Bronner, etc. v. Burks II, et al., [Ms. 1150817, Dec. 22, 2017] __ So. 3d __ (Ala. 2017). This decision by Justice Shaw (Stuart, C.J., and Parker, Wise, Bryan, and Sellers, JJ., concur; Murdock, J., concurs in the result; Bolin, J., dissents; and Main, J., recuses himself) dismisses, on the ground of permission having been improvidently granted, the defendants’ permissive appeal from the Montgomery Circuit Court’s order denying a motion for summary judgment in a class action brought by married educators/participants in the Public Education Employees’ Health Insurance Plan (“PEEHIP”). The question certified by the trial court and as to which the Supreme Court had granted permission to appeal was as follows:
“Whether given the undisputed facts the Defendants violated Plaintiffs’ constitutional rights under the Equal Protection Clause, the Due Process Clause, or the First Amendment, by requiring Plaintiffs to pay the same health insurance premiums as other PEEHIP participants and by not ‘allotting’ a specific amount of PEEHIP funds to each PEEHIP participant individually?”
It is true that, both in the trial court and on appeal, the plaintiffs at times refer to the allocations as something granting them a specific dollar amount to use to purchase insurance, which, as discussed above, the defendants have shown is not the case. However, the plaintiffs also challenge the denial or loss of the benefit provided to one of the spouses. This, we believe, is the controlling question of law in this case, and it is not addressed by either the certified question or in the defendants’ brief.
Ms. *19. The Court held that “[w]hen a trial court fails to correctly identify the controlling question of law, a Rule 5 permissive appeal is due to be dismissed.” Ibid.