Jimmy L. Johnson, Jr.
First Acceptance Insurance Company, Inc.
from Lowndes Circuit Court (CV-14-900044)
THOMPSON, PRESIDING JUDGE.
28, 2014, Jimmy L. Johnson, Jr., filed in the Lowndes Circuit
Court ("the trial court") a complaint against First
Acceptance Insurance Company, Inc. ("First
Acceptance"),  seeking a judgment declaring that he was
entitled to underinsured-motorist ("UIM") coverage
under an insurance contract between Johnson and First
Acceptance. In his complaint, Johnson also sought damages on
claims of breach of contract and bad-faith failure to pay.
First Acceptance answered and denied liability. We note that
both parties moved, separately, to dismiss the bad-faith
claim, and on September 2, 2014, the trial court entered an
order dismissing that claim.
moved for a partial summary judgment on his claim seeking
declaratory relief. First Acceptance opposed that
summary-judgment motion, and it filed a motion for a summary
judgment on Johnson's claims. On March 17, 2016, the
trial court entered a judgment in which it denied
Johnson's summary-judgment motion, denied a motion to
strike filed by Johnson, and entered a summary judgment in
favor of First Acceptance. In response to a motion by
Johnson, the trial court, on April 15, 2016, entered an order
purporting to certify the March 17, 2016, judgment as final
pursuant to Rule 54(b), Ala. R. Civ. P. We note, however,
that the March 17, 2016, judgment, because it ruled on all of
Johnson's claims, was a final judgment. Johnson's
April 26, 2016, notice of appeal was timely with respect to
both the March 17, 2016, judgment and the April 15, 2016,
order purporting to certify the judgment as final. Our
supreme court transferred the appeal to this court pursuant
to § 12-2-7(6), Ala. Code 1975.
materials submitted to the trial court indicate the following
pertinent facts. On October 18, 2013, Johnson was involved in
a motor-vehicle accident caused by an underinsured driver.
Johnson had a policy of automobile insurance with First
Acceptance, and he sought to recover UIM benefits under that
policy. First Acceptance denied Johnson's claim,
asserting that Johnson had declined UIM coverage.
Alabama, UIM coverage, which is at issue in this case, is a
subset of uninsured-motorist coverage, and it is governed by
§ 32-7-23, Ala. Code 1975. State Farm Mut. Auto.
Ins. Co. v. Motley, 909 So.2d 806, 810-811 (Ala. 2005).
"'[U]ninsured/underinsured motorist benefits ... are
mandated by § 32-7-23, Code of Alabama (1975). The
purpose of the statute is to provide
"'"coverage ... for the protection of persons
insured thereunder who are legally entitled to recover
damages from the owners or operators of uninsured motor
vehicles."'"'" State Farm Mut.
Auto. Ins. Co. v. Motley, 909 So.2d at 811 (quoting
Auto-Owners Ins. Co. v. Hudson, 547 So.2d 467, 468
(Ala. 1989), quoting in turn Alabama Farm Bureau Mut.
Cas. Ins. Co. v. Clem, 49 Ala.App. 457, 461, 273 So.2d
218, 221 (Ala. Civ. App. 1973), quoting in turn Safeco
Ins. Co. of America v. Jones, 286 Ala. 606, 609, 243
So.2d 736, 737-38 (1970)).
32-7-23(a) governs uninsured-motorist coverage and has been
interpreted as requiring an applicant reject UIM coverage in
writing. See Continental Cas. Co. v. Pinkston, 941
So.2d 926, 929 (Ala. 2006) (interpreting § 32-7-23(a) as
"requir[ing] that every automobile-liability-insurance
policy issued or delivered in Alabama provide
uninsured/underinsured-motorist coverage with limits for
bodily injury or death of at least $20, 000 per person,
unless the coverage is specifically rejected in writing by
the named insured."). "The Uninsured Motorist
Statute, Code 1975, § 32-7-23, absent rejection by the
named insured, mandates uninsured motorist coverage for the
protection of persons insured under a motor vehicle liability
policy." Holloway v. Nationwide Mut. Ins. Co.,
376 So.2d 690, 694 (Ala. 1979). Any "rejection of
uninsured motorist coverage will be effective only if signed
in writing by the named insured." Progressive Cas.
Ins. Co. v. Blythe, 350 So.2d 1062, 1065 (Ala. Civ. App.
1977). See also State Farm Mut. Auto. Ins. Co. v.
Martin, 292 Ala. 103, 106, 289 So.2d 606, 609 (1974)
(explaining that an insurer must offer to provide
uninsured-motorists' coverage but that an insured may
reject that coverage in writing).
case, the parties do not dispute that Johnson did not
physically sign a paper insurance application or contract, or
a form pertaining to UIM coverage, by using a pen. Rather,
First Acceptance contends that Johnson signed the application
for insurance electronically and that his signature declining
UIM coverage is his electronic signature.
Uniform Electronic Transactions Act ("the UETA"),
§ 8-1A-1 et seq., Ala. Code 1975, governs matters such
as electronic signatures on contracts. Among other things,
the UETA provides that, in certain contexts, "[i]f a law
requires a record to be in writing, an electronic record
satisfies the law, " and that, "[i]f a law requires
a signature, an electronic signature satisfies the law."
§ 8-1A-7(c) and (d), Ala. Code 1975. Before the trial
court, First Acceptance argued that an insured's
electronic signature could operate to allow an insured to
reject UIM coverage. The trial court, in granting the summary
judgment in favor of First Acceptance, appears to have agreed
with First Acceptance's argument.
argues on appeal that the trial court erred in entering a
summary judgment in favor of First Acceptance. In his brief
on appeal, Johnson points out that the appellate courts of
this state have not addressed whether an electronic signature
under the UETA may operate as an effective
"written" rejection of UIM coverage. He asserts, in
one sentence of his appellate brief, that "substantive
state laws requiring actual signatures, or a waiver of UIM
coverage, must be in a writing signed by the insured, "
and that caselaw requiring a rejection of UIM coverage to be
in writing is in conflict with the UETA. However, other than
that conclusory sentence, Johnson does not argue that the
trial court erred in determining that an electronic signature
was effective in rejecting UIM coverage. In his brief before
this court, Johnson does not identify any portion of the UETA
that he contends is in conflict with § 32-7-23 or
Alabama caselaw interpreting § 32-7-23(a) as requiring
the rejection of UIM coverage to be in writing; he does not
develop any argument that a requirement of a signature cannot
be satisfied by an electronic signature under § 8-1A-7.
It is not the function of this court to create and develop an
argument on behalf of a party or to perform that party's
legal research to support such an argument. McLemore v.
Fleming, 604 So.2d 353 (Ala. 1992); Spradlin v.
Spradlin, 601 So.2d 76, 79 (Ala. 1992). We decline to
address an issue of first impression in the absence of a
properly developed argument from an interested
appellant. Accordingly, for the purposes of resolving
this appeal, we do not address the trial court's
determination that an electronic signature may suffice to
waive UIM coverage, and, instead, we address the properly
supported arguments set forth in Johnson's brief on
support of its position that Johnson had, by virtue of his
electronic signature, waived UIM coverage, First Acceptance
submitted a copy of the insurance application that contains
Johnson's name in a different type font than that of the
rest of the application. First Acceptance argued that that
different font indicated that Johnson had selected a font and
had electronically signed the part of the insurance
application indicating that he wanted to decline UIM
Acceptance also submitted the July 27, 2015, affidavit of
Tracy D. McCoy, its assistant vice president of underwriting.
McCoy testified that on December 21, 2012, Johnson went to a
First Acceptance office and, "with the assistance of the
local agent, " completed an electronic application for
insurance. McCoy's affidavit explains the manner in which
First Acceptance agents are to assist applicants who are
applying for insurance by computer. In relevant part, McCoy
stated that the agent provides the applicant with a computer
mouse so that the applicant can use the computer to select a
font for his or her electronic signature and to sign his or
her name to certain parts of the insurance application,
including the form pertaining to UIM coverage.
addition, First Acceptance submitted the July 29, 2015,
affidavit of India Thomas, in which Thomas stated that she
was an agent for First Acceptance and that, on December 21,
2012, Johnson completed an application for insurance with her
assistance. Thomas testified in her affidavit regarding the
manner in which applicants are given access to the computer
to electronically sign to accept or reject certain terms of
the insurance application. Thomas stated that she had never
electronically signed an insurance application on behalf of
an applicant. Thomas also testified in her July 29, 2015,
affidavit that, based on her "personal knowledge and
review of the applicable policy application documents, "
Johnson had rejected UIM coverage when applying for insurance
with First Acceptance.
response to First Acceptance's submission in support of
its summary-judgment motion, Johnson argued that Thomas's
affidavit was based on hearsay, was not based on her personal
knowledge, and contradicted certain portions of her
deposition testimony, ...