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Continental National Indemnity Co. v. Fields10/21/2005
2d 302, 307 (Ala. Civ. App. 1979), Fields asserts that Tamms's cause of action seeking UM benefits survives her death.
We agree that Tamms's contractual cause of action survives her death; the fact that her cause of action survives does not, however, answer the ultimate question of whether her estate is "legally entitled to recover" under the uninsured-motorist statute. To satisfy this condition precedent to recovery, Fields, as Tamms's personal representative, must establish that the uninsured motorist, Coultas, is legally liable to the estate for damages. Fields cannot meet this burden. The failure of Tamms's tort cause of action to survive her death provides a complete defense for the uninsured motorist, Coultas, against an action filed by Tamms's estate after her death. As a result, the insured is not "legally entitled to recover" from the uninsured motorist through her estate, and under the plain language of the uninsured-motorist statute as interpreted in Carlton, Tamms's estate is not entitled to UM benefits under the Continental policy or the Progressive policy.
Fields argues that this case is distinguishable from Carlton and the cases we overruled in Carlton because, she argues, Tamms could have sued and recovered from the uninsured motorist in tort before her death. Thus, Fields asserts, this Court should allow Tamms's estate to recover under the uninsured-motorist statute, notwithstanding the fact that the estate cannot recover directly from the uninsured motorist. In effect, Fields asks us to create a new exception to the plain language of the uninsured-motorist statute, which requires the insured to be "legally entitled to recover" from the uninsured motorist. Fields, as personal representative of Tamms's estate, is not legally entitled to recover from the uninsured motorist. The uninsured-motorist statute carves out no exception for causes of action that may have been viable at one time but that are barred by a defense at the time they are filed.
In Carlton, we overruled cases that "carved out judicial exceptions to the legislative determination that an insured could recover uninsured-motorist benefits only when the insured was legally entitled to recover from the uninsured motorist." Carlton, 867 So. 2d at 336. Today, proceeding under Carlton, we refuse to return to the days of judicially created exceptions to the plain language of the uninsured- motorist statute.
Accordingly, we reverse the order denying Continental and Progressive's summary-judgment motion and remand the case for the trial court to enter a summary judgment for Continental and Progressive.
REVERSED AND REMANDED WITH INSTRUCTIONS.
See, Stuart, and Bolin, JJ., concur.
Harwood, J., concurs specially.
HARWOOD, Justice (concurring specially).
I concur fully with the main opinion, based on the facts at issue. The estate of Lisa Gale Tamms never was legally entitled to recover damages from Doyle Coultas, the uninsured motorist. The cause of action that accrued in Tamms's favor against Coultas did not survive her death; thus, her estate, as the plaintiff in the action for UM benefits, was, from its inception, not entitled to recover damages from Coultas. I express no opinion as to what might be the proper analysis in a case in which an action for UM benefits is filed before the insured dies.
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