Ex parte Ass'n of Cnty. Comm’ns of Ala. Liab. Self-Ins. Fund

• Docket Number: 1210183
• Decision Date: 17 June 2022
• Parties: Ex parte Association of County Commissions of Alabama Liability Self-Insurance Fund, Inc. v. Jackson County et al. In re: Gerald Paulk, as personal representative of the Estate of Amanda Nicole Foster, deceased, et al.
• Court: Alabama Supreme Court

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Ex parte Association of County Commissions of Alabama Liability Self-Insurance Fund, Inc.

In re: Gerald Paulk, as personal representative of the Estate of Amanda Nicole Foster, deceased, et al.
v.
Jackson County et al.

No. 1210183

Supreme Court of Alabama

June 17, 2022

Jackson Circuit Court, CV-21-900059

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PETITION FOR WRIT OF MANDAMUS

STEWART, JUSTICE.

The Association of County Commissions of Alabama Liability Self-Insurance Fund, Inc. ("the Fund"), petitions this Court for a writ of mandamus directing the Jackson Circuit Court ("the trial court") to dismiss an action filed against it based on the purported immunity afforded to it as a liability self-insurance fund ("LSIF") under § 11-30-7, Ala. Code 1975. For the following reasons, we grant the petition.

Background

On January 27, 2020, a fire occurred at "Dock B," a covered dock with 36 boat slips located at the Jackson County Park. That fire resulted in fatalities, injuries, and property damage. In May 2021, ten plaintiffs^[1]sued Jackson County, the Fund, and numerous other defendants asserting, among other claims, wrongful-death, negligence, and wantonness claims. Jackson County is a member of the Fund, which was created pursuant to the Liability Self-Insurance Funds Act, § 11-30-1 et seq., Ala. Code 1975

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("the Act"). The Act provides for the creation of LSIFs by two or more counties "for the purpose of pooling resources and funds to self-insure such counties and/or their officers and employees acting in the line and scope of their employment" from claims for damages. § 11-30-1(1), Ala. Code 1975.

The plaintiffs alleged that the Fund had undertaken a duty to Jackson County, as its insured, to annually, and as otherwise necessary, "inspect and/or audit the premises of the Park and Dock B to assist in implementing and monitoring a safety program" that was intended to identify, prevent, and warn Jackson County about potential hazards, including fire-safety hazards. The plaintiffs alleged that the Fund had failed to exercise reasonable care in conducting those inspections, that it had failed to recognize the safety concerns with Dock B, and that its failures had resulted in the fatalities, injuries, and property losses suffered by the plaintiffs.

The Fund filed a motion to dismiss the claims against it, asserting that § 11-30-7 provides it immunity from such claims. That statute provides:

"No liability self-insurance fund nor the trustees thereof shall be subject to suit by any third party on account of a claim

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against a member county or its officers and employees. It shall incur no liability to any party other than that authorized and contracted for under provisions of [the Act]."

§ 11-30-7. Specifically, the Fund argued that, based on the above language, the plaintiffs were barred from bringing their action against the Fund because, the Fund contended, the plaintiffs were seeking to impose liability on the Fund that it had not "authorized and contracted for." The plaintiffs responded and asserted that the Fund was not entitled to immunity under § 11-30-7 because their claims were directly against the Fund based on its own alleged independent actions and not based on Jackson County's liability.

On November 12, 2021, the trial court entered an order denying the Fund's motion to dismiss. In the order, the trial court determined that the first sentence of § 11-30-7 "authorizes a suit by a third party [against an LSIF] so long as it is not on account of a claim against a member county or its officers." The trial court concluded that, because the plaintiffs had specifically alleged that the Fund itself had committed tortious acts separate and apart from any actions of Jackson County, the first sentence of § 11-30-7 did not provide the Fund immunity. The trial court also rejected the Fund's argument that the second sentence of § 11-

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30-7 immunized LSIFs from liability for their own tortious conduct. The trial court reasoned that, because the first sentence of that statute indicates that an LSIF could be liable to a third party if the action is not based on a claim against a member county, the legislature would not negate the first sentence with the inclusion of a second sentence granting such broad immunity. The trial court also opined that the phrase "shall incur no liability" in the second sentence is intended to merely limit the contractual liabilities of the Fund. The Fund filed a petition for a writ of mandamus to this Court.

Standard of Review

To be entitled to a writ of mandamus, a petitioner must demonstrate "1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court." Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala. 1993). The sole question before this Court is whether the Fund is immune from the plaintiffs' claims asserted against it. Although the denial of a motion to dismiss is generally not reviewable by a...