In this week’s Alabama Law Weekly Update, we present for your consideration two opinions: a Court of Civil Appeals opinion regarding the law-of-the-case doctrine and an Eleventh Circuit opinion regarding an insurance policy exclusion applying to negligence claims that arise out of an assault and battery.
ALABAMA COURT OF CIVIL APPEALS
Jackson v. Wells Fargo Home Mortgage, N.A. et al., No. 2120513(Ala. Civ. App. March 21, 2014)(holding that the law-of-the-case doctrine did not preclude the trial court from considering additional facts on remand related to whether a notice of intent to accelerate was provided to the borrowers).
Borrowers Emmett Jackson and Debra Jackson (the “Jacksons”) appealed from a summary judgment entered by the trial court in favor of Wells Fargo Home Mortgage, N.A. (“the bank”) and U.S. Bank, National Association, as trustee. The case was first appealed to the Alabama Supreme Court, and it affirmed summary judgment in favor of the bank on the claim alleging negligent or wanton foreclosure, but it reversed the summary judgment on the claim alleging breach of contract. The Supreme Court construed the Jacksons’ mortgage agreement to require two notices before a foreclosure sale could occur – a notice that a debt acceleration could occur and a notice that a debt acceleration had occurred (i.e. a notice of intent to accelerate and a notice of acceleration). Because, at the time the case was before the Alabama Supreme Court, the only “notice” in the record was a July 21, 2008, letter from a debt-collection representative, informing the Jacksons (on behalf of the bank) that the debt had been accelerated, the Supreme Court concluded the Jacksons had provided substantial evidence that the essential notice required by the mortgage was not given, resulting in the failure of the acceleration, and consequently, failure of the foreclosure sale conducted on August 15, 2008. The Supreme Court remanded the action to the trial court for further proceedings.
On remand, the bank again moved for summary judgment on the Jacksons’ breach-of-contract claim. In support of that motion, the bank submitted a June 11, 2008, letter from its debt-collection representative, purporting to notify the Jacksons of the bank’s intent to accelerate the loan. The trial court considered the June 11, 2008 (intent to accelerate) letter, which was not in the record on appeal to the Supreme Court, in addition to the July 21, 2008 letter notifying the Jacksons of the loan acceleration. The trial court entered summary judgment in favor of the bank, finding that the Jacksons had been properly notified of the loan acceleration and that the parties did not have a binding agreement that cured the Jacksons’ default. The Jacksons appealed to the Alabama Court of Civil Appeals.
On appeal, the Jacksons argued that the holding of the previous appeal operated as the law-of-the-case, and precluded the entry of summary judgment against them on their breach of contract claim. Under the law-of-the-case, whatever is once established between the same parties in the same case continues to be the law of that case, whether or not correct on general principles, so long as the facts on which the decision was predicated continue to be the facts of the case.
The Court of Civil Appeals noted, however, that if an observation by the appellate court concerning an issue is premised on a particular set of facts and the nature of the remand is such that it is permissible and appropriate to consider additional facts relevant to the issue, the law-of-the case doctrine is inapplicable. The Court held that the law-of-the case doctrine, under these circumstances, did not preclude the trial court from considering additional facts on remand, and that the Jacksons failed to present a genuine issue of material fact regarding whether the bank complied with the notice provisions of the mortgage agreement before conducting the foreclosure sale.
Burlington Insurance Company, Inc. v. Normandy General Partners, No. 13-12527 (11th Cir. March 19, 2014) (affirming summary judgment in favor of an insurer based on no duty to indemnify where assault, battery or other physical altercation policy exclusion was found to apply to negligence-based torts because the torts arose out of an assault and battery).
Iledieu Cireus (“Mr. Cireus”), Deunithe Cireus (“Mrs. Cireus”), and Stanley Derival (“Mr. Derival”) (“Appellants”) appealed the district court’s decision granting summary judgment in favor of the insurer, The Burlington Insurance Company, Inc. (“Burlington”), in this declaratory judgment action (“DJ action”) regarding the scope of Burlington’s duties to defend and indemnify claims against Normandy General Partners as General Partner of Normandy Village Holdings, LLP (“Normandy”). The district court concluded that, based on certain policy exclusions, Burlington had no duty to defend or indemnify Normandy, and the Eleventh Circuit affirmed.
On August 9, 2009, at an apartment complex owned by Normandy, Mrs. Cireus was approached by Normandy’s security guard, Mrs. Webster. Upon hearing the commotion, Mrs. Cireus’s brother, Mr. Derival, stepped outside of the apartment and confronted Mrs. Webster. Mrs. Webster (the security guard) punched Mr. Derival in the face, grabbed him by the shirt, and stabbed him in the stomach with a knife. When Mr. Cireus (Mrs. Cireus’ husband) arrived at the scene, Mrs. Webster stabbed him in the back and punched him repeatedly. Both Mr. Derival and Mr. Cireus were treated for their wounds and survived the incident.
Mr. and Mrs. Cireus filed suit against Normandy (the owner of the apartment complex) for a number of torts, including, but not limited to, negligence and negligent training, negligent supervision, and negligent failure to provide safe premises. Mr. Derival filed similar claims. Normandy sought to have Burlington indemnify and defend it against the claims. Burlington brought a DJ action, asking the court to establish that it was not responsible for defending or indemnifying Normandy on the grounds that the coverage was barred by the assault, battery or other physical altercation exclusion in the insurance policy. The court found that, based on the policy exclusion, Burlington did not have a duty to defend or indemnify. On Appeal, the Eleventh Circuit Court affirmed the trial court’s decision. It focused its analysis on the fact that duty to defend is based solely on the allegations in the complaint. Appellants argued that the allegations in the policy triggered coverage because they were negligence-based torts. Burlington, however, argued, that all of the claims arose out of the assault and battery, and that the policy exclusions applied to all of the claims. The Eleventh Circuit Court agreed.