REL: 09/30/2014




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          SUPREME COURT OF ALABAMA
                              SPECIAL TERM, 2014
                             ____________________

                                    1100872
                             ____________________

                    Baldwin Mutual Insurance Company

                                           v.

                             Melissa Adair et al.

                    Appeal from Calhoun Circuit Court
                               (CV-11-0002)



MURDOCK, Justice.1




      1
      This case was originally assigned to another Justice on
this Court. It was reassigned to Justice Murdock on June 12,
2014.
1100872

    Baldwin Mutual Insurance Company ("BMIC") appeals from an

order of the Calhoun Circuit Court modifying a previous order

granting BMIC injunctive relief.            We reverse and remand.

                 I. Facts and Procedural History

    On December 2, 2010, BMIC filed an "Application for

Temporary     Restraining    Order,       Motion    for     a    Preliminary

Injunction    and    Complaint   for      Declaratory     Judgment"       ("the

complaint")     in   the    Baldwin       Circuit   Court       against     122

individuals who were insured under various insurance policies

issued by BMIC ("the insureds").2          According to the complaint,

the insureds, through their legal counsel, had sent a letter

dated November 12, 2010, to BMIC.             The November 2010 letter

stated:

    "On behalf of each of our clients listed on the
    attached, please know that we invoke the appraisal
    provision contained within the Baldwin Mutual
    policies issued to these insureds for each loss or
    claim suffered previously.     We hereby identify
    Samantha Ronquille-Green as our appraiser, and
    insist that you identify your appraiser within the
    time specified in the policies [i.e., 20 days].
    Obviously, we are only seeking appraisal of claims
    for which there is prior coverage."



    2
     Additional defendants were subsequently added as
insureds. In their briefs, the parties refer to there being
approximately 130 insureds.
                                      2
1100872

The letter also requested that BMIC provide the insureds'

counsel with a copy of the policy file for each of the

insureds, and the letter accused BMIC of "bad faith" as to its

treatment of the insureds.

     According to BMIC's complaint, the various insurance

policies at issue provided that BMIC or an insured could

invoke an appraisal process if BMIC and the insured could not

reach an agreement as to the amount of compensation due the

insured for a loss covered under the insured's policy.           The

appraisal process entailed BMIC and the insured each choosing

an   appraiser   to   estimate   the   insured's   loss,   and   the

appraisers in turn choosing an umpire who would resolve

differences in the loss estimates provided by the appraisers.

BMIC alleged:

          "11.  Under each of the appraisal provisions
     ..., a condition precedent to the demand of an
     appraisal is that there be a disagreement as to the
     amount of the loss.

          "12. The November 12, 2010 letter, by which the
     [insureds] demand appraisal, fails to satisfy this
     condition precedent, as the [insureds] fail to
     establish that there is a disagreement as to the
     amount of the loss.

          "13.   Specifically, the purported appraisal
     demand fails to set forth, among other things, the
     date of the loss, the cause of the loss, the

                                 3
1100872

    location of the loss, any specifics concerning the
    nature of the loss, or why the [insureds] assert
    that there is a disagreement as to the amount of the
    loss.

         "14. Upon information and belief, [BMIC] avers
    that all claims and losses have been adjusted and
    settled properly and without any disagreement or
    complaint by said ... policyholders.

         "15. Under each of the appraisal provisions at
    issue, appraisal is proper only as to the 'amount of
    loss.'

         "16. Therefore appraisal is appropriate under
    said policies only where (1) no coverage issue
    exists, and (2) the policyholder and insurer agree
    on the scope of the damage.

         "17.   To the extent the November 12, 2010
    letter, by which the [insureds] demand appraisal,
    demands an appraisal as to issues concerning
    coverage or the scope of the loss, the appraisal
    demand is improper.

         "18. [The insureds], separately and severally,
    therefore, have no right to invoke the appraisal
    process.

         "19. [BMIC] further avers that the attorneys
    that demanded appraisal by way of the November 12,
    2010 letter presently have filed nine (9) separate
    lawsuits against [BMIC], three of which set forth
    class action allegations (McCain v. Baldwin Mutual
    et al, CV-10-901266, Montgomery County ('McCain
    Class'),   Moyers   v.   Baldwin   Mutual   et   al,
    CV-10-900100, Escambia County ('Moyers Class'), and
    Smith v. Baldwin Mutual et al, CV-07-900258, Calhoun
    County ('Smith Class')).

         "20.  The Complaint as last amended in Smith
    defines the putative class as follows:

                             4
1100872


            "'The class includes all of those past and
            present ... policyholders, who, after
            suffering an insured loss, were subjected
            to Defendant [John] Bobo's[3] nefarious ways
            following his dispatch to adjust the loss
            by [BMIC].'

         "21. Upon information and belief, most, if not
    all, of the [insureds] were identified by their
    current attorneys and contacted by way of the Smith
    litigation.   Specifically, the attorneys that now
    represent the [insureds] sent over two thousand
    (2,000) letters to various policyholders of [BMIC],
    including, most, if not all, of the [insureds].

         "22. While simultaneously prosecuting the Smith
    class, the attorneys for the [insureds] are also
    seeking   individual   appraisals   for   the   same
    individuals that would fall within the Smith class.

         "23. The Complaint as last amended in Moyer[s]
    defines the putative class as follows:

            "'The class includes past and present BMIC
            policyholders that suffered losses as a
            result of the occurrence of Hurricane Ivan
            for which they have not been duly
            compensated, upon whose land Defendants
            trespassed or who have otherwise been
            aggrieved by Defendants' conduct in the
            wake of Hurricane Ivan.

            "'Members of the class or a class also
            include those BMIC policy holders who
            suffered losses as a result of Hurricane
            Ivan and who were subjected to the
            abnormally low pricing scheme perpetrated
            by Defendants, as herein described above,


    3
        "Defendant Bobo" allegedly is a claims adjustor for BMIC.
                                 5
1100872

          and   whose   claims       were   consequently
          underpaid.'

         "24. Count IX of the Second Amended Complaint
    in Moyers sets forth a demand for Appraisal.

         "25.  The Complaint as last amended filed in
    McCain defines the putative class as follows:

          "'All holders of policies, issued by
          [BMIC], insuring properties within the
          State of Alabama who have suffered a loss
          within six (6) years of the filing of this
          complaint for which [BMIC] reduced the
          actual cash value of the same by reduction
          for the loss of value of undepreciable loss
          elements.'

         "26. The same Gloria McCain that serves as the
    class representative in the McCain class is among
    the Respondents on whose behalf appraisal has been
    demanded.

         "27.   Because [the insureds] have failed to
    adequately identify the claims or losses for which
    they seek an appraisal, [BMIC] is unable to
    determine which of the [insureds] may fall within
    the   class    definitions  set   forth   in   the
    aforementioned class actions.

         "28.   [BMIC] avers that proceeding with the
    appraisal process prior to a determination whether
    there exists a real dispute or disagreement and
    whether each [of the insureds], separately and
    severally, is entitled to invoke the appraisal
    process, will result in immediate and irreparable
    injury loss damage to [BMIC]."

(Emphasis added.)




                                 6
1100872

     In its complaint, BMIC sought a temporary restraining

order, "until such time as this court has the opportunity to

rule on [BMIC's] Motion for a Preliminary Injunction."             BMIC

asked that the restraining order "enjoin[] the [insureds] from

engaging in the appraisal process and stay[] the time in which

[BMIC] has to identify an appraiser or otherwise participate

in said process." Also, BMIC asserted that "it will be caused

immediate and irreparable injury, loss or damage should it be

required to engage in the appraisal process demanded prior to

determining whether [the insureds] separately and severally

are entitled to invoke the appraisal process."

     In regard to BMIC's motion for a preliminary injunction,

the complaint requested that the court "conduct a hearing as

to   the   issues   set   forth   above   and   issue   a   preliminary

injunction enjoining the [insureds] from proceeding with the

appraisal process as requested herein during the pendency and

until the final disposition of this cause." (Emphasis added.)

     As to the declaratory relief requested, BMIC's complaint

alleged as follows:

          "40.   The insurance policies issued to the
     [insureds] by [BMIC] serve as the basis for the
     [insureds'] claims for appraisal. [BMIC] has not
     been able to determine that all [the insureds] have

                                   7
1100872

    been insured with or suffered a covered loss while
    insured with [BMIC].

         "41. Each policy issued by [BMIC] provides, as
    a condition to the appraisal process, that there be
    a failure to agree on the amount of the loss.

         "42. The appraisal demanded by the [insureds]
    does not identify the claims or losses for which
    appraisal is sought, but on information and belief,
    [BMIC] avers that all claims and losses have been
    adjusted and settled without any disagreement or
    complaint by said ... policyholders.

         "43. [The insureds] fall within [the] definition
    of one or more of the three class actions that the
    attorneys for the [insureds] have filed, and
    therefore, may not pursue individual appraisals.

         "44. [BMIC] seeks a determination from this
    Court pursuant to Alabama Code [1975,] § 6-6-220
    et seq., as to the following issues:

          "(1) Whether the [insureds] may properly
          demand an appraisal, where, as is the case
          here, the [insureds] (1) have failed to
          identify the claims or losses for which
          appraisal is sought; (2) have failed to set
          forth any reason as to why the [insureds]
          contend there is a disagreement as to the
          amount of loss; and (3) have failed to
          establish that any alleged disagreement is
          over the amount of loss, as opposed to a
          disagreement over coverage under the policy
          or the scope of loss or some other matter
          not subject to appraisal.

          "(2) Whether the [insureds] may seek an
          appraisal, given the pendency of the three
          class actions filed by their attorneys.




                              8
1100872

          "(3) Determine that those [insureds] who
          have not suffered a loss insured by [BMIC]
          are not entitled to appraisal."4

    On December 21, 2010, the Baldwin Circuit Court held a

hearing   on   BMIC's   request   for   a   preliminary   injunction.

During the hearing, the court summarized its understanding of

the matter as follows:

    "[I]f the essence of your injunction request is, we
    don't want to proceed with an appraisal until we
    know what the basis of their disagreement is, that's
    a very reasonable claim. That's a very reasonable

    4
     At the hearing on the temporary restraining order, the
Baldwin Circuit Court raised the issue of abatement as to
BMIC's action. Thereafter, BMIC filed a brief on that issue.
In the brief, BMIC stated that no class had been certified in
any of the class actions described in BMIC's complaint and
that the class representative in McCain v. Baldwin Mutual,
CV-10-901266, filed in Montgomery County, was the only one of
the insureds who was currently a party in an action in which
BMIC also was a party. It is not clear from the materials
before us whether the claims at issue in McCain or the other
two class actions referred to in BMIC's complaint are also
claims that might be at issue in the present case. Thus, it
is not clear whether BMIC's claims might be considered
compulsory counterclaims that are subject to abatement,
whether as to McCain or as to other insureds in the various
class actions. See Ex parte Breman Lake View Resort, L.P.,
729 So. 2d 849, 851 (Ala. 1999). Nor are we in a position to
consider the issue whether or how abatement might apply where
a class in a first-filed case has not been certified before a
second action is filed. See Ex parte Water Works & Sewer Bd.
of Birmingham, 738 So. 2d 783 (Ala. 1998)(discussing
compulsory counterclaims in the context of a class action);
see also Ex parte State Farm Mut. Ins. Co., 715 So. 2d 207
(Ala. 1997)(plurality opinion as to the issue of abatement in
class actions).
                                  9
1100872

    position for [BMIC] to take, and that is, I paid you
    $5,000.   You accepted $5,000.    You're now saying
    $5,000 isn't enough.    And they're simply saying,
    'Well, why is it not enough? What are you basing
    that on?'    And you give that to them and say,
    'Here's why, because I've got estimates that it's
    going to cost another $2,500 to do the work or it
    did cost me an extra $2,500 to do the work.' Well,
    they may say, 'Okay.    We agree with you.    Here's
    another check for another $2,500,' and you don't
    need the appraisal process. It's not until you say
    it's worth more -- the claim is worth more and they
    say, 'No, it's not,' then you say, 'Well, then we're
    invoking the appraisal process.'"

Counsel for the insureds responded, however, stating that

"that's not the law of the State of Alabama."        A later

colloquy is as follows:

         "THE COURT: So if the insured goes back -– each
    of these insureds goes back and files an amended
    proof of loss -–

         "[BMIC'S COUNSEL]:   We'll have -- what we're
    thinking is we should have a chance to investigate
    it. They could -- you're right. They could be a
    hundred percent right, Judge. We don't --

          "THE COURT: -- had a chance to investigate it.

         "[BMIC'S COUNSEL]: We have not. We don't even
    know -- there are people with five losses. Judge.
    That letter says every claim ever made under every
    policy for these people.

          "....

         "I mean, they've got to show us something that
    we can go back and investigate, and at that point,
    if we don't agree with what their appraiser says,

                             10
1100872

    that's the disagreement that's   triggered to invoke
    the appraisal process. ...

          "....

         "... They can't just say we disagree when they
    don't even know what our position is.

         "[INSURED'S COUNSEL]:     We know what    your
    position is because you made a payment --

         "[BMIC'S COUNSEL]: We made a payment under a
    claim that your person accepted. You've not sent us
    anything to let us know how it was deficient.

         "[INSURED'S COUNSEL]: We don't have to do that,
    Your Honor.

          "....

         "THE COURT: How do you know if you don't say,
    you know, you underpaid us a thousand dollars, that
    they're not going to say you're right?

          "....

         "I don't think the appraisal process has been
    properly initiated yet because the insureds have not
    responded to the basis of their disagreement for
    [BMIC] to make a determination of whether they
    disagree with the assessment by the insureds or not,
    that until there is -- as [counsel for BMIC]
    described it -— a mutual disagreement ... where the
    insureds say, 'Our claim is for this amount of money
    and you've only paid us this amount,' and Baldwin
    Mutual says, 'No,' there's not a mutual disagreement
    and so, therefore, the appraisal process, it's
    preliminary to invoke the appraisal process and that
    once that happens -- so, therefore, I think, the
    insureds have to invoke some type of basis for why
    they're disagreeing with whatever they have been
    paid so far and then whatever the policy says as far

                            11
1100872

    as a reasonable time ... to investigate and then
    determine whether you accept what their proof of
    loss is or whether you reject it and that if you
    reject it, then the appraisal process can be
    invoked.

         "... It is the reopening of a claim that has
    been previously agreed to and the only way to
    logically reopen it is [for the insureds to] tell
    them what you disagree with what the amount of claim
    is. I mean, there ain't no other way to do it."

    Immediately after the hearing, the Baldwin Circuit Court

issued an order ("the December 2010 order"), which states:

         "This matter is before the Court on a
    preliminary injunction filed by [BMIC] seeking a
    stay from the appraisal process attempted to be
    invoked by the [insureds], each being an insured of
    [BMIC], to re-open certain claims previously
    processed. Based on the legal and factual arguments
    presented, the Court finds that the appraisal
    process on these named [insureds] has not been
    adequately   invoked   because   there  is   not   a
    determination yet of whether there is an actual
    disagreement on the amount of loss. The [insureds]
    have notified [BMIC] that they now disagree with the
    amount of money offered to settle their claims.
    However, no insured has provided any basis for the
    current rejection of the offered amount or provided
    any amended claim of loss. [BMIC] cannot respond as
    to whether it can accept an insured's claim amount
    or not until it is presented with the new claimed
    amount. Therefore, since the appraisal process has
    not been triggered the time limit of 20 days for
    [BMIC] to disclose an appraiser is STAYED, pending
    each [insured] providing a basis for the rejection
    of [BMIC's] claim settlement offer."

(Capitalization in original; emphasis added.)


                             12
1100872

    In the December 2010 order, the Baldwin Circuit Court

also noted that the parties disagreed as to whether each of

the insureds was entitled to discovery of BMIC's claim file as

to that insured.     The court stated:         "Because there exist 3

pending class action suits in other courts within Alabama, all

awaiting class certification, this Court is not inclined to

undertake potential discovery issues that might better be

addressed   by   a   court   that      might   certify   the   class."

Thereafter, the present action was transferred to the Calhoun

Circuit Court ("the circuit court"), where Smith v. Baldwin

Mutual, CV-07-900258, the first-filed of the class actions

against BMIC, was pending.5

    On February 11, 2011, the insureds filed a motion in the

circuit court entitled "Motion to Alter, Amend, or Vacate."

The insureds alleged that "it is not clear on the face of the

[December 2010] order whether the Circuit Court of Baldwin

County    intended   to   grant     [BMIC's]     application   for   a

preliminary injunction," and they requested that the circuit

court vacate the December 2010 order "to the extent that the

    5
     Initially, the case was assigned to Calhoun Circuit Judge
John C. Thomason. It was reassigned to Calhoun Circuit Judge
Brian P. Howell, before whom Smith was pending at the time of
these proceedings.
                                  13
1100872

same purports to grant injunctive relief."               According to the

insureds,   the         December   2010   order   did    not   satisfy    the

requirements of Rule 65(d), Ala. R. Civ. P., because it

allegedly did not "describe in reasonable detail ... the act

or acts sought to be restrained."            The insureds also argued

that "the facts underlying the entry of the Court's order do

not satisfy the requirements for the issuance of a preliminary

injunction."

    BMIC filed a response to the insureds' "Motion to Alter,

Amend, or Vacate."          BMIC argued that the insureds' motion

should be denied because, BMIC argued, the insureds failed to

appeal    from    the    December    2010   order       pursuant   to    Rule

4(a)(1)(A), Ala. R. App. P. ("[T]he notice of appeal shall be

filed within 14 days (2 weeks) of the date of the entry of the

order or judgment appealed from: (A) any interlocutory order

granting, continuing, modifying, refusing, or dissolving an

injunction ....").6          BMIC also argued that, even if the

circuit court could reconsider the December 2010 order, the




    6
     BMIC also argued that the insureds' "Motion to Alter,
Amend, of Vacate" had not been timely filed pursuant to
Rule 59, Ala. R. Civ. P.
                                     14
1100872

insureds had failed to show that the Baldwin Circuit Court had

exceeded its discretion as to the entry of the order.

    On March 15, 2011, the insureds filed an answer to BMIC's

complaint and a counterclaim.        The counterclaim alleged:

         "60. Each [of the insureds] is either a present
    or former BMIC policy holder or the successor in
    interest of a BMIC policy holder.

         "61.   BMIC issued policies of property and
    casualty insurance to [the insureds] or their
    successors covering losses to property.

         "62. [The insureds] or their successors each
    made claims on the corresponding policies issued to
    them or to their successors.

         "63. [The insureds] aver that these claims were
    not paid in full.

         "64. [The insureds] aver further that there was
    widespread fraud associated with the manner in which
    their claims were adjusted.

         "65. [The insureds] aver that they each disagree
    or have failed to agree with BMIC regarding amounts
    of loss for each claim made by them or by their
    successors."

Based on the foregoing allegations, the insureds asserted

claims of breach of contract in their counterclaim, and they

requested a judgment "declaring the various rights of the

parties under the terms of each policy issued to [an insured]




                                15
1100872

or his or her or its successor-in-interest," particularly as

to certain matters regarding the appraisal process.

    On March 18, 2011, the circuit court entered an order

denying the insureds' "Motion to Alter, Amend, or Vacate" the

December 2010 order. The March 2011 order further stated that

the insureds "must present the appropriate information to

properly trigger the appraisal process. The Stay shall remain

in effect until such information is provided to [BMIC]."

    Thereafter, BMIC's counsel sent the insureds' counsel a

letter dated April 11, 2011. The letter acknowledged that the

insureds' counsel had provided

    "some information with respect to Hugh Bryan, Dora
    Bryan, Mary Bulger, Mary Hicks, Hattie Jemison,
    Gloria McCain, Robert Tubbs and LeAnna Williams. I
    need to have them submit to an Examination Under
    Oath, as per the express terms of their policies.

         "Also, it is imperative that your clients
    provide me with all of the requested documentation
    prior to the Examination Under Oath. Again, this
    information has been requested by way of the
    consolidated discovery, and must also be provided
    per the policies at issue.

         "Many of the [insureds] are attempting to submit
    multiple claims to appraisal. Further, the claims
    span over years and years. As a practical matter,
    it is very difficult to review the dwelling years
    after the fact and make any sort of accurate
    assessment.     Having documentation, as has been
    requested, will certainly allow [BMIC] to determine

                             16
1100872

    whether, in fact, it does disagree with any
    contentions of your clients. In addition, in the
    event that there is disagreement between [BMIC] and
    your clients, having this information readily
    available should permit the appraisers to make a
    more reasoned and accurate determination as to
    whether any additional amounts are owed under the
    claims in question."

    On April 15, 2011, the circuit court held a hearing as to

various   pending   motions,   and,   at   the   conclusion   of   the

hearing, the court requested that the parties submit briefs as

to the issue of appraisal.       The parties submitted briefs.

BMIC noted in its brief:

         "To date, ... only 14 of the 130 [insureds] have
    provided any information other than the date of
    loss. Clearly, with respect to the 116 or so
    [insureds] that have provided nothing to [BMIC]
    since receiving payment from [BMIC] and thereby
    reaching an 'agreement' with [BMIC], there has been
    nothing presented that would tend to establish a
    disagreement.

         "Appraisal has been demanded again with respect
    to 7 of the [insureds] -- (1) Banks; (2) Bulger;
    (3) Hicks; (4) Key; (5) Kynard; (6) McNeal;
    (7) Williams. With respect to each and every one of
    the seven [insureds], the only thing that has been
    provided to [BMIC] following the 'agreement' wherein
    the [insureds] were initially paid is the report of
    Samantha Green, who has been retained by the
    [insureds] as their expert."

    On April 22, 2011, the circuit court entered an order

giving BMIC "ten (10) calendar days to name an appraiser in


                                17
1100872

this case as required by the provisions of the policy" ("the

April 2011 order").     Thereafter, BMIC sought clarification as

to whether the April 2011 order

     "applies with respect to all of the approximately
     130 [insureds], or just the [insureds] that have
     made the most recent demand for Appraisal. Second,
     [BMIC] seeks clarification as to whether this Order,
     in addition to requiring that [BMIC] name its
     appraiser, also holds that appraisal has been
     properly invoked."

     On April 29, 2011, the circuit court entered an order

granting BMIC's motion for clarification.        The order states:

     "The Court clarifies its earlier Order to state that
     the   Court   finds   sufficient   evidence   of   a
     disagreement as it relates to the fourteen (14)
     [insureds] that have made the most recent demand for
     appraisal. The Court finds that they have satisfied
     the terms of the policy necessary. Other [insureds]
     may be added to this initial group of [insureds]
     once they comply with the requirements of the policy
     to invoke the appraisal provision."

     BMIC appealed to this Court pursuant to Rule 4(a)(1)(A),

Ala. R. App. P., governing appeals from "any interlocutory

order granting, continuing, modifying, refusing, or dissolving

an   injunction,   or   refusing     to   dissolve   or   modify   an

injunction."   BMIC also filed a motion in the circuit court

requesting that that court stay the April 2011 order, pending

resolution of BMIC's appeal.         The circuit court denied the


                                18
1100872

motion for a stay.         BMIC then filed a motion with this Court

asking that we stay the April 2011 order; this Court granted

BMIC's motion.

                          II. Standard of Review

       In the present case, a preliminary injunction was issued

in December 2010.           Thereafter, the April 2011 order (as

clarified) modified the injunction as to 14 of the insureds

and,       in   effect,   permanently    denied   BMIC's   claims   for

injunctive relief as those 14 insureds.7           The "facts" before

the circuit court were undisputed, and no ore tenus evidence

was presented at the proceedings. Thus, the ore tenus rule is

not applicable, and, as this Court has stated, "where the

trial court's ruling rests upon a construction of facts

indisputably established, this Court indulges no presumption

of correctness in favor of the lower court's ruling." Alabama

Farm Bureau Mut. Cas. Ins. Co. v. Dyer, 454 So. 2d 921, 923–24

       7
     As to those 14 insureds, the circuit court's order
disposes of the central dispute in this case: the timing of
the appraisal process in relation to the insureds' fulfillment
of their post-loss duties. It requires the parties to engage
in the appraisal process before the insureds meet their post-
loss duties. Once this happens pursuant to the court's order,
it cannot "unhappen." This is not an order that maintains the
status quo until relief can be entered or provides any sort of
"preliminary" relief; the relief it orders is irreversible.


                                    19
1100872

(Ala.    1984).   "[W]hen   the   facts   are   undisputed   and   the

'"ruling [is] a reconsideration of a question of law, ... the

standard of review is de novo."'"         Kappa Sigma Fraternity v.

Price-Williams, 40 So. 3d 683, 694 (Ala. 2009)(quoting Bradley

v. Town of Argo, 2 So. 3d 819, 824 (Ala. 2008), quoting, in

turn, Pioneer Natural Res. USA, Inc. v. Paper, Allied Indus.,

Chem. & Energy Workers Int'l Union Local 4–487, 328 F.3d 818,

820 (5th Cir.2003)).

    Further, as this Court noted in Twin City Fire Insurance

Co. v. Alfa Mutual Insurance Co., 817 So. 2d 687, 691-92 (Ala.

2001):

         "A contract of insurance, like other contacts,
    is governed by the general rules of contracts. ...
    'Insurance contracts, like other contracts, are
    construed so as to give effect to the intention of
    the parties, and, to determine this intent, a court
    must examine more than an isolated sentence or term;
    it must read each phrase in the context of all other
    provisions.'"

(Quoting Attorneys Ins. Mut. of Alabama, Inc. v. Smith,

Blocker & Lowther, P.C., 703 So. 2d 866, 870 (Ala. 1996).)

                "'When analyzing an insurance policy,
           a court gives words used in the policy
           their    common,  everyday   meaning   and
           interprets them as a reasonable person in
           the    insured's   position   would   have
           understood them. Western World Ins. Co. v.
           City of Tuscumbia, 612 So. 2d 1159 (Ala.

                                  20
1100872

          1992); St. Paul Fire & Marine Ins. Co. v.
          Edge Mem'l Hosp., 584 So. 2d 1316 (Ala.
          1991). ...     Only in cases of genuine
          ambiguity or inconsistency is it proper to
          resort to rules of construction.     Canal
          Ins. Co. v. Old Republic Ins. Co., 718 So.
          2d 8 (Ala. 1998).    A policy is not made
          ambiguous by the fact that the parties
          interpret   the   policy  differently   or
          disagree as to the meaning of a written
          provision in a contract. Watkins v. United
          States Fid. & Guar. Co., 656 So. 2d 337
          (Ala. 1994). ...'

    "B.D.B. v. State Farm Mut. Auto. Ins. Co., 814 So.
    2d 877, 879–80 (Ala. Civ. App. 2001)."

State Farm Mut. Auto. Ins. Co. v. Brown, 26 So. 3d 1167, 1169

(Ala. 2009).    "'If there is no ambiguity, courts must enforce

insurance contracts as written and cannot defeat express

provisions in a policy ... by making a new contract for the

parties.'"     Shrader v. Employers Mut. Cas. Co., 907 So. 2d

1026, 1034 (Ala. 2005) (quoting St. Paul Mercury Ins. Co. v.

Chilton–Shelby Mental Health Ctr., 595 So. 2d 1375, 1377 (Ala.

1992)).      "'[I]nsurance contracts are subject to the same

general rules of all written contracts, that is, in case of

doubt or uncertainty of the meaning thereof, they are to be

interpreted against the party drawing them.'"          Upton v.

Mississippi Valley Title Ins. Co., 469 So. 2d 548, 555 (Ala.

1985) (quoting Aetna Life Ins. Co. v. Hare, 47 Ala. App. 478,

                               21
1100872

486, 256 So. 2d 904, 911 (1972)).        In other words, "the rule

that ambiguous insurance contracts are to be construed in

favor of insureds ... may [not] be permitted to frustrate the

parties'   expressed   intention    if   such   intention   can   be

otherwise ascertained."     43 Am. Jur. 2d Insurance § 299

(2013).    See also Tinker v. Continental Ins. Co., 410 A.2d

550, 553-54 (Me. 1980) (discussing, to like effect, the use of

the language of the contract as a whole as well as extrinsic

evidence in the construction of an insurance agreement).

                         III. Analysis

    BMIC argues that the April 2011 order requiring it to

participate at this time in the appraisal process as to some

of the insureds should be reversed:       (1) because the insureds

at issue have not complied with their post-loss obligations as

described in provisions of the insured's insurance policy and

(2) because the insureds have not established the precondition

to the appraisal process, namely BMIC's 'failure to agree' or

'disagreement' with the insureds as to the value of the loss

at issue. As discussed below, the first reason feeds into the

second.




                               22
1100872

      BMIC is correct in its position that the insureds must

comply    with    their     post-loss        obligations    as    described    in

provisions of the respective insured's insurance policy before

that insured may invoke the appraisal process.                     To conclude

otherwise    would     reflect         an    unreasonable    reading   of     the

insurance policies at issue.                That is, as to the satisfaction

of the insured's post-loss obligations being a precondition to

the insured's assertion of the right to an appraisal, the

policy is not ambiguous.           See Slagle v. Ross, 125 So. 3d 117,

136 (Ala. 2012) (Shaw, J., concurring in the result in part

and   dissenting       in      part)    (recognizing       that   language     is

ambiguous where it "is susceptible to at least two reasonable

interpretations"); Inter-Ocean Cas. Co. v. Scruggs, 24 Ala.

App. 130, 132, 131 So. 549, 551 (1930) ("[W]hile it is

practically everywhere the accepted rule that contracts of

insurance must be most strongly construed against the insurer,

this rule cannot be pressed to the extent of adopting a

construction that is unreasonable.                   Its applicability is

limited to those cases where the language of the policy is

ambiguous        and      is     susceptible         of     two     reasonable

constructions.").


                                            23
1100872

    Under the express terms of the insurance policies at

issue, an appraisal is a step that may be demanded only after

an insurance company and an insured come to a state of

disagreement over the amount the insurer is to pay.         Yet, the

insurer has no obligation to pay any amount -- a condition

necessary to put the parties in a state of disagreement over

that amount -- until the insured meets his or her post-loss

obligations.   For example, the loss-payment clause in policy

CP-00-99, one of the policies at issue here, states:

    "f. We will pay for covered loss or damages within
    30 days after we receive the sworn statement of
    loss, if:

          "1.   You have complied with all of the
          terms of this policy; and

          "2. a. We have reached an agreement with
              you on the amount of loss; or

               "b.    An   appraisal   award   has   been
               made."

Policy CP-00-99 further provides:

    "3. DUTIES IN THE EVENT OF LOSS OR DAMAGE.

          "You must see that the following are done
          in the event of loss or damage to Covered
          Property:

          "a. Notify the police if a law may have
              been broken.


                               24
1100872

          "b. Give us prompt notice of the loss or
              damage. Include a description of the
              property involved.

          "c. As soon as possible, give us a
              description of how, when and where the
              loss or damage occurred.

          "d. Take all reasonable steps to protect
              the Covered Property from further
              damage by a Covered Cause of Loss. If
              feasible, set the damaged property
              aside and in the best possible order
              for examination. Also keep a record
              of your expenses for emergency and
              temporary repairs, for consideration
              in the settlement of the claim. This
              will not increase the Limit of
              Insurance.

          "e. At our request, give us complete
              inventories   of   the  damaged   and
              undamaged    property.        Include
              quantities, costs, values and amount
              of loss claimed.

          "f. Permit us to inspect the property and
              records proving the loss or damage.
              Also permit us to take samples of
              damaged   property  for   inspection,
              testing and analysis.

          "g. If requested, permit us to question
              you under oath at such times as may be
              reasonably required about any matter
              relating to this insurance or your
              claim,   including your books and
              records. In such event, your answers
              must be signed.

          "h. Send us a signed, sworn statement of
              loss containing the information we

                             25
1100872

                request to investigate the claim. You
                must do this within 60 days after our
                request. We will supply you with the
                necessary forms.

            "i. Cooperate with us in the investigation
                or settlement of the claim."

(Emphasis    added.)     The    other    policies   contain     similar

provisions requiring an insured to submit proof of loss and

imposing    other   post-loss   obligations,     such   as    providing

notice, protecting the property from additional damages, etc.,

before payment of loss must be made.            In other words, the

insurance policies clearly condition BMIC's obligation to "pay

for covered loss" upon its receipt (1) of a proper statement

of loss from the insured, and (2) the insured's compliance

with the insured's post-loss obligations described in the

specific policy.

    The     foregoing   conclusion      is   corroborated    when   one

considers the nature of the "duties after loss" at issue.

Each of those is a duty that amounts to a precursor to the

establishment of a fair and final loss amount.           Yet, of the

approximately 130 insureds, only 14 have provided even some of

the documentation BMIC has requested in its investigation of

the claimed losses.


                                  26
1100872

      Even       the    14    insureds          who     have         provided        some

documentation,         however,       have      failed        to     submit     to    an

examination under oath as BMIC has requested.                          In addition,

the most that any of them has submitted is a report prepared

by an appraiser chosen by the insured, or some confirmation of

expenses allegedly incurred, as to a loss that is several

years     old.         Although       perhaps      helpful,          the    submitted

information does not provide BMIC with all the information to

which    it    is    entitled      under     the      terms    of     the   insureds'

policies,      and     the   insureds      responses          fall    far    short     of

completion of the duties required to trigger BMIC's duty to

make an offer to settle the insured's claim for a particular

amount    in     addition     to     the   amount      to     which    the    insured

apparently had previously agreed.                      We do not see how the

parties can engage one another in a dispute over the amount of

loss involved, and go even further to invoke an administrative

process for resolving that dispute, unless and until (1) the

insureds have provided the required notice of loss, including

the basis for each insured's claimed loss and its value, and

(2) the insureds have permitted BMIC to investigate and verify

the   claimed       losses,     as    allowed      under      the     terms   of     the


                                           27
1100872

respective policies.          See, e.g., Nationwide Ins. Co. v.

Nilsen, 745 So. 2d 264, 267 (Ala. 1998)("An insurance company

is entitled to require an insured to submit to an examination

under oath as part of its claims investigation process. ...

[A]n insurer's obligation to pay or to evaluate the validity

of an insured's claim does not arise until the insured has

complied with the terms of the contract with respect to

submitting claims.").        Moreover, the failure of the insureds

to   have     complied     with   their    post-loss       duties   may   be

particularly problematic in this case.               It appears that a

significant amount of time passed (two years or more) between

all, or most of, the claimed losses and the November 2010

letter from the insureds' counsel, by which BMIC was informed

that the insureds "disagreed" with the payments they had

received in settlement of the claims the insureds initially

had made -- in some cases, years earlier -- and that each of

the insureds now was demanding an appraisal.

     As BMIC correctly notes in its brief, an insured must

comply with his or her post-loss obligations when the insured

is   making    a   claim   upon   the     insurer,   and    meeting   those

obligations is a precondition to any duty on the part of the


                                    28
1100872

insurer to make a loss payment.          See Nilsen, supra; Akpan v.

Farmers Ins. Exch., Inc., 961 So. 2d 865, 872 (Ala. Civ. App.

2007).     "[T]he obligation to pay or to evaluate the validity

of the claim does not arise until the insured has complied

with the terms of the contract with respect to submitting

claims."    United Ins. Co. of America v. Cope, 630 So. 2d 407,

411 (Ala. 1993).      "[N]o case from this Court places on an

insurance company an obligation to either investigate or pay

a claim until the insured has complied with all of the terms

of   the   contract   with   respect      to   submitting   claims   for

payment."     630 So. 2d at 412; see also Reeves v. State Farm

Fire & Cas. Co., 539 So. 2d 252, 254 (Ala. 1989)("Our cases

have consistently held ... that the failure of an insured to

comply within a reasonable time with such conditions precedent

in an insurance policy requiring the insured to give notice of

an   accident    or   occurrence        releases   the   insurer     from

obligations imposed by the insurance contract.").

     We also agree with BMIC that, absent the establishment of

a duty to pay, there cannot be a genuine "disagreement"

between the parties as to the issue of the proper amount of a

payment.     We find helpful in this regard the decision in


                                   29
1100872

United States Fidelity & Guaranty Co. v. Romay, 744 So. 2d

467, 471 (Fla. Dist. Ct. App. 1999), in which the court held

that the insured must comply with the policy's post-loss

obligations before the appraisal clause is triggered.               As the

Romay court explained, "the disagreement necessary to trigger

appraisal cannot be unilateral. ...              In other words, by the

terms of the contract, it was contemplated that the parties

would    engage   in    some    meaningful    exchange    of   information

sufficient for each party to arrive at a conclusion before a

disagreement could exist." Romay, 744 So. 2d at 469-70; see

also    Hailey v. Auto-Owners Ins. Co., 181 N.C. App. 677, 687,

640 S.E.2d 849, 855 (2007) ("[T]he unsupported opinion of the

insured that the insurer's payment was insufficient does not

rise to the level of a disagreement necessary to invoke

appraisal.    ...      [T]o    the   extent   Defendant   requested   that

Plaintiff comply with Plaintiff's post-loss duties prior to

invoking appraisal, such compliance was a necessary condition

precedent to the invocation of appraisal.").

       The Romay court also stated:

       "[P]ermitting the insured to compel appraisal
       without first complying with the policy's post-loss
       obligations   would   place   the  insurer   at   a
       considerable disadvantage entering the appraisal

                                       30
1100872

      process. The nature of the post-loss obligations is
      merely to provide the insurer with an independent
      means by which to determine the amount of loss, as
      opposed to relying solely on the representations of
      the insured."

744 So. 2d at 471 n.4; see also Galindo v. ARI Mut. Ins. Co.,

203   F.3d    771,    777    (11th   Cir.    2000)   (applying      Romay   and

concluding     that    an    "insurance      company   must   be    given   an

opportunity to investigate a supplemental claim before there

can be a disagreement between the parties regarding the amount

of property loss or damage to effectuate appraisal"); Hailey,

supra.    In other words, the insured must satisfy his or her

post-loss obligations so that the insurer can know whether it

does or does not agree with the insured's claim as to the

amount of the loss at issue.

                               IV. Conclusion

      Based    on the       foregoing,      the   circuit   court   erred   by

ordering BMIC to engage in the appraisal process before the

insureds satisfied their respective post-loss obligations and

before BMIC had sufficient information on which it could

decide whether it disagreed with the respective claims of the

insureds. Accordingly, we reverse the April 2011 order of the




                                      31
1100872

circuit court and remand this matter for further proceedings

consistent with this opinion.

    REVERSED AND REMANDED.

    Stuart,   Bolin,   Parker,   Shaw,   Wise,   and   Bryan,   JJ.,

concur.

    Moore, C.J., dissents.




                                 32
1100872

MOORE, Chief Justice (dissenting).

      I   respectfully     dissent.   As     the   main    opinion   notes,

Baldwin Mutual Insurance Company ("BMIC") raises two issues on

appeal: (1) Whether the insureds may demand and invoke an

appraisal in light of the fact that "the insureds ... have not

complied with their post-loss obligations as described in

provisions of the insured's insurance policy"; and (2) whether

the   insureds   have      "established    the     precondition      to   the

appraisal    process,      namely   BMIC's    'failure      to   agree'    or

'disagreement' with the insureds as to the value of the loss

at issue."    ___ So. 3d at ___.

      As to the first issue, BMIC argues that the insureds may

not demand or invoke an appraisal because, BMIC says, they

have failed to comply with the post-loss obligations in their

insurance policies. BMIC argues that, to properly invoke an

appraisal    under   the    various   policies,      the    insureds      were

required to fulfill certain post-loss obligations. BMIC notes

that no Alabama appellate court has addressed the effect of an

insured's noncompliance with post-loss obligations on the

insured's ability to invoke an appraisal. BMIC relies on cases

from other jurisdictions for the proposition that an insured


                                    33
1100872

may not demand an appraisal without first complying with the

post-loss obligations in the underlying policies. See, e.g.,

United States Fid. & Gaur. Co. v. Romay, 744 So. 2d 467, 471

(Fla. Dist. Ct. App. 1999)("No reasonable and thoughtful

interpretation    of   the   policy       could      support   compelling

appraisal    without   first   complying          with   the    post-loss

obligations."); Galindo v. ARI Mut. Ins. Co., 203 F.3d 771,

777 (11th Cir. 2000)("[W]e hold that these insureds must

comply    with   the   post-loss        terms   of    their    respective

homeowner's policies, which enables the insurance companies to

investigate the insureds' claims and to disagree with the loss

amount before the appraisal term becomes effective."); Hailey

v. Auto-Owners Ins. Co., 181 N.C. App. 677, 687, 640 S.E.2d

849, 855 (2007)("[T]o the extent Defendant requested that

Plaintiff comply with Plaintiff's post-loss duties prior to

invoking appraisal, such compliance was a necessary condition

precedent to the invocation of appraisal."). According to

BMIC, these foreign cases align with Alabama cases holding

that an insurer is not obligated to pay an insured until the

insured has submitted claims to the insurer pursuant to the

terms of the policies. Nationwide Ins. Co. v. Nilsen, 745 So.


                                   34
1100872

2d 264, 267 (Ala. 1998)("[A]n insurer's obligation to pay or

to evaluate the validity of an insured's claim does not arise

until the insured has complied with the terms of the contract

with respect to submitting claims."). Therefore, BMIC asks

this Court to hold that the insureds must satisfy certain

post-loss obligations before demanding an appraisal according

to their policies.

    By their terms, however, the policies do not require the

insureds to first satisfy the post-loss obligations before

demanding   an   appraisal.   The    parties   stipulate   that   the

appraisal provisions are roughly the same in each policy:

    "Appraisal. If you and we fail to agree on the
    values of the property or the amount of loss, either
    may make written demand for an appraisal of the
    loss. In this event, each party will select a
    competent   and   impartial   appraiser.   The   two
    appraisers will select an umpire. If they cannot
    agree, either may request that selection be made by
    a judge of a court having jurisdiction. The
    appraisers will state separately the value of the
    property and amount of loss. If they fail to agree,
    they will submit their differences to an umpire. A
    decision agreed to by any two will be binding. Each
    party will: Pay its chosen appraiser and bear the
    other expenses of the appraisal and umpire equally."

The section of the policies regarding post-loss obligations is

entirely separate from the section of the policies regarding

an appraisal. Neither section makes reference to the other.

                                35
1100872

Nothing in the policies states that post-loss provisions must

be satisfied before the insureds may invoke the appraisal

provisions. Instead, the policies maintain that either BMIC or

the insureds may demand an appraisal if BMIC and the insureds

disagree on the value of the property or the amount of loss.

Such disagreement could arise at any time. The policies do not

specify that the insureds must bring their disagreement to the

attention of BMIC only after they have satisfied their post-

loss obligations. The plain and unambiguous terms of the

policies suggest that the insureds may demand an appraisal

whenever they disagree with BMIC regarding the value of the

property or the amount of loss. Although BMIC attempts to

portray    the   performance    of        post-loss   obligations   as   a

condition precedent to appraisal, no language in the policies

supports that interpretation. Public Bldg. Auth. of Huntsville

v. St. Paul Fire & Marine Ins. Co., 80 So. 3d 171, 180 (Ala.

2010)("A court may not make a new contract for the parties or

rewrite their contract under the guise of construing it.").

    BMIC     would   have      us     adopt     holdings    from    other

jurisdictions to establish a bright-line rule for all Alabama

insurance cases, namely, that an insured must always satisfy


                                     36
1100872

post-loss obligations before invoking appraisal provisions in

an insurance policy. Such a rule impairs the obligation of

existing contracts between insureds and insurers. "General

rules of contract law govern an insurance contract." Safeway

Ins. Co. of Alabama, Inc. v. Herrera, 912 So. 2d 1140, 1143

(Ala. 2005). "The Court must enforce the insurance policy as

written if the terms are unambiguous." Id.

       Here, the policies are not ambiguous: They allow both

BMIC and the insureds to demand an appraisal if the parties

disagree about the value of the property or the amount of

loss. Although to compel an appraisal in Florida requires a

party first to comply with the post-loss provisions in an

insurance policy,8 no such law exists in Alabama. Had the

parties wished to be bound by such a rule, they could have

included it in their policies. It is unreasonable to hold

that, when the insureds purchased their policies from BMIC,

they       should   have   expected    Florida   law   to   govern   their

policies.      This   Court   should    not   read   into   a   contract   a

provision that is not there. Harbison v. Strickland, 900 So.


       8
     See, e.g., Citizens Prop. Ins. Corp. v. Mango Hill Condo.
Ass'n 12 Inc., 54 So. 3d 578, 581-82 (Fla. Dist. Ct. App.
2011).
                                       37
1100872

2d 385, 391 (Ala. 2004)("'"[A] court should ... presume that

the parties intended what the terms of the agreement clearly

state."'" (quoting other cases)). Nor should this Court add

provisions   to    an   insurance       policy       according       to    what     it

perceives    to    be    industry-wide          insurance         standards        and

practices    as   to    which     the       policy    is     silent.      Poole     v.

Henderson, Black & Green, Inc., 584 So. 2d 485, 487 (Ala.

1991)("'"The general rule of contract law is that, if a

written   contract      exists,    the       rights     of    the    parties       are

controlled   by    that   contract,          and     parol    evidence       is    not

admissible to contradict, vary, add to, or subtract from its

terms."'"(quoting Rime-Shatten Dev. Co. v. Birmingham Cable

Commc'ns, Inc., 569 So. 2d 332, 334 (Ala. 1990), quoting in

turn Clark v. Albertville Nursing Home, Inc., 545 So. 2d 9, 11

(Ala. 1989))). Therefore, I would affirm the circuit court's

April 2011 order as to the first issue.

       As to the second issue, BMIC argues that the insureds

have    failed    to    establish       a     "failure       to     agree"    or     a

"disagreement" regarding the amount of loss and, therefore,

may not demand an appraisal. In particular, BMIC contends that

the insureds failed to provide sufficient evidence (e.g.,


                                        38
1100872

estimates from contractors) that the parties disagreed about

the amount of loss either before or after BMIC compensated the

insureds for the loss. In response, the insureds allege that

they established a "disagreement" regarding the amount of loss

when, after receiving a check from BMIC to cover their loss,

they notified BMIC that the amount of the check was inadequate

and that their demand for an appraisal is in accordance with

their policies. The point of the appraisal, they contend, is

to determine not whether a disagreement between the parties

existed, but the amount on which the parties disagree.

    BMIC quotes from cases holding that there must be an

actual disagreement between the parties regarding the value of

the property or the amount of loss in order to effectuate an

appraisal.9 These holdings are in keeping with the policies in

this case. BMIC does not argue that it disagrees with the

insureds' allegation that BMIC inadequately compensated them

for their loss. Rather, BMIC alleges that it does not have

enough information to determine whether it disagrees with the

insureds regarding the amount of the loss because the insureds

have not identified, with sufficient evidence, what they

    9
     E.g., Jersey Ins. Co. v. Roddam, 256 Ala. 634, 637-38,
56 So. 2d 631, 633-35 (1952); Romay, 744 So. 2d at 469-70.
                             39
1100872

consider the amount of loss to be. If the insureds had

complied with the post-loss obligations in the policies, BMIC

adds, there might have been sufficient evidence to allow BMIC

to determine whether its assessment of the amount of loss

differs from the insureds' assessment of the amount of loss.

    Accordingly,     this    Court    must   determine   whether    the

circuit court erred by denying BMIC's motion for injunctive

relief based on the circuit court's finding that 14 of the 130

insureds had proffered enough evidence of the amount of loss

to effectuate an appraisal under the policy. BMIC declares

that no such evidence exists or that the existing evidence

does not support the circuit court's finding that these

insureds    presented   sufficient      evidence    to   invoke     the

appraisal. However, BMIC does not describe the evidence in the

record    and   before the   circuit   court   or   explain   how   the

specific contents of such evidence were inadequate to support

the circuit court's order granting the appraisal. This Court

has stated that the appellant "has a heavy burden when it

seeks a reversal of an order on the ground that the decision

is not supported by the evidence." Curtis White Constr. Co. v.




                                 40
1100872

Butts & Billingsley Constr. Co., 473 So. 2d 1040, 1041 (Ala.

1985).

    "It is the function of a trial judge sitting as
    factfinder to decide facts where conflicts in the
    evidence exist. Such was the case here. The
    appellate courts do not sit in judgment of the
    facts, and review the factfinder's determination of
    facts only to the extent of determining whether it
    is sufficiently supported by the evidence, that
    question being one of law. No error of law exists in
    this case, and where there is evidence to support
    the decision reached by the factfinder, we must
    affirm its judgment."

473 So. 2d at 1041. Because there is ample evidence in the

record to support the decision reached by the circuit court,

including detailed estimates, drawings, and photographs of the

damage at issue, and because BMIC makes no attempt to explain

in detail how this evidence does not support the circuit

court's findings that the 14 insureds had properly invoked the

appraisal provisions in the policies, I would affirm the

circuit court's order.

    Finally,   BMIC   claims   that,   "if   an   insured   has   not

retained a contractor or repairman, or obtained an estimate of

the amount of loss from some other source, it is difficult to

understand how an insured could, in fact, disagree with the

insurer's determination of the amount of loss." Nevertheless,


                                41
1100872

the policies by their terms did not require the insured to

retain a contractor or a repairperson or to obtain an estimate

of the amount of loss from some other source as a condition

precedent   to   invoking    the   appraisal   provisions.   "'Courts

cannot    make   contracts   for   parties,    but   must   give   such

contracts as are made a reasonable construction and enforce

them accordingly.'" Charles H. McCauley Assocs., Inc. v.

Snook, 339 So. 2d 1011, 1015 (Ala. 1976)(quoting R.P. Harris,

& Co. v. Thomas, 17 Ala. App. 634, 635, 88 So. 51, 52

(1921)). "[W]e know of no canon of construction that warrants

an interpretation the only effect of which is to relieve a

party to the contract from consequences deemed by him hard or

unfair." Lilley v. Gonzales, 417 So. 2d 161, 163 (Ala. 1982).

"[I]t is the duty of the [C]ourt to enforce [the contract] as

written." Kinnon v. Universal Underwriters Ins. Co., 418 So.

2d 887, 888 (Ala. 1982). To hold otherwise is to require

consumers purchasing insurance policies to know not only what

provisions appear in such policies, but also what judicially

created provisions exist for such policies outside the four

corners of the policies. Ordinary consumers of insurance

policies are not lawyers and should not be expected to search


                                   42
1100872

"caselaw" for provisions applicable to their policies that do

not appear in such policies.

    For these reasons, I respectfully dissent.




                               43
