from Limestone Circuit Court (CV-12-900356)
defendant below, Travelers Indemnity Company of Connecticut
("Travelers"), appeals from Limestone Circuit
Court's denial of its postjudgment motion seeking to set
aside a judgment entered on a jury verdict in favor of the
plaintiff below, Angela Worthington. We affirm.
and Procedural History
April 27, 2011, Worthington was a passenger in a vehicle
being driven by her husband. A friend of the Worthingtons and
the Worthingtons' two minor children were also passengers
in the vehicle. While the Worthingtons' vehicle was
stopped at a nonfunctioning traffic light, it was struck in
the rear by a vehicle being operated by Camille Thomas.
Worthington and the other occupants in her vehicle were
injured as a result of the accident.
time of the accident, the company Worthington's husband
owned had a comprehensive insurance policy with Travelers
that included uninsured-motorist ("UM") and
underinsured-motorist ("UIM") coverage. The policy
endorsement dealing with UM/UIM coverage provided, in
"This insurance does not apply to:
"1. Any claim settled without our consent.
"However, this exclusion does not apply to a settlement
made with the insurer of a vehicle described in Paragraph
b. of the definition of 'uninsured motor
"E. Changes in Conditions
"These conditions are changed for Uninsured Motorists
Coverage as follows:
"2. Duties in the Event of Accident, Claim Suit
or Loss is changed by adding the following:
"c. A person seeking Uninsured Motorists Coverage must
also promptly notify us in writing of a tentative settlement
between the 'insured' and the insurer of a vehicle
described in Paragraph b. of the definition
of an 'uninsured motor vehicle' and allow us 30 days
to advance payment to that insured in an amount equal to the
tentative settlement to preserve our rights against the
insurer, owner, or operator of such a vehicle described in
Paragraph b. of the definition of
'uninsured motor vehicle.'
"F. Additional Definitions
"As used in this endorsement:
"3. 'Uninsured motor vehicle' means a land motor
vehicle or 'trailer':
"b. That is an underinsured motor vehicle. An
underinsured motor vehicle is a land motor vehicle or
'trailer' for which the sum of all liability bonds or
policies at the time of an 'accident' provides a
limit that is less than the amount an 'insured' is
legally entitled to recover as damages caused by the
type in original.)
December 7, 2012, Worthington's husband, individually,
and Worthington, individually and as mother and next friend
of the two minor children, filed a complaint in the Limestone
Circuit Court against Thomas and Travelers. The complaint
included claims of negligence, wantonness, and negligence per
se against Thomas. Worthington and her husband also included
claims of loss of consortium. Finally, the complaint included
a UM/UIM claim against Travelers.
January 18, 2013, Travelers filed its answer to the
complaint. In its answer, Travelers set forth affirmative
defenses, but it did not set forth any policy-based defenses.
October 28, 2014, Worthington's counsel notified
Travelers' counsel that Worthington and Thomas had
reached a proposed agreement to resolve Worthington's
claims against Thomas for $56, 250, plus mediation costs and
filing fees. Travelers advised Worthington of its intent to
maintain its rights under Lambert v. State Farm Mutual
Automobile Insurance Co., 576 So.2d 160 (Ala. 1991), and
advanced the amount of the proposed settlement to
Worthington; Thomas was not released, and the action
therefore proceeded with her remaining as a defendant.
29, 2015, Worthington filed a motion for a partial summary
judgment as to her negligence claim against Thomas.
counsel for Worthington sent a letter to counsel for Thomas
that was dated August 7, 2015, that stated:
"This letter will confirm that my client has authorized
me to reject your offer to settle this case for $85, 000.
Please advise your insured Mrs. Thomas that in the event
there is a verdict in excess of $100, 000, we intend to
execute on some of her assets even though there is a
substantial underinsured motorist policy available. Your
client, the insured, should be advised that we have offered
to resolve this case against her for the policy limits of
$100, 000. I strongly encourage you to alert Mrs. Thomas to
that fact so she might seek independent counsel in her
dealings with Allstate. In the event of a verdict in excess
of $100, 000 it is the Plaintiff's right and option to
satisfy that judgment in whatever ways we deem lawful and
appropriate. That would include executing on any bank
accounts, personal property or other assets owned by the
insured. Of course that will not be necessary if Allstate
will simply tender the policy limits.
"This letter is being written so there is no
misunderstanding or future controversy over Allstate's
action in this case. While I do not enjoy executing upon the
assets of an individual, I believe that Allstate has not
acted in good faith in working to resolve this claim. As a
result, the personal property and assets of its insured are
being exposed to the possibility of a substantial verdict,
and I believe Allstate should be liable for any excess
"My client's offer to accept Allstate's policy
limits while preserving its underinsured motorist claim shall
expire August 10th, 2015 at 4:00 p.m. central standard time.
Should you have any questions or need assistance please do
not hesitate to call."
August 10, 2015, counsel for Thomas contacted counsel for
Travelers and informed him that Worthington had entered into
a settlement agreement with Thomas's insurer, Allstate.
The agreement provided that Worthington would accept $95, 000
in exchange for Worthington's agreement to dismiss Thomas
from the lawsuit with prejudice. At 11:13 a.m. on August 10,
2015, counsel for Worthington filed a letter informing the
trial court that Worthington and Thomas had reached a pro
tanto settlement and that the case would proceed as a UIM
claim against Travelers. The letter also addressed scheduling
issues that had arisen due to the death of the mother of one
of the witnesses. In addressing scheduling, counsel for
stated that, because a response to Worthington's motion
for a partial summary judgment had not been filed, he assumed
that liability would not be in question and that the only
issue would be damages under the UIM policy.
p.m. on August 10, 2015, Worthington filed a motion in
limine. Among other things, she sought to exclude any
evidence, mention, reference, or attempt to introduce
evidence of the settlement between Worthington and Thomas. In
her motion, Worthington argued:
"The settlement between [Worthington] and Ms. Thomas is
completely irrelevant to Travelers' liability, and it is
not admissible. Evidence must be excluded under Ala. R. Evid.
403 if 'its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues,
or misleading the jury, or by considerations of undue delay,
waste of time, or needless presentation of cumulative
evidence.' Evidence of the settlement is inadmissible
because it has nothing to do with the issue before this
Court, and it will only serve to confuse the jury."
did not respond to the motion in limine. The record does not
reflect a ruling by the trial court on the motion. In fact,
the notation on the case-action-summary sheet includes an
entry on August 13, 2015, that states: "C002-IN
LIMINE/NO ACTION." However, Travelers asserts that it is
undisputed that the trial court granted the motion in limine.
case was called for trial at 9:00 a.m. on August 11, 2015.
Travelers did not raise any arguments regarding the
settlement agreement between Worthington and Thomas.
Additionally, it never asserted that Worthington had
forfeited her coverage under the policy by entering into the
settlement agreement with Thomas without providing Travelers
notice of the settlement and did not move to amend its answer
to include a forfeiture-of-coverage defense. Subsequently,
the trial court conducted voir dire, the jury was empaneled,
and the trial was then recessed for the day at 2:00 p.m.
a.m. on August 12, 2015, Worthington and Thomas filed a
"Stipulation and Agreement to Dismiss Fewer Than All
Defendants" in which they represented that "they
have resolved the differences between themselves and agree
for and request the Court to dismiss all of said
plaintiff's claims against said defendant with prejudice.
It is expressly understood that the plaintiff's claims as
to remaining defendant, Travelers Indemnity Company of
Connecticut, remain active and pending." The trial court
subsequently entered an order dismissing Worthington's
claims against Thomas with prejudice and dismissing Thomas
from the action. Travelers did not respond to this motion
or object to Thomas's dismissal.
trial of this case resumed at 9:00 a.m. on August 12, 2015.
Again, Travelers did not raise any argument that Worthington
had forfeited her UIM coverage by settling her claims against
Thomas without first complying with the procedures set out in
Lambert and in the UIM policy. In fact, after the
trial court gave the jury its preliminary instructions, the
following occurred during a bench conference:
"[DEFENSE COUNSEL]: Your Honor, yesterday afternoon we
talked about the policy and the payment and we had
represented to the Court that we were not going to contest
that the policy was in force and effect at the time. And
it's my understanding that [Worthington's counsel] is
going to at some point read a portion of the policy to the
jury and I would just object to that on the record because
it's not relevant.
"THE COURT: If there's no dispute about the policy
being in question and covered, I wouldn't get into the
details of it would be my thinking. I agree with that. Tell
me what y'all's thoughts are.
"[WORTHINGTON'S COUNSEL]: My thought is this: First
of all, if it's an exhibit that goes into evidence, I
think we have a right to refer to it.
I think that's first. So if the policy comes into
evidence, and I think we have the right to offer it into
evidence, then I think any kind of exhibits that's there
we've got a right to refer to.
"But secondly, and importantly, this is a contract
entered into between Travelers and this family. She has a
right I think to refer and point out to the jury these are
the provisions of the contract, you know, we bought this
contract and this is what covers it. A lot of the jurors in
--prospective jurors had questions about, you know, was this
covered by the policy whatnot and we simply want to early in
her testimony offer the contract, show she paid for it, and
refer them to the uninsured motorists portion of the policy.
"And our thought is that if it's an exhibit, and
certainly, the contract should be able to be offered into
evidence and if it's an exhibit that's admitted into
evidence, we ought to have a right to refer to it. I
don't expect to belabor it.
"THE COURT: My only thought is certainly you're
going to do all [that] if you're trying to prove was
there a contract in force and effect, but if the defendant is
stipulating to the fact that there is a contract in force and
effect and she's covered by this and we acknowledge that
she's covered, to me, you know, that's my concern.
"[DEFENSE COUNSEL]: Yes, sir. I don't object to the
introduction of the contract into evidence in the first
"[WORTHINGTON'S COUNSEL]: Well, then I'd like
--I just would like to go further to say that this type of --
I'd like for them to admit if that's --first of all,
I'll do whatever the Court obviously instructs.
"THE COURT: I just want to, you know, I don't want
to overdo something. I want to be very clear about it.
He's agreeing to it and is there any need, is my only
"[WORTHINGTON'S COUNSEL]: And that's fine so
long as we can stand up and say there is absolutely no
dispute by Travelers that this is a type of policy that
covers exactly what we're ...