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03/03/95 JENNIFER DRIVER v. NATIONAL SECURITY FIRE

March 3, 1995

JENNIFER DRIVER, ETC.
v.
NATIONAL SECURITY FIRE & CASUALTY COMPANY, ET AL. NATIONAL SECURITY FIRE & CASUALTY COMPANY, ET AL. V. JENNIFER DRIVER, ETC.



Appeal from Chilton Circuit Court. (CV-92-81). John Bush, Trial Judge.

As Corrected April 14, 1995. Released for Publication July 5, 1995.

Shores, Justice. Almon, Houston, Kennedy, Cook, and Butts, JJ., concur. Maddox, J., concurs specially. Ingram, J., concurs in the result (without opinion).

The opinion of the court was delivered by: Shores

SHORES, JUSTICE.

On December 1, 1990, Jennifer Driver was a passenger in a vehicle that was involved in a collision with another vehicle operated by Jackie Dale Dennis, an uninsured motorist. Driver sustained personal injuries as a result of the accident. Dennis was also injured in the accident and died as a result of his injuries. At the time of the accident, a liability insurance policy issued by National Security Fire & Casualty Company ("National Security") contained uninsured motorist benefits enuring to the benefit of Driver. The vehicle in which Driver was a passenger was being driven by Paige Cobb Posey. Evidence presented indicated that both Posey and Dennis may have been intoxicated at the time of the accident.

Driver, a minor, filed an action by and through her mother and next friend, Deborah S. Cleckler, naming as defendants the uninsured motorist Dennis and National Security. *fn1 Her complaint alleged that the uninsured motorist had negligently or wantonly operated his vehicle in such a manner as to cause her injuries. The complaint also included a claim against National Security for uninsured motorist benefits, premised upon the negligence or wantonness of the uninsured motorist. Deborah S. Clecker, individually, also sued the defendants, for medical expenses and loss of consortium incurred as a result of her daughter's injuries.

In its answer to Driver's complaint, National Security asserted the affirmative defense of assumption of the risk. National Security claims that Posey's intoxication prevented her from avoiding the accident. Because Driver knew that Posey had been drinking, National Security argues that Driver placed herself in the danger that caused her injuries. After the action was filed, the probate court appointed Attorney Robert Bowers, Jr., administrator ad litem for the estate of Jackie Dale Dennis. Attorney Bowers also represented the estate of Dennis in the pending litigation. In August 1993, National Security opted out of the trial of the case, pursuant to the authority of Lowe v. Nationwide Ins. Co., 521 So. 2d 1309 (Ala. 1988). On the eve of trial, Attorney Bowers requested that William F. Smith II, former counsel for National Security, enter an appearance for the uninsured motorist's estate and assist in the trial. On November 1, 1993, over objection by the plaintiffs, Smith entered an appearance for the estate of Jackie Dale Dennis, as co-counsel with Attorney Robert Bowers, Jr.

Before trial, Driver moved for a directed verdict against the defendants' affirmative defense of assumption of the risk. The trial court denied the motion.

The trial began on November 3, 1993. The jury rendered a verdict in favor of Dennis's estate. The court entered a judgment on the verdict, in favor of Dennis and National Security. Driver appealed; National Security also appealed, complaining of the court's order assessing costs.

Driver first contends that the trial court erred in denying her motion for a directed verdict on the defendants' defense of assumption of the risk. She next contends that the trial court committed reversible error by permitting the former attorney for National Security to represent the estate of Jackie Dale Dennis (the uninsured motorist) at trial. National Security argues that the court erred in taxing administrator ad litem fees and expenses totaling $2,495.55 against National Security.

The first issue before us is the propriety of the trial court's order denying Driver's motion for a directed verdict with respect to the

assumption of the risk defense. The plaintiff contends that the trial court erred when it overruled her motion for a directed verdict and submitted the affirmative defense of assumption of the risk to the jury. A directed verdict is proper (1) where the nonmoving party has failed to present substantial evidence regarding some element essential to his claim, or (2) where there is no disputed issue of fact upon which reasonable persons could differ. Rule 50(a), Ala.R.Civ.P.; John R. Cowley & Bros., Inc. v. Brown, 569 So. 2d 375, 376 (Ala. 1990); Koch v. State Farm Fire & Cas. Co., 565 So. 2d 226, 228 (Ala. 1990); Dobbs v. Alabama Power Co., 549 So. 2d 35, 36 (Ala. 1989). Therefore, we must determine whether the estate of Jackie Dale Dennis, in order to withstand Driver's motion for a directed verdict, presented substantial evidence from which a jury could find each element of the defense, or whether there were no disputed issues of fact upon which reasonable persons could differ.

Whether the trial court erred in denying Driver's directed verdict motion "is tested by a purely objective determination of whether the party having the burden of proof has produced [sufficient] evidence [to create a factual dispute] requiring resolution by the jury." Ex parte Oliver, 532 So. 2d 627, 628 (Ala. 1988). Because the trial court's ruling on a directed verdict motion is based on an objective standard, and, thus, is not discretionary, review of such a ruling on appeal is de novo. Otis Elevator of Gadsden, Inc. v. Scott, 586 So. 2d 200, 203 (Ala. 1991), citing King Mines Resort, Inc. v. Malachi Mining & Materials, Inc., 518 So. 2d 714 (Ala. 1987). Additionally, in reviewing the ruling on a motion for a directed verdict, this Court must view all the evidence in a light most favorable to the nonmovant and must entertain such reasonable evidentiary inferences as the jury would have been free to draw. Wadsworth v. Yancey Bros. Co., 423 So. 2d 1343, 1345 (Ala. 1982).

Driver argues that the trial court erred in denying her motion for a directed verdict because, she says, there was no way she could have known that Dennis would be driving intoxicated, and would collide with the car in which Driver was a passenger. National Security contends that Posey could have avoided the accident had she not been drinking. National Security then argues that Driver was well aware of the dangers of getting into a vehicle with a drunk driver, and nevertheless put herself in danger by occupying a vehicle operated by Posey, who was, or might have been, intoxicated. At the outset we note that a plaintiff must have assumed the risk created by the defendant in order for that defendant to have a valid defense of assumption of risk. This is an essential element of that defense. Employers Cas. Co. v. Hagendorfer, 393 So. 2d 999 (Ala. 1981); see Vines v. Birmingham Baseball Club, Inc., 450 So. 2d 455, 456 (Ala. 1984); see W. Prosser, Handbook on the Law of Torts, ยง 68 (5th ed. 1984). However, despite the "assumption of the risk" label used by plaintiff's counsel it is clear that the elements of National Security's affirmative defense constitute a form of contributory negligence closely akin to assumption of risk. See McGeever v. O'Byrne, 203 Ala. 266, 82 So. 508 (1919). This kind of contributory negligence "runs to third persons, [e.g., Dennis], regardless of the plaintiff's knowledge of the incompetence of those third persons." Employers Cas. Co. v. Hagendorfer, 393 So. 2d 999, 1001 (Ala. 1981). In other words, this kind of ...


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