Attorney’s Authority to Settle Wrongful Death Claim – Summary Judgment Procedure

Robert Bowers, Jr., v. BBH SBMC, LLC, [Ms. SC-2023-0216, Dec. 1, 2023] __ So. 3d __(Ala. 2023). The Court (Cook, J.; Shaw, Mendheim, Stewart, and Mitchell, JJ., concur; Sellers, J., concurs in part and concurs in the result, which Wise, J., joins; Bryan, J., concurs in the result; Parker, C.J., concurs in part and dissents in part) reverses the Shelby Circuit Court’s summary judgment dismissing claims for the wrongful death of Charles Evans against Terry Short (“Short”) and various medical providers who treated Evans following an automobile accident.

As a result of an automobile accident caused by Short, Charles was treated and released at Shelby Baptist Medical Center (“Baptist East”) on January 12, 2016. Charles collapsed the following day and was admitted to Baptist East where he died on the evening of January 13, 2016. Earlier that day, attorney Nicholas Vocino of the Slocumb law firm filed a medical malpractice claim in the Chilton Circuit Court against Baptist East on behalf of Charles naming his brother John as his next friend. Short was not named in that initial complaint but was subsequently named in an amended complaint.

On March 15, 2016, County Administrator, Robert Bowers, was appointed personal representative of Charles’s estate, and on May 11, 2016, attorney James Moncus appeared in the action and Bowers was substituted as the plaintiff on the claim for Charles’s wrongful death. Ms. **5-7. The action was then transferred to the Shelby Circuit Court where the alleged malpractice occurred.

Short filed a motion to dismiss arguing that the wrongful death claim should be dismissed under the terms of a previously executed general release, and Vocino’s apparent authority to settle the claim for Charles’s wrongful death. Ms. *15. In response, Bowers argued that he was solely authorized to settle the wrongful-death claim under §6-5-410, Ala. Code 1975, and that Vocino did not have authority to accept the offer under §34-3-21. Ms. *17. The circuit court entered summary judgment in favor of Short as well as Baptist East and other entities and individuals who had been added as defendants on the medical malpractice wrongful death claim.

The Court first reverses the summary judgment dismissing the malpractice defendants, none of whom had moved for summary judgment. The Court reiterates that “‘Rule 56(c)(2), Ala. R. Civ. P., gives the nonmoving party certain rights to notice and a hearing after a summary-judgment motion has been filed.’ Moore v. Prudential Residential Servs. Ltd., 849 So. 2d 914, 926 (Ala. 2002). The purpose of this rule is to give the nonmoving party an opportunity to respond to the motion and present evidence in its favor. Id. at 927 (citing Van Knight v. Smoker, 778 So. 2d 801, 805-06 (Ala. 2000)). Thus, ‘the trial court violates the rights of the nonmoving party if it enters a summary judgment on its own, without any motion having been filed by a party.’ Id.” Ms. *21.

Bowers argues that the trial court erred in entering a summary judgment in favor of Short without first holding an evidentiary hearing on whether Vocino was authorized to settle the claim for Charles’s wrongful death. Ms. *22. The Court reiterates that when there is a factual dispute regarding an attorney’s authority to settle a claim, a court should hold an evidentiary hearing on that question. Ms. *22, citing Lem Harris Rainwater Family Trust v. Rainwater, 373 So. 3d 1089, 1094 (Ala. 2022). The Court also notes that “a settlement agreement negotiated by an attorney binds the client only when the attorney acts with ‘express, special authority from the client or with apparent authority.’” Ms. **23-24, quoting Mitchum v. Hudgens, 533 So. 2d 194, 199 (Ala. 1988) (plurality opinion) (some internal quotation marks omitted). Accordingly, “because there was a substantial factual dispute concerning whether Vocino had express or apparent authority to enter into a settlement of the wrongful death claim against Short, the trial court was required to conduct an evidentiary hearing to resolve that dispute.” Ms. *24.

Justice Sellers concurs in part, stating that on remand he would instruct “the trial court to apply the presumption that Vocino had the authority to settle on Bowers’s behalf. Therefore, only if Bowers can affirmatively disprove Vocino’s settlement authority should the trial court deny Short’s motion for a summary judgment.” Ms. *35. Justice Sellers reasons that “the presumption of authority, combined with a shift in the burden of proof, not only ensures that third parties may rely on attorneys’ representations of their settlement authority but also protects clients from being bound to any settlement agreements should they affirmatively disprove having bestowed settlement authority upon their attorneys.” Ms. *35.

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