from Jefferson Circuit Court (CV-15-145)
Miller appeals from a summary judgment entered by the
Jefferson Circuit Court ("the circuit court") in
favor of the City of Birmingham ("the City"), Sandy
Roberts, and Alice Crutchfield (hereinafter referred to
collectively as "the City defendants").
Facts and Procedural History
Jeffrey Miller, Mrs. Miller's husband, was employed by
the City as a firefighter. Unum Life Insurance Company of
America ("Unum") issued a group life and accidental
death and dismemberment policy, identification number 293964
001, to the City on July 1, 2011 ("the policy").
The policy provided life-insurance benefits to eligible
employees of the City. The policy itself has not been
submitted into evidence; however, a summary of the benefits
of the policy was submitted by Mrs. Miller. According to the
summary of benefits, the policy included different
life-insurance benefits for active employees and for retired
employees. Under the policy, as an active employee, the City
paid Mr. Miller's insurance premiums and Mr. Miller was
entitled to a life-insurance benefit of $151, 000, a result
reached by multiplying his annual earnings by 1.75. However,
if Mr. Miller were to become a retiree, he would be required
to pay his life-insurance premiums and would be entitled to
only a $50, 000 life-insurance benefit. The summary of
benefits also included the following provision:
"What happens to your life insurance coverage if you
become disabled? Your life insurance coverage may be
continued for a specific time and your life insurance premium
will be waived if you qualify as described below." The
summary of benefits specified that, in order to be eligible
for a waiver of the life-insurance premiums, the insured had
to "be disabled through your elimination period, "
which is nine months. The summary of benefits further stated:
"When will your life insurance premium waiver begin?
"Your life insurance premium waiver will begin when we
approve your claim, if the elimination period has ended and
you meet the following conditions. Your Employer may continue
premium payments until Unum notifies your Employer of the
date your life insurance premium waiver begins.
"Your life insurance premium will be waived if you meet
"you are less than 60 and insured under the plan.
"you become disabled and remain disabled during the
"you meet the notice and proof of claim requirements for
disability while your life insurance is in effect or within
three months after it ends.
"your claim is approved by Unum.
"After we approve your claim, Unum does not require
further premium payments for you while you remain disabled
according to the terms and provisions of the plan.
"Your life insurance amount will not increase while your
life insurance premiums are being waived. Your life insurance
amount will reduce or cease at any time it would reduce or
cease if you had not been disabled."
2012, Mr. Miller was diagnosed with brain cancer and soon
became unable to perform the duties of his job. Mrs.
Miller's affidavit states that when the Millers
discovered that Mr. Miller's condition was terminal, they
"sought to obtain information about [Mr. Miller's]
life insurance benefit and all other benefits that might be
available." The Millers did not have a copy of the
policy or the summary of benefits at that time. On March 28,
2013, the Millers and Ed Bluemly, Mrs. Miller's
brother-in-law, met with Sandy Roberts, the assistant benefit
administrator and the pension coordinator for the Jefferson
County Personnel Board, and Alice Crutchfield, a personnel
technician for the Jefferson County Personnel Board, to learn
about the benefits available to Mr. Miller. In her affidavit,
Mrs. Miller states the following concerning that meeting:
"At that meeting, we were told that if [Mr. Miller]
could not return to work, he would have to 'retire.'
We wanted to know how we could keep his group life insurance.
We were told by [Roberts and Crutchfield], without any
hesitation, that the only option we had was to convert the
life insurance to retiree life insurance. That meant that the
life insurance level of coverage at $151, 000.00 would drop
to $50, 000.00. We did not like this, but [Roberts and
Crutchfield] were very clear and firm in their statements.
They provided forms and indicated to me and [Mr. Miller] that
[Mr. Miller] would have to sign the forms to convert the
"[Mr. Miller] and I went over the forms and he signed
them before leaving the meeting. ... However, [Roberts and
Crutchfield] spoke very clearly as if they knew what they
were doing and as if they were the authority on the subject
for the City.
"I still wanted a copy of the policy or certificate, as
did my brother-in-law, Ed Bluemly, and we both requested a
copy of the policy. [Roberts and Crutchfield] told us there
was not a copy of the policy or certificate. They could not
obtain one, nor could they tell us how to obtain
concerning the March 28, 2013, meeting, Roberts's
affidavit states that she "did hear ... Crutchfield
referencing UNUM Life Insurance products and specifically
telling [the Millers] that their life insurance policy was
with Unum Insurance." Roberts's affidavit also
states that she did not recall "any persons requesting a
copy of an insurance plan from me during the meeting on or
about March 28, 2013, nor do I recall any other person
requesting an insurance plan from me on behalf of the Millers
at any time after this meeting." Nothing in
Roberts's affidavit disputed Mrs. Miller's and
Bluemly's assertion that Roberts and Crutchfield told the
Millers that they had to convert Mr. Miller's life
insurance from active-employee to retiree life insurance.
Crutchfield's affidavit states that, at the March 28,
2013, meeting, Crutchfield "referenced Unum Life
Insurance beneficiary forms" and that no one
"request[ed] a copy of a life insurance policy."
Crutchfield's affidavit further states that, after the
March 28, 2013, meeting, she "never had any discussions
with [the Millers] concerning life insurance benefits and/or
life insurance policies" and that the Millers never
requested "any life insurance policy and/or certificate
of insurance." Nothing in Crutchfield's affidavit
disputed Mrs. Miller's assertion that Roberts and
Crutchfield told the Millers that they had to convert Mr.
Miller's life insurance from active-employee to retiree
the meeting, the Millers continued to try to obtain a copy of
the policy. To this end, the Millers asked several of Mr.
Miller's coworkers if they had a copy of the policy and,
if so, if they would share it with the Millers. On April 11,
2014, a coworker of Mr. Miller's gave Mrs. Miller a copy
of "a supplemental group life policy" from Unum
under which Mr. Miller's coworker had coverage; it is
undisputed that that supplemental group life policy did not
apply to Mr. Miller.
5, 2014, Mr. Miller died.
In November 2014, Mrs. Miller's attorney sent the City a
letter requesting a copy of the policy. On November 24, 2014,
Peggy Polk, director of the City's office of personnel,
sent Mrs. Miller's attorney a letter and a copy of the
summary of the benefits of the policy. The subject line of
Polk's letter to Mrs. Miller's attorney stated:
"Life Insurance Errors as to Robert [M]iller
(Deceased)." Mrs. Miller's affidavit states that the
letter from Polk was not received until "early December
2014." Mrs. Miller's affidavit states that, upon
reviewing the summary of benefits, the Millers learned that
the policy included "a disability waiver of premium
benefit." Mrs. Miller's affidavit further states:
"It appears that [Mr. Miller] and I were misinformed by
Sandy Roberts and Alice Crutchfield as to the existence of
the disability waiver of premium benefit. This benefit would
have saved us from having to pay for 'retiree life
insurance' and [Mr. Miller] should have instead been able
to keep the full policy benefit of $151, 000.00, at no cost
to us, rather than just $50, 000.00."
City defendants do not dispute the accuracy of this portion
of Mrs. Miller's affidavit.
January 16, 2015, Mrs. Miller filed a claim with the City
alleging that Roberts and Crutchfield had been negligent in
failing to inform the Millers "as to the existence of
the disability waiver of premium benefit" and requesting
$101, 000. In a letter to the City accompanying Mrs.
Miller's claim, Mrs. Miller's attorney stated that
Mrs. Miller "does not contend she will be damaged unless
Unum refuses to undo or correct the issues involved in this
matter." The letter also stated:
"We will be sending a copy of this also to Unum to
request and demand that they pay the full life insurance
proceeds which should have been paid, but for the incorrect
information being provided [by Roberts and Crutchfield]. In
any event, it appears to be prudent to provide this claim
notwithstanding. We will be working with Unum to accomplish
this and if this is not successful we will let the City of
Unum denied Mrs. Miller's request; Unum was under no
obligation to honor Mrs. Miller's request because Mr.
Miller had voluntarily converted his life insurance to
"retiree life insurance" and Unum acted
4, 2015, Mrs. Miller sued the City defendants, alleging one
claim of misrepresentation. The complaint alleged that the
City defendants "made false representations as to
material facts as to the amount of life insurance Mr. Miller
was allowed to keep in place" and that "these
representations were reckless, wanton, grossly negligent,
and/or negligent." The complaint further alleged that
Mrs. Miller "reasonably relied on these representations
and had no evidence that the representations were false until
after receiving a copy of the [policy] provided by [Polk] in
December of 2014." Mrs. Miller requested, among other
things, damages in the amount of $101, 000 "in lost life
January 20, 2016, the City defendants filed a motion for a
summary judgment. The City defendants argued that they were
entitled to a summary judgment because (1) Mrs. Miller's
claim was barred both by the statute of limitations set forth
in § 6-2-38, Ala. Code 1975, and by § 11-47-23,
Ala. Code 1975, the notice-of-claim statute for
municipalities, (2) the City is immune from Mrs. Miller's
misrepresentation claim under § 11-47-190, Ala. Code
1975, (3) Mrs. Miller failed to add Unum, an allegedly
indispensable party, which, the City defendants argued,
deprived the circuit court of subject-matter jurisdiction,
and (4) Unum is jointly liable with the City defendants and,
thus, required to be joined as a party under §
11-47-191, Ala. Code 1975.
point thereafter, Mrs. Miller filed notices of depositions of
Roberts and Crutchfield. On January 29, 2016, the City
defendants filed a "motion to quash" Mrs.
Miller's notices of depositions of Roberts and
Crutchfield. The sole basis for the City defendants'
motion to quash the depositions was that Unum was an
indispensable party under Rule 19. The City defendants also
argued that Unum's absence from the action deprived the
circuit court of subject-matter jurisdiction over Mrs.
Miller's claim against them. Mrs. Miller filed a response
to the City defendants' motion to quash.
February 27, 2016, Mrs. Miller filed a "motion for
partial summary judgment on the issue of liability."
Mrs. Miller argued that she had presented substantial
evidence to support each element of her misrepresentation
claim and that there was no genuine issue of material fact.
In support of her summary-judgment motion, Mrs. Miller
presented, among other things, a copy of the summary of
benefits and several other documents concerning the policy,
the affidavit of Bluemly, and Mrs. Miller's own
March 4, 2016, the City defendants filed a motion to strike
certain exhibits to Mrs. Miller's summary-judgment motion
and references to those exhibits in the motion. Specifically,
the City defendants argued that Mrs. Miller's
summary-judgment motion contained facts that were not
supported by specific references to Mrs. Miller's
exhibits. The City defendants requested that the circuit
court strike the following portions of Mrs. Miller's
brief in support of her summary-judgment motion and the
following evidence she submitted in support of her
"(1) strike all unsupported allegations of [Mrs.
Miller's] Brief or instruct [Mrs. Miller] to resubmit the
brief in compliance with Rule 56(c)(1)[, Ala. R. Civ. P.];
(2) exclude all UNUM insurance documents constituting hearsay
([Mrs. Miller's] Exhibit D & F); (3) exclude the
Bluemly Affidavit ([Mrs. Miller's] Exhibit C) as
impermissible hearsay; and (4) exclude all portions of [Mrs.]
Miller['s] Affidavit ([Mrs. Miller's] Exhibit B) that
are not based on personal knowledge or admissible
City defendants identified the following specific portions of
Mrs. Miller's affidavit they sought to strike:
"I still wanted a copy of the policy or certificate, as
did my brother-in-law, Ed Bluemly, and we both requested a
copy of the policy. ...
"... Finally, less than 30 days before Jeffrey died, a
fellow battalion friend of Jeffery's named Buddy logged
into his computer and found a supplemental group life policy
.... [H]e claimed he obtained a copy off his computer at work
and then e-mailed it to his wife and then his wife e-mailed
it to me. I am not saying that I was there when his friend
obtained a copy from the computer at work, nor was I there
when his wife, Sabrina, e-mailed the document to me. ...
"I do not know too much about policies, but my
brother-in-law, Ed Bluemly, does and I let him look it over.
He assured me that his was not the correct policy, as it did
not have the correct terms and information. ..."
March 7, 2016, Mrs. Miller responded to the City
defendants' summary-judgment motion. Mrs. Miller argued
that she had asserted her claim within the applicable
statutory limitations period and that the City defendants
were barred by the doctrine of equitable estoppel from
asserting that § 11-47-23 barred her misrepresentation
claim. Mrs. Miller also argued that Unum is not an
indispensable party under Rule 19, Ala. R. Civ. P. Mrs.
Miller attached to her response most of the same exhibits
that she had submitted in support of her motion for a partial
summary judgment. Further, Mrs. Miller presented a Rule
56(f), Ala. R. Civ. P., ...