impose liability under the doctrine of promissory estoppel, we look to the facts to determine whether that doctrine can be used to create liability, once we have determined that no binding contract existed.").
Plaintiffs allege a claim of promissory estoppel against ACH. However, the parties do not dispute that a valid contract existed between them — the Agreement — which governed their respective right and obligations. That the parties dispute the meaning of the phrase "additional named insured" in the Agreement does not eviscerate the validity of the contract. That is, construal of the phrase "additional named insured" to Plaintiffs' detriment does not disinter another promise regarding the phrase buried in circumstances outside of the Agreement. Any promises ride or die on the interpretation of the valid contract consummated by the parties.
Therefore, the court will
Based upon the foregoing analyses, the court will
Davis's brief provides no relevant evidence for the main issues in this action. As explained further in this opinion, the allegations set out in the complaint in the Davis action determines whether Evanston owed a duty to defend. Therefore, the court will
As an initial matter, pursuant to Federal Rule of Civil Procedure 15(b)(1) the court may amend pleadings as late as trial to conform them to admissible evidence tendered by the parties, so long as an amendment would not prejudice any opposing party. See Muhs v. River Rats, Inc., 586 F.Supp.2d 1364, 1375-76 (S.D. Ga. 2008) (pursuant to Rule 15(b)(1), court amended pleadings at summary judgment stage to permit plaintiff to proceed on claim as to mechanical part different from part averred defective in complaint) (citing, inter alia, Brown v. Hughes, 894 F.2d 1533, 1539 (11th Cir. 1990) (permitting Rule 15(b) amendment in connection with a pretrial motion)); Cain v. Geren, No. 2:07-CV-2191-RDP, 2010 WL 11561383, at *28 (N.D. Ala. Mar. 25, 2010) (permitting Rule 15(b)(1) amendment at summary judgment stage to adjudicate adverse action date different from date averred in pleadings) (citing Muhs, supra, 586 F.Supp.2d at 1375-76). "Although the general rule is that `a plaintiff may not amend his complaint through argument in a brief opposing summary judgment,' Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004) (citation omitted)," the "Gilmour approach applies when a litigant attempts to propose a new theory of recovery — not when a litigant attempts to prove an underlying fact." Cain, 2010 WL 11561383, at *28. In the instant dispute, the parties dispute an underlying fact regarding the applicable policy covering the Underlying Actions, and Plaintiffs presented evidence Evanston litigated features of the 2014 policy during discovery, thus obviating any prejudice from a Rule 15(b)(1) amendment.
However, Plaintiffs falter because four of the five Underlying Actions clearly fall within the 2013 policy's purview. Evanston provided claims-made policies to ACH, and the policies' provisions control as to the definition of a legal claim so long as they properly defined such terms. See St. Paul Fire & Marine Ins. Co. v. Edge Mem'l Hosp., 584 So.2d 1316, 1322 (Ala. 1991) (noting that a policy's definition of "claim" controls in a claims-made policy); Scottsdale Ins. Co. v. Town of Orange Beach, 618 So.2d 1323, 1325 (Ala. 1993) (faulting insurer for not defining the term "claim" in its claims-made policy); Attorneys Ins. Mut. of Alabama, Inc. v. Smith, Blocker & Lowther, P.C., 703 So.2d 866, 870 (Ala. 1996) (applying definition of "claim" including in claims-made policy).
The 2013 policy obligates Evanston to remunerate insureds "as a result of Claims first made against the Insured during the Policy Period." (Doc. 93-6 at 33). The policy defines the term "claim" as "a demand for monetary damages or services" or "the service of suit" against the insured. (Doc. 93-6 at 33). The 2013 Policy Period spanned August 1, 2013, to August 1, 2014. (Id. at 11). Plaintiffs requested ACH and Evanston defend and indemnify them as to the Listau, Jefferson, Woods, and Foster actions during the 2013 Policy Period. (See Doc. 93-9 at 2, 4, 6, 9; Doc. 108-2); see St. Paul Fire & Marine Ins. Co. v. Tinney, 920 F.2d 861, 863 (11th Cir. 1991) (generally "[n]o matter what the form of notice of loss may be, if it operates to bring the attention of the insurer to the loss or accident, sets forth the essential facts upon which liability of the insurer depends, and appears credible, it is sufficient") (quoting Hopkins v. Lawyers Title Ins. Corp., 514 So.2d 786, 788 (Ala.1986), overruled on other grounds by State Farm Fire and Casualty Company v. Owen, 729 So.2d 834 (Ala. 1998)). In any event, whether advanced under the 2013 or 2014 Policy, the Additional Insured endorsements in all of the policies did not cover 42 U.S.C. § 1983 claims against Plaintiffs, as discussed herein.
In addition, that Evanston offered to defend Plaintiffs on the Underlying Actions' § 1983 claims do not obviate the court's conclusion. Evanston maintained reservation of rights as to the insurance coverage for Plaintiffs. And that Evanston withdrew coverage on its belief that the § 1983 claims regarded Plaintiffs' own conduct, not that of ACH, does not forestall the plain meaning of the insurance policy's terms that it did not cover any § 1983 claims averred against Plaintiffs for ACH's conduct.
[T]he Alabama Insurance Regulations prohibit the modification of an insurance policy through the issuance of a certificate of insurance. The regulations provide:
* * * No certificate of insurance may be used to amend, extend, restrict or alter coverage afforded by the policies to which the certificate makes reference.
Alabama Dept. of Insurance Reg. No. 62 § III [now codified at Ala. Dept. Ins. Reg. 482-1-062-.03(5)].
St. Paul Fire & Marine Ins. Co. v. Newman, No. CIV. 99-0645-AH-C, 2000 WL 1367980, at *8 (S.D. Ala. Sept. 5, 2000); but see Brown Mach. Works & Supply Co. v. Ins. Co. of N. Am., 659 So.2d 51, 61 (Ala. 1995) ("[P]roceeding in the spectrum away from those to whom [Alabama Code § 27-14-19] definitely applies [i.e., a policy's purchaser and named insureds], it becomes more likely that provisions of undelivered policies will control over the terms of a delivered certificate of insurance if the certificate disclaims any effect on the coverage contained in the policy and if it does not `definitely contradict' the policy....").
In its Motion to Strike, Evanston properly argues that Plaintiffs never claimed OneBeacon's subrogation interest in their previous pleadings. In addition, ACH filed a Response in Support of, and Joinder in, Evanston's Motion to Strike Plaintiffs' Subrogation Claim, asserting that Plaintiffs never apprised Defendants of any alleged direct claim by OneBeacon regarding the money it paid on the Underlying Actions. (Doc. 110 at 3). Defendants argue that, similar to Plaintiffs' introduction of Evanston's 2014 Policy in its Response, Plaintiffs inappropriately added OneBeacon's subrogation interest in its Response to Evanston's Motion for Summary Judgment.
Contrary to the Court's finding that Plaintiffs' reliance upon the 2014 policy did not occasion any potential prejudice from a Rule 15(b)(1) amendment, Plaintiffs' assertion of OneBeacon's subrogation interest operates as a tardy attempt to claim an alternative ground for recovery. Plaintiffs refer to OneBeacon's subrogation interest as a basis for several arguments in its Response, including their claim for damages. (Doc. 104 at 54, 57-60, 70). Furthermore, while several witnesses extensively reviewed the 2014 policy in depositions, so far as the parties indicate Rich remains the only witness to refer to OneBeacon's subrogation interest, and he mentioned it only once in his deposition. See Doc. 95-2 at 137, ll. 20-21 ("[OneBeacon has] a subrogation interest, legally, I believe, that exists.") Plaintiffs "may not amend [their] complaint through argument in a brief opposing summary judgment", especially when proposing a new theory of recovery. Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004) (citation omitted); Cain v. Geren, No. 2:07-CV-2191-RDP, 2010 WL 11561383, at *28 (N.D. Ala. Mar. 25, 2010). Nevertheless, because the Court finds that Plaintiffs need not rely upon OneBeacon's subrogation rights to recover damages or assert their other claims, this opinion renders moot Defendants' motion to strike Plaintiffs' subrogation claim.
Stone does not establish a per se rule according automatic waiver effect to certificates of insurance that contrast with a contracted obligation to procure insurance. Rather, the facts of Stone merely reveal that the plaintiff's course of conduct — accepting the certificates of insurance indicating non-coverage and sending a letter acknowledging the same — evinces an intention to waive a right. Therefore, ACH may not rely upon Stone as establishing a legal rule regarding certificates of insurance. Indeed, the certificates of insurance at issue in this case clearly state that they do not alter the terms of Evanston's insurance policies, and, as established previously, Alabama insurance regulations preclude such modifications by insurance certificates.
As revealed, this exception primarily concerns attorneys' fees coverage under indemnity clauses, not the provision of the duty to defend and save harmless generally. The exception's applicability to this case proceeds upon whether the Underlying Actions aver claims against Plaintiffs based upon ACH's conduct, Plaintiffs' conduct, or both. As these questions rest upon genuine issues of material fact, the court cannot resolve the exception's applicability to this case at this stage.
Here, the Agreement obligates ACH to indemnify Plaintiffs against claims "related in any way to or while in the performance" of the contract, which mirrors the indemnity terms in Couse regarding indemnity against claims arising out of "the performance" of the contract therein. However, the Agreement here contains additional, limiting language expressly stating that ACH shall indemnify Plaintiffs solely against ACH's own acts, omission, conduct, or misconduct "related in any way to or while in the performance" of the contract. Therefore, the Agreement does not reach as broadly as the contract as in Couse, and thus, Couse provides no aid for Plaintiffs' entreaty.
However, the Dickinson concurrence does not constitute controlling law in Alabama and therefore does not preclude Plaintiffs' fraud claims. Rather, the Alabama Supreme Court entertains claims of fraud and breach-of-contract that stem from the same representations in the same document. See Heisz v. Galt Industries, Inc., 93 So.3d 918, 925 (2012) ("Thus, the only alleged misrepresentations identified at trial that would support the promissory-fraud claim submitted to the jury are those made in the [allegedly breached] assert-purchase agreement.").
