*1 already having been determined judge. 2,
trial Ala.Dig., Appeal See Vol. Error,
& ^80(4). No sound has reason why advanced this court ex- should
tend scope line this of cases as so
permit piecemeal appeal such as cases
the one at bar.
Moreover, provisions of Title §
24, Code of providing Alabama
deposit payment into dam- court of the
ages assessed in condemnation cases or-
der entry pending appeal, to secure as well provisions
as provid- of Title
ing payment damages six within appeal determined, together
months after clearly
seem the legislature indicate that judgments
intended condemnation only
cases become final after assessment
damages. is, therefore,
It con- must judgment
clude that the a fi- instant is not
nal judgment, appeal and that must premature.
dismissed
Appeal dismissed.
COLEMAN, HARWOOD, McCALL FAULKNER, JJ., concur. ANTRAM,
Albert L. etc.
STUYVESANT LIFE INSURANCE COMPANY, corp.
SC 276.
Supreme Court Alabama.
Dec. 1973.
Rehearing Jan. Denied *2 Slepian, Mobile, appel- McDermott & '
lee. Vickers, Riis, Curran, Mobile, Murray & appellant.
mind,
Guardianship
and Letters of
were is-
wife, Dorothy
sued to
Louise Antram.
August
On
Probate Court
Antram, as
of Mobile authorized
An-
Mrs.
*3
guardian,
the
tram’s
to settle
Texas suit
JONES, Justice.
$100,000.
Cooley
Ms.
with
Antram,
by
This is an action
Albert L.
settlement,
to
Prior
and until said
An-
appellant, seeking declaratory judgment to
paid
per
by
tram was
month
Be-
$190.67
rights
salary contin-
determine his
under a
loit’s workmen’s
carrier who
provision in a
uation
sickness and accident
obligated
would otherwise have
to
policy
appellee,
by
Stuyvesant
issued
Life
payments
they
continue
until
said
reached
employer,
Company,
to Antram’s
$17,600.
of
total
The total amount of
Corporation,
Beloit
of Be-
for the benefit
compensation payments
received
loit’s
un-
employees. Antram was covered
prior
$2,682.68.
the
to
settlement was
policy.
der said
4,
On January
1968,
riding
Antram was
Pursuant
to Title
Code of Ala-
Texas, and,
in
Beaumont,
an
automobile
1958),
(Recomp.
bama
the workmen’s
scope
acting
while
within the
line and
compensation payments were discontinued
his employment,
an automobile driven
4, 1969,
September
on
and Antram was re-
Margaret
Cooley
R.
collided
Antram’s
quired
$2,682.68
to refund the
received
As a direct
said col-
automobile.
result of
prior
from the carrier
to the settlement.
lision,
totally
permanently
Antram was
and
settlement,
After
disabled.
the discontinuance of
Antram,
the workmen’s
to
payable
The benefits
under the
and the
$2,682.68
reimbursement of the
to
are:
carrier, appellee
the
continued to deduct
“Fifty
percent
regular earn-
(50%)
per
the
salary
month from the
con-
$190.67
ings
subject
.
.
to a maximum
.
payments
tinuation
although Antram de-
indemnity
$1,000.00,
less
monthly
appellee
manded that
the
cease making
paid
disability
amount
income benefits
such deductions.
payable
or
primary
Social Securi-
ty,
Compensation, Unemploy-
However,
1, 1970,
on January
when so-
Compensation
ment
or
security
cial
benefits were increased
law
.”
(Emphasis ours.)
.
.
.
15%,
appellee
monthly
the
the
pay-
reduced
to
appellant
ments
the
On
$80.08.
Janu-
computed as
Antram’s benefits were
fol-
ary
security
social
benefits were
lows :
appellee
increased
and the
reduced
10%
salary
payment
the
continuation
to $62.08.
Month
Salary
50%
Per
Base
$450.00
$900
The
Security Act
Social
was amended
Security
Less Monthly Social
155.85
Benefits
again
September
increasing
the
Less
Workmen's
Monthly
Comp.
by 20%,
appellee
and the
accord-
Payments
346.52
190.67
ingly
appellant
payments
reduced its
Monthly Salary
Net
Continuation
$22.70.
Payment
$103.48
6, Appellant
Antram filed suit
requested
On November
the court to declare
appellee
in the
Eastern
that
U. District Court for the
the
S.
not entitled to deduct
Division,
Texas,
per
salary
District of
Beaumont
month
from
contin-
$190.67
against
Cooley.
payment
July
appellee
Ms.
On
uation
and to direct the
Alabama,
County,
Probate
Mobile
to reimburse to
repre-
Court of
Antram
sums
person
senting
to be a
unsound
declared Antram
said workmen’s
bene-
provision of
salary continuation
against the
salary
from the
previously deducted
fits
policy.
payments.
continuation
appellant
The
that
contends
appellant
contends
interpreting
pay-
“or
ambiguous
or
compensation benefits were
able” to
the insurer
deduct
authorize
result of
him the
paid
payable
are
payments
he,
appellant, was never
recovery which excused
third-party
receive,
to a
entitled
due
set-
liability.
carrier from
tlement,
unreasonable,
illogical,
has
that Antram’s ac-
contends
appellee
partic-
allowing
effect of
the insurer
scope
line
cident
incurred
ipate
settlement. The
and that
employment
of his
heavily
Baggett
on
appellant
relies
paid
are
were and
*4
Webb,
666,
Ala.App.
46
275
248 So.2d
meaning
the
and
to Antram within
payable
(1971),
725, 248
Cert. den. 287 Ala.
So.2d
in
they were
the
of
terms as
used
those
although
acknowledged that
(1971),
248
he
policy.
directly
point.
is
in
only
this case
not
The
directly
appellant
case cited
which bears
August
The
decree on
a
entered
the
is
v.
on
issue before us Burkett
Conti-
exclusionary
the
holding that
Company,
Cal.App.2d
nental
271
Casualty
disability policy
clause contained
360, Cal.Rptr.
76
(1969).1
476
therefore
applicable
was
to Antram and
to
Antram
not entitled
the relief
appellee argues
The
that the workmen’s
prayed
appeal.
the
for. Hence
payable
compensation
are still
sub-
pay-
The
is
the words “or
issue whether
a
the
ject
resulting
to
credit
from
third-
interpreted
authorizing
able”
as
should be
party recovery. Appellee contends that
the
deduct the
com-
insurer to
workmen’s
Casualty Company,
Land v. Continental
pensation
salary
benefits from the
contin-
is
(1969)
284 Minn.
568
170 N.W.2d
payment
the
did not
uation
where
insured
requests
directly
point
in
and
to a settlement
receive such benefits due
adopt
reasoning
of Land. The
the
third-party tort
Other-
with the
feasor.
appellee
American Cas-
also cites Wise v.
stated,
not re-
wise
when the insured does
Ga.App.
161
ualty Company,
S.E.
117
compensation
ceive
workmen’s
arguments.
support
2d
in
of its
(1968)
393
third-party
due
a
tort
to a settlement with
only
on
The
Alabama case relied
Phil-
feasor,
re-
the insurer be allowed to
should
Company
lips v. The Prudential
obligated
make
payments
duce the
it
to
America,
of
285
Ala.
salary
to the insured
a
continuation
exclusionary
the
(1970), which held
policy
insurance
the amount the insured
hospital policy stating
in
family
clause
a
would
the
have received under
Workmen’s
provide
for
policy
that the
did not
Compensation Act
if there had been no
injury
by any
an
covered
Com-
recovery merely
in-
because the
Act,
of
pensation
type
injury
to the
related
fortuitously
injury
sured’s
while
occurred
placing the
the workmen’s
claimant under
acting
the
in
the line and
insured
law,
compensation
the
rather than to
bene-
scope
employment?
of his
answer in
We
appellee
fits
flowing
such law.
from
negative
the
and hold that
the trial court
argues
should not re-
also
the Court
allowing
per
erred in
the
offset
$190.67
Beloit.
make its contract with
compen-
(the
month
amount of workmen’s
pay-
sation
are
benefits which would have been
The Alabama cases cited
neither
except
application
by analogy disposi-
able
for
third-party recovery)
the
direct
nor
relating
general
(Tenn.App.
Georgia,
1. For additional cases
Co. of
721 HEFLIN, MERRILL, HAR- J., to one ourselves C. address nowWe WOOD, BLOODWORTH, McCALL and inquiry case. aspect of the On remaining FAULKNER, argu JJ„ concur. during oral by the Court of counsel effect ment, made was disclosure himself had availed plaintiff’s counsel MADDOX, JJ., COLEMAN dissent. provision in the “attorneys fees”
of the every he This had last sentence MADDOX, (dissenting). provision This Justice duty, to do. right, indeed states: do not respectfully I must dissent. I “payable think the words sec- made under this “In settlement Compensation ... third-party by the negligent tion awith ” . are am law . . death, by his employee, or in case biguous. I follow believe we should dependents, employer shall be liable reasoning Casualty v. Continental Land attorneys fees in- part Co., 284 170 568 Minn. N.W.2d with the third- settlement curred , majority stands (1969) which the admits suit, in the without party, either with or “foursquare” appellee (insurer). for the the amount of the proportion that
same employers liability to in the reduction Grimes, Milling In Brunson Co. v. 267 re- pay bears to the total (1958), Ala. So.2d third-party.” such covery had from said: employers liability “reduction Compensation “Our Workmen’s Laws pay compensation” effected adopted were from the Minnesota Laws $17,600. recovery The in- Compensation, of Workmen’s M.S.A. § rightly charged surance carrier et seq., 176.01 and Minnesota construc- *6 plaintiff’s at- proportionate its of the share persuasive tion of that law is of value to torneys effecting recovery. such fees for this Pow Construc- court. v. Southern To the extent the workmen’s Co., tion 180 235 Ala. So. 288. fees, ap- company paid such the insurance credit, pellee to a is entitled (insurer) Phillips In Prudential of v. Ins. Co. being benefits America, 285 Ala. “paid payable”. pay- The fact that such , (1970) Court, construing a clause attorneys ment designated as of fees provide a which did not benefits since the end result inures consequence respect injury to “sickness or covered injured of this em- the direct benefit by any act” stated ployee plaintiff. Baggett “ . that . type . it is the disease or of Webb, supra. v. that injury play into the calls exclusion rather than the amount that of Therefore, inquiry proper a on remand ” may injury be received . . . any payment of this is the amount of case Antram was covered under Workmen’s made car- the workmen’s Compensation paid benefits were laws and attorney by way employee rier to the or his injury because the arose of out Antram’s attorneys of in the action. fees employment. I believe this Court’s of case against pro- An allowable credit Phillips America, of Ins. Co. Prudential salary vided the continuation under supra, gives guidance interpreting provi- ap- here sions of insurance contract I would then be here. consideration also believe we should follow the Land propriate.
case, fours since it all is on construes remanded. provision Reversed and a of Minnesota’s Workmen’s 722
Compensation Syndrome Zollinger-Ellison phy- which is similar to a (which Law Sec- plain- tion The Minnesota sician trial Title testified at was the 26. ailment) reasonably held that benefits recovered from a third tiff’s natural or a probable party employee employment. tortfeasor a covered result of the Mr. “payable” place under a Com- had were O’Connell tried to himself pensation position Law. and had of referee concluded opinion that testifying physician of the Furthermore, agree cannot I Bur- would either show Cal.App. Co., kett v. Continental Cas. 271 aggravated by caused or Burkett’s ac- Mr. Cal.Rptr. 2d (1969), 76 476 stands employee an tivities as bank. There, “foursquare” for the Bur- insured. unnecessary think it is We us kett not claim did make for Workmen’s “[la] go subject general into com Compensation Burkett’s insurer benefits. petency expert an testify put on a who witness testified Burkett likely of a proceeding results which was have such would been entitled to commenced, never Here, or into the matter of applied had he for them. the in- appellant’s assertions already of deficiencies Mr. paid sured had been or had estab- testimony. O’Connell’s The policy does not Compensa- eligibility lished to Workmen’s contain obligation statement an on tion benefits. The California court said: part apply insured for work insurance, “The contract of which is a compensation. ‘payable’ men’s The word group policy, provides pay- that the benefit does necessarily not mean that which able shall ‘LESS ANY AMOUNT might might (or have been obtained not) PAID OR PAYABLE UNDER ANY by the proceedings commencement un COMPENSATION, OC- WORKMEN’S der Compensation the Workmen’s It Act. CUPATIONAL ACT DISEASE OR is subject meaning has what LAW.’ been Compen awarded the Workmen’s mony predecessor, Mr. Burkett the amount these he that if body sion, from July He conceded that he could not men’s had been a member of amounts which witness Compensation Appeals (Trial “There “The insurance company briefs would have been can amounts, saying, compensation, was in Mr. Burkett had Mr. say an expert about the John actually awarded, that.’ Industrial Accident Commis- August good were 1963 to O’Connell, as to what result there would have been admissibility deal of discussion in which later 1967.) T don’t applied eligible Board described the Workmen’s February deducted from presented he did He testified lawyer testify think any- for work- for not above. testi- paid as a who do, its pecially by al his nothing *7 361; the company tion Appeals Board ly against plaintiff. Funding insurance collected is Rptr. 12, 366 take such action when sation announcement Cal.2d case before the Workmen’s upon Continental Appeals do which would Corp. policy are Co., we himself the burden of ‘payable.’ the insurer. made demand either by find no reason for P.2d Board v. Motors Insurance 57 Cal.2d by particular there Casualty Cal.Rptr. 455.) to be require but [2] employees its has not construed 27, [lb] Co. (Southwestern referees. Es the insured to evidence demand 161, 378 P.2d terms Compensa requiring We yet covered proving 17 Cal. Zurich gener strict Corp., upon find an might application have been been had made argument “The compa- insurance for compensation; and also ny does not take into consideration the de- about testimony particu- Mr. O’Connell’s termined resistance might which have been lar, especially because he conceded that he by made a workmen’s carrier qualified was not against answer whether the claim made Mr. Burkett. that the the fact Moreover, it overlooks caused which
very condition argu- own which, by defendant’s one in his by over exertion
ments, was caused might have and which activities
business obtain by a contest aggravated is true that compensation. It ap- many faced difficulty must compensation who
plicants
must rely on that form of relief. [3] But disability insurance purchases
one who to relieve proceedings take
policy need not remedies, un- seeking other
his insurer obliges him to do clearly
less the
so.” if the California me that
It seems to facts had been faced with suggest.
case, as I have held it would
Here, been awarded benefits. Antram had case, insured had not. the California
In contingent or doubtful nothing
There was In the California
about Antram’s award. applied
case, had not even the insured Compensation.
benefits under Workmen’s said, af- what I have would
Based on I I re- Consequently,
firm the trial court.
spectfully dissent. Virgis
In the Matter Honorable M. ASH WORTH, Judge of the Fourth Ju
dicial Circuit Alabama.
Misc. 428. No.
Supreme Alabama.
Jan.