Geico Gen. Ins. Co. v. Curtis

• Citation: 279 So.3d 1171
• Decision Date: 21 December 2018
• Docket Number: 2170907
• Parties: GEICO GENERAL INSURANCE COMPANY v. Gainer CURTIS
• Court: Alabama Court of Civil Appeals

279 So.3d 1171

GEICO GENERAL INSURANCE COMPANY

v.Gainer CURTIS

2170907

Court of Civil Appeals of Alabama.

December 21, 2018

Victor A. DuBose, Daphne, for appellant.

Jeremy S. Gaddy of Huie, Fernambucq & Stewart, LLP, Birmingham, for appellee.

THOMAS, Judge.

On February 4, 2016, Bonnie S. Busby was injured in a collision between her automobile and an automobile driven by Gainer Curtis. GEICO General Insurance Company ("GEICO") is Busby's insurer; pursuant to its contract with Busby, GEICO is required to provide underinsured-motorist ("UIM") benefits to Busby. In the summer of 2017, Busby notified GEICO that Curtis's insurer, Allstate Insurance Company ("Allstate"), had offered to settle her claim for Curtis's policy limits of $25,000. In compliance with the procedure set out in Lambert v. State Farm Mutual Automobile Insurance Co., 576 So.2d 160 (Ala. 1991), GEICO refused to consent to the proposed settlement and paid Busby $25,000.¹ Busby died in September 2017.

On February 5, 2018, GEICO sued Curtis in the Mobile Circuit Court ("the trial court"), seeking as damages reimbursement of the $25,000 Lambert advance it had made to Busby. Curtis filed a motion to dismiss pursuant to Rule 12(b)(6), Ala. R. Civ. P., or, in the alternative, a motion for a summary judgment, asserting that Busby had died in September 2017, that Busby's personal-injury claim had expired with her, and therefore that GEICO, which had sued as Busby's subrogee, could not maintain a claim against Curtis. Curtis attached to his motion the complaint, a copy of Busby's obituary, and a copy of the $25,000 check GEICO had issued to Busby. GEICO responded to Curtis's motion, relying on Safeway Insurance Co. of Alabama v. State Farm Mutual Automobile Insurance Co., 980 So.2d 414, 416 (Ala. Civ. App. 2007), to argue that its claim survived Busby's death.

The trial court held a hearing on Curtis's motion on June 1, 2018; no transcript of that hearing was provided to this court. On June 5, GEICO filed a supplemental response to Curtis's motion; in that supplemental response, GEICO explained that it had a right of reimbursement not from Curtis but from Allstate. Contemporaneously with the supplemental response, GEICO filed a motion for leave to amend its complaint to name Allstate as a defendant, to which it attached, among other things, a proposed amended complaint; the trial court did not rule on GEICO's motion for leave to amend, and Allstate was not added as a party or served with the amended complaint.

On June 6, 2018, the trial court entered an order dismissing GEICO's complaint against Curtis. However, the trial court expressly stated in its order that it was dismissing GEICO's complaint because it had been filed outside the applicable two-year statute of limitations. See Ala. Code 1975, § 6-2-38 (prescribing a two-year statute of limitations for tort claims). GEICO timely filed a postjudgment motion, in which it explained that, because February 4, 2018, which was two years after the date of the collision, fell on a Sunday, its February 5, 2018, complaint had been timely filed pursuant to Ala. Code 1975, § 1-1-4. GEICO's postjudgment motion was denied by operation of law; however, in an order entered on July 30, 2018, after recognizing that the postjudgment motion had been denied by operation of law, the trial court indicated that it would have denied the motion because, it stated, "[t]he cases GEICO cited were decided back in the day when we did not have AlaCourt and Alafile. Now that we have 24/7 access, this court is of the opinion that your statute [of limitations] ran." GEICO timely filed a notice of appeal on July 17, 2018.

Curtis's motion sought either a dismissal or a summary judgment and included matters outside of the pleadings; thus, at first glance, it would appear that the motion to dismiss was, in fact, a motion for a summary judgment. Rule 12(b), Ala. R. Civ. P.; see also Graveman v. Wind Drift Owners' Ass'n, Inc., 607 So.2d 199, 202 (Ala. 1992) ("[Conversion of a motion to dismiss to a motion for a summary judgment] is proper where, as here, the parties, in support of, or in opposition to, the motion, file matters outside the pleadings and these matters are not excluded by the court."). However, more recently our supreme court has indicated that when a "trial court's order does not refer to or indicate that it considered any document other than the complaint," "refers only to [a] motion[ ] to dismiss," and "dismisses the complaint," we cannot presume that "the trial court considered the matters outside the complaint" and a "motion[ ] to dismiss [will] not [be] converted to a motion[ ] for a summary judgment." Ex parte Price, 244 So.3d 949, 955 (Ala. 2017). Thus, we will apply the standard of review applicable to a motion to dismiss.

"The appropriate standard of review under Rule 12(b)(6) [, Ala. R. Civ. P.,] is whether, when the allegations of the complaint are viewed most strongly in the pleader's favor, it appears that the pleader could prove any set of circumstances that would entitle [the pleader] to relief. Raley v. Citibanc of Alabama/Andalusia, 474 So.2d 640, 641 (Ala. 1985) ; Hill v. Falletta, 589 So.2d 746 (Ala. Civ. App. 1991). In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether [he] may possibly prevail. Fontenot v. Bramlett, 470 So.2d 669, 671 (Ala. 1985) ; Rice v. United Ins. Co. of America, 465 So.2d 1100, 1101 (Ala. 1984). We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief."

Nance v. Matthews, 622 So.2d 297, 299 (Ala. 1993).

On appeal, GEICO raises four arguments. First, GEICO argues that the trial court erred by dismissing its complaint on the ground that the statute of limitations had expired before the complaint was filed. Secondly, GEICO complains that the trial court erred by not considering its motion for leave to amend its complaint before dismissing the action. GEICO next contends that it has a valid claim for subrogation against either Curtis or Allstate. Finally, GEICO complains that the trial court erred in denying its postjudgment motion.

Because it might implicate the subject-matter jurisdiction of this court, we first address GEICO's argument that the trial court erred by failing to consider its motion for leave to amend its complaint before dismissing its action against Curtis. Although GEICO was entitled to amend its complaint without seeking leave of court, it did not do so.² Instead, GEICO sought leave to amend its complaint, which motion had not been granted at the time the trial court dismissed GEICO's action. Even were we to consider GEICO's filing of the motion for leave to amend as equivalent to the filing of an amended complaint, Allstate had not been served with process, and would have been, at best, an unserved defendant at the time the trial court entered its order dismissing the action against Curtis. According to Rule 4(f), Ala. R. Civ. P.,

"[w]hen there are multiple defendants and the summons (or other document to be served) and the complaint have been served on one or more, but not all, of the defendants, the plaintiff may proceed to judgment as to the defendant or defendants on whom process has been served and, if the judgment as to the defendant or defendants who have been served is final in all other respects, it shall be a final judgment."

The order dismissing the complaint against Curtis is, therefore, a final judgment capable of supporting an appeal. See Glasgow v. Jackson Land Surveying, LLC, 236 So.3d 111, 114 (Ala. Civ. App. 2017) (determining that a judgment in favor of the only served defendant was final despite the fact that the plaintiff had recently amended his complaint to name two additional defendants but had not yet served those defendants with process); and Harris v. Preskitt, 911 So.2d 8, 14 (Ala. Civ. App. 2005) (stating that an unserved defendant had never been a party to the action and that the judgment was final as to the served defendants without need for a judgment dismissing the unserved defendant). Regarding GEICO's argument that the trial court was required to consider the motion for leave to amend before proceeding to consider Curtis's motion to dismiss, we note that GEICO has provided no authority supporting such a conclusion and that we know of no such authority. See White Sands Grp., L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala. 2008). ("Rule 28(a)(10)[, Ala. R. App. P.,] requires that arguments in briefs contain discussions of facts and relevant legal authorities that support the party's position. If they do not, the arguments are waived."); see also Rule 28(a)(10), Ala. R. App. P. (requiring an appellant to provide authority for the legal arguments asserted in his or her brief). Accordingly, we cannot conclude that the trial court's order dismissing GEICO's action against Curtis should be reversed on this ground.

We turn now to GEICO's argument that the trial court incorrectly concluded that its claim against Curtis was time-barred. On this point, we agree with GEICO. As noted earlier, the accident giving rise to this action occurred on February 4, 2016, and the two-year statute of limitations governing tort claims applies. February 4, 2018, was, as GEICO pointed out to the trial court in its postjudgment motion, a Sunday. Thus, pursuant to § 1-1-4, which provides that "if the last day [upon which any act is provided by law to be done] is Sunday, or a legal holiday as defined in [ Ala. Code 1975, §] 1-3-8, or a day on which the office in which the act must be done shall close as permitted by any law of this state, the last day also must be excluded, and the next succeeding secular or working day shall be counted as the last day within which the act may be done," GEICO's complaint was, in fact, filed within the statute of limitations on...