Advantage Sales of Alabama, Inc. v. Clemons

• Decision Date: 17 August 2007
• Docket Number: 2051066.,2051065.,2050755.
• Citation: 979 So.2d 114
• Parties: ADVANTAGE SALES OF ALABAMA, INC. v. Carol S. CLEMONS. Liberty Mutual Insurance Company v. Carol S. Clemons. PMA Insurance Group v. Carol S. Clemons.
• Court: Alabama Court of Civil Appeals

979 So.2d 114

ADVANTAGE SALES OF ALABAMA, INC. v. Carol S. CLEMONS.

Liberty Mutual Insurance Company v. Carol S. Clemons.

PMA Insurance Group v. Carol S. Clemons.

2050755.

2051065.

2051066.

Court of Civil Appeals of Alabama.

August 17, 2007.

Joseph H. Driver and Donald B. Kirkpatrick II of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for appellant Advantage Sales of Alabama, Inc.

J. Wesley Hughes of The Law Office of Earl H. Lawson, Jr., Birmingham, for appellant Liberty Mutual Insurance Company.

Matthew C. Williams and Zachary J. Peagler of Estes, Sanders & Williams, LLC, Birmingham, for appellant PMA Insurance Group.

Kenneth D. Haynes of Haynes & Haynes, P.C., Birmingham, for appellee.

THOMPSON, Presiding Judge.

Carol S. Clemons sued her former employer, Advantage Sales of Alabama, Inc. ("Advantage"), seeking to recover workers' compensation benefits based on alleged work-related injuries that she sustained on June 20, 2000, February 23, 2001, and March 26, 2002, while she was employed by Advantage. Clemons claimed that she had injured her right shoulder on June 20, 2000, that she had developed carpal tunnel syndrome in her right arm and wrist on February 23, 2001, and that she had sustained injuries to her elbows on March 26, 2002. Advantage answered and denied liability.

At the time of the June 20, 2000, and the February 23, 2001, injuries, Advantage was insured by Legion Insurance Company ("Legion"). On March 28, 2002, Legion was ordered into rehabilitation by a Pennsylvania trial court. On July 28, 2003, the Pennsylvania trial court declared Legion insolvent and entered an order of liquidation. As a result of Legion's insolvency, the Alabama Insurance Guaranty Association ("AIGA") assumed Legion's obligations with respect to Clemons's June 20, 2000, and February 23, 2001, claims against Advantage. See § 27-42-8(a)(2), Ala.Code 1975. On February 23, 2004, Clemons and Advantage entered into a consent order settling all workers' compensation claims related to Clemons's June 20, 2000, injury to her shoulder and Clemons's February 23, 2001, injury to her right arm and wrist. The order left the issue of future medical benefits open.

On March 21, 2005, Clemons filed her first amended complaint in which she alleged that in or about July 2004 she developed carpal tunnel syndrome in both of her hands and wrists. Clemons named Liberty Mutual Insurance ("Liberty") and The PMA Insurance Group ("PMA") as defendants and asked the court to determine which carrier was responsible for the payment of Clemons's workers' compensation claims.¹ Both Liberty and PMA were workers' compensation insurance carriers for Advantage during the time Clemons allegedly suffered her injuries. On June 1, 2005, Clemons amended her complaint a second time to add AIGA as a defendant because, she asserted, she was uncertain whether the carpal tunnel syndrome she alleged had developed in or about July 2004 was a recurrence of her February 2001 injury or was a new injury.

On August 23, 2005, AIGA filed a motion for a summary judgment, and on October 12, 2005, PMA filed a motion for a summary judgment. On January 24, 2006, the trial court entered a summary judgment in favor of AIGA; the trial court did not rule on PMA's summary-judgment motion. Following the presentation of ore tenus evidence, the trial court entered a detailed final judgment on May 24, 2006, in which it found Clemons to be permanently and totally disabled as the result of her work-related injuries. The trial court apportioned the payment of compensation benefits equally between Liberty and PMA. On June 14, 2006, Advantage appealed.

On June 21, 2006, PMA filed a postjudgment motion in which it argued that the trial court had erred in apportioning liability between successive insurance carriers in violation of the "last injurious exposure" rule.² On August 1, 2006, the trial court entered an amended final judgment in which it granted PMA's postjudgment motion, found Clemons's July 2004 injury to be a new injury or condition that occurred during Liberty's policy coverage, and reapportioned liability to hold Liberty responsible for payment of Clemons's medical bills related to the July 2004 injury. PMA and Liberty timely appealed. This court granted a joint motion filed by Advantage, PMA, and Liberty to consolidate the three appeals.

Advantage, PMA, and Liberty raise several issues on appeal. Advantage contends that the trial court erred by considering evidence that Clemons suffered from depression as a result of her work-related injuries, that substantial evidence did not support a finding that Clemons was permanently and totally disabled, and that Clemons was not entitled to recover permanent-total-disability benefits outside of the schedule set forth in § 25-5-57(a), Ala. Code 1975. PMA and Liberty both contend that the trial court erred in its application of the "last injurious exposure" rule. However, as discussed below, the dispositive issue, raised by Advantage on appeal, is whether the trial court erred by considering evidence of a psychological injury when that issue was raised by Clemons for the first time at trial. Advantage specifically contends that it did not learn of Clemons's allegation that she suffered from depression as a result of her work-related injuries until the trial had commenced, that it objected to the submission of evidence regarding Clemons's depression at trial, and that the trial court's consideration of that evidence unduly prejudiced Advantage.

Rule 15(b), Ala. R. Civ. P., states, in pertinent part:

"When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice the party in maintaining the party's action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence .... The Court is to be liberal in granting permission to amend when justice so requires."

"The determination of whether an issue has been tried by the express or implied consent of the parties within the meaning of Rule 15(b), Ala. R. Civ. P., is a matter that lies within the discretion of the trial court." Hathcock v. Hathcock, 685 So.2d 736, 738 (Ala.Civ.App.1996) (citing McCollum v. Reeves, 521 So.2d 13 (Ala.1987)). The trial court's determination as to whether an issue has been tried by consent will not be reversed on appeal absent an abuse of that discretion. Id.

"`"[I]f Rule 15 is to be of any benefit to the bench, bar, and the public, the trial judges must be given discretion to allow or refuse amendments.... We state also that Rule 15 must be liberally construed by the trial judges. But, that liberality does not include a situation where the trial on the issues will be unduly delayed or the opposing party unduly prejudiced."'"

Tounzen v. Southern United Fire Ins. Co., 701 So.2d 1148, 1150 (Ala.Civ.App.1997), quoting Hayes v. Payne, 523 So.2d 333, 334 (Ala.1987), quoting in turn Stead v. Blue Cross-Blue Shield of Alabama, 294 Ala. 3, 6, 310 So.2d 469, 471 (1975).

Our review of the record indicates that Clemons did not allege that she suffered from depression in her original complaint or in the two subsequent amendments to her complaint. In her brief on appeal, Clemons contends that Advantage was initially put on notice that she suffered from depression as a result of her physical, work-related injuries when she testified in a deposition before trial regarding her depression. Clemons's deposition was not submitted as evidence at trial; instead, it was attached as an exhibit to the summary-judgment motion filed by PMA before trial. A copy of the deposition contained in the record indicates that Clemons testified that she suffered from depression because of "this whole ordeal" and explained in detail how her depression had affected her daily life. However, the record indicates that when she was asked in her deposition if she was seeking compensation based on depression in her workers' compensation action, Clemons responded in the negative.

The record reveals that counsel for Advantage objected at trial to questioning regarding Clemons's depression. During the direct examination of Clemons, the following exchange occurred:

"[CLEMONS]: I am a lot worse today than back then, because I was slammed against the wall with depression. ...

"I cannot concentrate. I am fatigued. I could not sleep. I was put on Xanax, Ambien. I was already taking Zoloft.

"... But I have been depressed for a long period of time. No income, it's mental, it's physical. Lack of sleep; when you don't sleep, you can't function.

"[COUNSEL FOR CLEMONS]: How does that depression manifest itself in your daily activities?

"[COUNSEL FOR ADVANTAGE]: You Honor, I'm going to object to this line of questioning and testimony. There's been no allegation whatsoever in the summons or complaint or the amended complaints with regards to depression. We're hearing about it today.

"[COUNSEL FOR CLEMONS]: Depression is a by-product of her physical injuries, and she's testified about it at deposition that was taken less than two years ago.

"[THE TRIAL COURT]: Restate your question.

"[COUNSEL FOR ADVANTAGE]: She specifically stated that she was not claiming depression in her lawsuit, on page 59, your...