Alabama Supreme Court Continues to Define Wanton Conduct in Regard to Driving

February 2023 • Source: Bailey Curtis, Clark, May, Price, Lawley, Duncan & Paul, LLC

Recently, the Alabama Supreme Court released its opinion in Renee v. Sines, where the Court examined wanton conduct in the context of a driver using their phone. No. 1210037, 2023 Ala. LEXIS 9 (Feb. 17, 2023). Before Renee, the Court has declined to give examples of what specific actions by a driver constitute wantonness. In the opinion, the Court affirmed that a jury may consider speeding and cell phone use as evidence of wanton conduct, especially where the driver recognizes that each is a potentially dangerous activity. Id. at 6. 

This case arises from an auto accident where the driver, while consciously speeding, took her eyes off the road and picked up her cell phone to change the song.  Passengers in her vehicle had asked her to slow down.  She then ran into traffic that was stopped in front of her before hitting another car head on. 

The Alabama Supreme Court acknowledged that self-destructive behavior may establish wantonness when the conduct simultaneously endangers others and the defendant , such as driving under the consumption of alcohol. The Court affirmed the trial court’s decision, holding that there was substantial evidence the driver acted wantonly by “intentionally violating the speed limit, while actively engaging with her mobile phone while driving, and with the knowledge that her actions constituted a risk of probable harm to herself and her passengers.” 

The driver attempted to argue that she was only momentarily distracted, however, the Court made the distinction that the driver’s conduct rose above mere distraction when the driver the made conscious decision to pick up and engage with her phone.  Thus, making this action a result of a conscious choice, not a mere distraction from inadvertence. The Court further stated, “active phone use like texting, browsing the internet, or engaging with a music app is qualitatively different from distractions that are not the result of a conscious act or that arise from an inadvertent reaction to some external event or stimulus.”

This opinion has the potential to increase amount of wantonness claims that are brought before an Alabama jury. Not only does the Court give examples of what specific actions by a driver constitute wantonness, they also lay the ground work that other distractions that are the result of a conscious act can give rise to a viable wantonness claim.  Defendants can expect to see this logic and argument used in future cases, including commercial vehicle accidents.

Clark, May, Price, Lawley, Duncan & Paul, LLC Hires Four New Attorneys

February 2023 • Source: Clark, May, Price, Lawley, Duncan & Paul, LLC 

CMP Announced the hiring of four new attorneys in recent months:

Anna Alyce Eastburn: Anna Alyce earned her B.A. in Psychology from the University of Alabama, and her Juris Doctorate from Cumberland School of Law.  While in law school, Anna Alyce was a member and a Research and Writing Editor of the American Journal of Trial Advocacy, as well as a member of the National Negotiation Team, Trial Advocacy Board, and Women in Law.

Bailee Curtis: Bailee attended the University of Alabama and double majored in Political Science and Public Relations where she graduated magna cum laude. Bailee earned her Juris Doctorate from Cumberland School of Law.  While at Cumberland Bailee cultivated her advocacy skills in preparation for a career in litigation. There she found success as a member of Cumberland’s award-winning National Trial Team.

Andrew Triplett: Andrew attended Birmingham-Southern College, earning his B.A. in History with a minor in Psychology.  He received his Juris Doctor from Cumberland School of law.  While at Cumberland, Andrew served as the Deputy Chief Justice of the Honor Court as well as Vice Chancellor of the Thomas More Society.  He was a student athlete at Birmingham-Southern as a sprinter and hurdler for the BSC track team.

Anthony Irwin: Anthony received his B.A. with a double major in History and Criminal Justice from the University of Alabama.  He also attended the UA School of law, obtaining his juris doctor. 

BHH Wins Summary Judgment for Municipality in Multimillion-Dollar Fire Case 

February 2023 • Source: Burden, Hafner & Hansen, LLC

Partners Donna L. Burden and Sarah E. Hansen, at Burden, Hafner & Hansen, LLC, in Buffalo, NY, won a Motion for Summary Judgment in Erie County Supreme Court on February 22, 2023, on a multimillion-dollar suit for serious personal injuries to a family of five in a 2017 fire.   The case involved an apartment fire deliberately set by an arsonist, who is still imprisoned for his crimes, pouring accelerant into the interior common stairwell of a multiple unit apartment building.  The Plaintiffs sued the municipality, as well as the property owner, on the basis that it did not properly inspect the property and failed to cite the property owner for code violations.  Plaintiff father sustained severe orthopedic and spinal injuries primarily to his left foot and spine from jumping from the window. The mother was on life support with a severe inhalation injury complicated with respiratory failure, and required prolonged mechanical ventilation and tracheostomy, and sustained severe burns across her shoulder and upper back.  The oldest child, then 5, cut her face on the broken glass on the ground, leaving a scar across her face, and sustained injuries from smoke inhalation, collapsed lungs and burn scars across her head. Another child, then 3, sustained a collapsed lung and bad burns across his forearm and thighs and was transported out of town for burn injuries and skin grafting. The youngest was 6 months old and sustained smoke damage. Four of the Plaintiffs claimed significant PTSD.   The Court granted our Summary Judgment Motion based on lack of special duty.   It found that the municipality “neither voluntarily assumed a duty to Plaintiffs, nor did [it] take positive control of a known and dangerous safety condition.”  The Court also found that the municipality did not owe any special duty to the property owner as to the fire or the events preceding it for the same reasons. 

The Cost of Doing Business

Connecticut Dermatology Group, PC et al. v. Twin City Fire Insurance Company et al.

February 2023 • Source: Melick & Porter, LLP

The Connecticut Supreme Court recently joined many other state courts when it affirmed lower court rulings against policyholders seeking coverage for “direct physical loss” as a result of the COVID-19 pandemic. In Connecticut Dermatology Group, PC et al. v. Twin City Fire Insurance Company et al., the Plaintiffs, owners and operators of healthcare facilities in Connecticut who were insured under separate but identical all-risk commercial insurance policies issued by the Defendants, argued that they were entitled to coverage under the policies’ loss of business income and civil authority provisions because they suffered certain business-related losses during the pandemic.

The Superior Court held, inter alia, that the policies’ Virus Exclusion clearly and unambiguously precluded the Plaintiff’s claims from coverage. The Exclusion stated, in part, that “any claim in which a virus is present anywhere in the causal chain leading to the claimed loss or damage, regardless of the magnitude or geographical confines of the effects of the virus” would be precluded from coverage under the policy. The Superior Court rejected the Plaintiffs’ argument that the absence of the word “pandemic” from the Exclusion precluded its application to pandemics in general, commenting that the “presence, growth, proliferation, spread, and activity” of the COVID-19 virus led inexorably to the pandemic that caused the Plaintiffs’ losses.

On appeal to the Supreme Court, the Plaintiffs contended that the trial court incorrectly concluded that the Exclusion applied to their claims. The Defendants disagreed and argued that as an alternative ground for affirming the trial court’s ruling, coverage did not apply because there was no “direct physical loss of or physical damage to” any property insured by the policies. The Defendants made particular reference to the policy provisions stating that the carrier “will pay for direct physical loss of or physical damage to covered property at the premises” and the definition of covered property, which included permanent fixtures, machinery and equipment, and building glass.

The Court agreed with the Defendants, relying on the Second Circuit’s reasoning in Farmington Village Dental Associates, LLC v. Cincinnati Ins. Co., 21-2080-CV, 2022 WL 2062280 (2d Cir. June 8, 2022), in which the Second Circuit held that coverage was not available for losses incurred as a result of the suspension of business activities during the COVID-19 pandemic where the policy expressly provided coverage only for “accidental physical loss or accidental physical damage.” The Court rejected the Plaintiffs’ arguments that they had suffered a physical “loss” of the insured premises simply by not being able to use the premises, because there was no physical or tangible alteration to the premises, noting that “use of property” and “property” are not the same thing. The Court further rejected the Plaintiffs’ argument that the erection of physical barriers on the premises constituted “physical repairs.” The Court went on to conclude that “the plain meaning of the term ‘direct physical loss of property’ does not include the suspension of business operations on a physically unaltered property in order to prevent the transmission of the coronavirus.”

The Court’s decision serves as a reminder to insurance carriers and policyholders as to the COVID-19 pandemic’s impact on the availability of insurance coverage for business losses that are incurred.

A copy of the decision may be read here: https://www.jud.ct.gov/external/supapp/Cases/AROcr/CR346/346CR9.pdf.