REL: 09/30/2014

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter . Readers are requested to notify the Reporter of Decisions , Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter
. 

# SUPREME COURT O F ALA BAMA

SPECIAL TE RM, 2 014

_____ _____ _____ _____ 11008 72

_____ _____ _____ _____ Baldw in Mu tual Insur ance Company

v. Melis sa Adair e t al. Appea l from Cal houn Circu it Court

(CV-1 1-000 2)

MURDO CK, J ustic e. 1

This case was origi nally assig ned to anoth er Justi ce on 1 this Court . It was reass igned to Justi ce Murdo ck on June 12, 2014.11008 72

Baldw in Mutua l Insur ance Compa ny ("BMI C") appea ls from an order of the Calho un Circu it Court modif ying a previ ous order grant ing B MIC i njunc tive relie f. W e rev erse and r emand .

I. Fa cts a nd Pr ocedu ral H istor y On December 2, 2010, BMIC filed an " Ap plica tion for Tempo rary Res t r a i ning Order , Motio n for a Preli minar y Injun ction and Compl aint for Decla rator y Judgm ent" ("the compl ai n t") in the Baldw in Circu it Court again st 122 indiv idual s who were insur ed under vario us insur ance polic ies issue d by BMIC ("the insur eds") . Accor ding to the compl aint, 2 the i nsure ds, t hroug h the ir le gal c ounse l, ha d sen t a l etter dated November 12, 2010, to BMIC. The Nove mb e r 2010 lette r state d: "On beh a lf of each of our clien ts liste d on the attac hed, pleas e know that we invok e the appra isal provi sion conta ined withi n the Baldw in Mutua l polic ies issue d t o these insur eds for each loss or claim suffe red previ ously . We hereb y i d e n tify Saman tha Ronqu ille- Green as our appra iser, and insis t that you ident ify your appra iser withi n the time speci fied in the polic ies [i.e. , 20 days] . Obvio usly, we are only seeki ng appra isal of cla ims for w hich there is p rior cover age."

Addit ional defen dants were subse quent ly added as 2 insur eds. In t heir brief s, th e par ties referto t here being appro ximat ely 1 30 in sured s. 211008 72

The lette r also reque s t ed that BMIC provi de the insur eds'

couns el w i t h a copy of the polic y file for each of the insur eds, and the lette r accus ed BMIC of "bad faith " as to its treat ment of th e ins ureds . Accor ding to BMIC' s compl aint, the vari o u s insur ance polic ies at issue provi ded that B M I C o r an insur ed could invok e an appra isal proce ss if BMIC and the insur ed could not

r e a c h an agree ment as to the amoun t of compe nsati on due the i nsure d for a loss cover ed under the insur ed's polic y. T h e appra isal proce ss entai led BMIC and the insur ed each choos ing

an appra iser to estim ate the insur ed's loss, and the appra isers in turn choos ing an umpir e wh o w o uld resol ve diffe rence s in the loss estim ates provi ded by the appra isers
. BMIC alleg ed:

"11. Under each of the appra isal provi sions

..., a condi tio n p r e ceden t to the deman d of an appra isal is that there be a disagree ment as to the amoun t of the l oss. "12. The November 12, 2010 lette r, by which the [insu reds] deman d appra isal, fails to satis fy t h is condi tion prece dent, a s the [insu reds] fail to estab lish that there is a d i s a greem ent as to the amoun t of the l oss. "13. Speci fical ly, the purpo rted appra isal deman d fails to set forth , among other thin g s, the dat e o f t h e loss, the cause of the loss, the

311008 72

loc ation of the loss, any speci fics conce rning the n a t ure of the loss, or why the [insu reds] asser t that there is a disag reeme nt as to the amoun t of the loss. "14. Upon infor matio n and belie f, [BMIC ] avers t h at all claim s and losse s have been adjus ted and settl ed prope rly and witho ut any disag reeme nt or compl aint by sa id .. . pol icyho lders . "15. Under each of the appra isal provi sions at issue , appra isal is prope r only as to the 'amou nt of loss. '

" 1 6
. There fore appra isal is appro priat e unde r s a id polic ies only where (1) no cover age issue exist s, a nd (2) the polic yhold er and insur er agree on th e sco pe ofthe damag e. "17. To the exte n t t h e November 12, 2010 lette r, by which the [insu reds] deman d appra isal, deman ds an appr a isal as to issue s conce rning cover age or the scope of the loss, t h e appra isal deman d is impro per. "18. [The insur eds], separ ately and sever ally, there fore, have no r i g h t to invok e the appra isal proce ss. "19. [ B M I C ] furth er avers that the attor neys that deman ded appra isal by way of the November 12, 2010 lette r prese ntly have filed nine (9) separ at e lawsu its again st [BMIC ], th r e e of which set forth class actio n alleg ation s (McCa i n v. Baldw in Mutua l et al, CV-10 -9012 66, Montg omery Count y ('McC ain Class '), Moyer s v. Baldw i n Mutua l et al, CV-10 -9001 00, Escambia Count y ('Moy ers Class '), and Smith v. Baldw in Mutua l et al, CV-07 -9002 58, Calho un Count y ('S mith Class ')). "20. The Compl aint as last a m ended in Smith defin es th e put ative clas s as follo ws:

411008 72

"'The class inclu des all of those past and pres e n t ... polic yhold ers, who, after suffe ring an insur ed loss, were subje cted to Defen dant [John ] Bobo' s nefar ious ways [ 3 ] follo wing his disp a t c h to adjus t the loss by [B MIC]. ' "21. Upon infor matio n and belie f, most, if not all, of the [insu reds] were ident ified by their curre nt attor neys and conta cted by way of the Smith litig ation
. Speci fical ly, the attor neys that now r e p r esent the [insu reds] sent over two thous an d (2,00 0) lette rs to vario us polic yhold ers of [BMIC ], inclu ding, most , if not a ll, o f the [ins ureds ]. "22. While simul taneo usly prose cutin g the Smith class , the attor neys for the [i n s u r eds] are also seeki ng indiv idual appra isals for the same indiv idual s that would fall withi n the Smith class . "23. The Compl aint as last amend ed in Moyer [s] defin es th e put ative clas s as follo ws: "'The class inclu des past and prese nt BMIC polic yhold ers that suffe red losse s as a resul t of the occur rence of Hurri cane Ivan for which they have n o t been duly compe nsa ted, upon whose land Defen dants tresp assed or who have other wise been aggri eved by Defen dants ' condu ct in the wake of Hu rrica ne Iv an. "'Members o f t h e class or a class also inclu de those BMIC polic y holde rs who suf f e r ed losse s as a resul t of Hurri cane Ivan and who were subje c t e d to the a b norma lly low prici ng schem e perpe trate d by Defen dants , as herei n descr ibed above ,

"Defe ndant Bobo" alleg edly is a claim s adjus tor for BMIC. 3 511008 72 and whose claim s were conse qu e ntly under paid. ' "24. Count IX of the Secon d Amend ed Compl aint in Mo yers sets fortha de mand for Apprai sal.

" 2 5 . The Compl aint as last amend ed filed i n McCai n def ines the p utati ve cl ass a s fol lows: "'All holde rs of polic ies, issue d by [BMIC ], insur ing prope rties withi n the State of Alaba ma who have suffe red a loss withi n six (6) years of the filin g of this compl aint for which [BMIC ] reduc ed the actua l cash value of the same by reduc tion for the loss of value of undep recia ble loss eleme nts.' "26. The same Glori a McCai n that serve s as the class repre senta tive in the McCai n cla s s is among the Respo ndent s on whos e behal f appra isal has been deman ded.

" 27. Becau se [the insur eds] have faile d to adequ ately ident ify the claim s or los ses for which they seek an app raisa l, [BMIC ] is unabl e to deter mine which o f the [insu reds] may fall withi n the class defin ition s set forth i n the afore menti oned class acti ons. "28. [BMIC ] avers that proce eding wit h the a pprai sal proce ss prior to a deter minat ion wheth e r there exist s a real dispu te or disag reeme nt and wheth er each [of th e i nsure ds], separ ately and s evera lly, is entit led to invok e the appra i s a l proce ss, will resul t in immed iat e and irrep arabl e injur y los s dam age t o [BM IC]." (Emph asis added .)

611008 72

In its compl aint, B MIC sough t a tempo rary restr ainin g order , "un til s uch t ime a s thi s cou rt ha s the oppo rtuni ty to rule on [B MIC's ] Mot ion f or a Preli minar y Inj uncti on." BMIC asked that the restr ainin g order "enjo in[] the [insu reds] from engag ing in the appra isal proce ss and stay[ ] the time in which [BMIC ] has to i denti fy an appr aiseror o therw ise p artic ipate in said proce ss." Also, BMIC asser ted that "it will be cause d immed iate and irrep arabl e injur y, loss or damag e shoul d it be requi red to engag e in the appra isal proce ss deman ded prior to deter minin g wheth er [the insur eds] separ ately and s e v e r ally

are e ntitl ed to invo ke th e app raisa l pro cess. "
In regar d to BMIC' s motio n for a preli minar y injun ction , the c ompla int r eques ted t hat t he co urt " condu ct a heari ng as to the issue s s e t forth above and issue a preli minar y injun ction enjo iningthe [insu reds] fromproc eedin g wit h the appra isal proce ss as reque sted herei n durin g the pende ncy and until the final dispo sitio n of this cause ." (Emph asis added .) As to the decla rator y relie f reque sted, BMIC' s compl aint alleg ed as foll ows:

"40. The insur ance polic ies is s u e d to the [insu reds] by [BMIC ] serve as t h e basis for the [insu reds' ] claim s for appra isal. [BMIC ] has not been able to deter mine that all [the insur eds] have

711008 72

bee n insur ed with or suffe red a cover ed loss while insur ed wi th [B MIC]. "41. Each polic y issue d by [BMIC ] provi des, as a condi tion to the appra isal proce ss, that there be a fai lure to ag ree o n the amou nt ofthe loss. "42. The appra i s al deman ded by the [insu reds] does not ident ify the claim s or losse s for w h i ch appra isal is sough t, but on infor matio n and belie f, [BMIC ] avers that all c l a ims and losse s have been adjus ted and settl ed witho ut any disag reeme nt or compl aint by sa id .. . pol icyho lders . "43. [The insur eds] fall withi n [the] defin ition of one or more of the three class actio ns that the attor ne y s for the [insu reds] have filed , and there fore, may not p ursue indi vidua l app raisa ls. "44. [BMI C] seeks a deter minat ion from this Court pursu ant to Alaba ma Code [1975 ,] § 6- 6

- 2 2 0 et se q., a s to the f ollow ing i ssues : "(1) Wheth er the [insu reds] m a y p roper ly deman d an appra isal, where , as is the case here, the [ i n sured s] (1) have faile d to ident ify t h e claim s or losse s for which appra isal is sough t; (2) have faile d to set forth any reaso n as to why the [insu reds] conte nd there is a disag reeme nt as to the a m o unt of loss; and (3) have faile d t o estab lish that any alleg ed disag reeme nt is over the amoun t o f loss, as oppos ed to a disag reeme nt over cover age under the polic y or the scope of loss o r some other matte r not s ubjec t to appra isal. "(2) Wheth er the [insu r e d s] may seek an appra isal, given the pende ncy of the three class acti ons f iled by th eir a ttorn eys.

811008 72 "(3) Deter mine that those [insu reds] who have not suffe red a loss insur ed by [BMIC ] are n ot en title d to appra isal. " 4
On December 21, 2010, the Baldw in Circu it Court held a h e aring on BMIC' s reque st for a preli minar y injun ction
. Durin g the heari ng, the court summa rized its under stand ing of the m atteras f ollow s: "[I]f the essen ce of your injun ction request is, we d o n 't want to proce ed with an appra isal until w e know what the basis of their disag reeme nt is, that' s a very reaso nable claim
. That' s a very rea s onabl e

At the heari ng on the tempo rary restr ainin g orde r , the 4 Baldw in Circu it Court raise d the issu e o f abate ment as to BMIC' s actio n. There after , BMIC filed a brief on that issue
. In the brief , BMIC state d that no class had been certi fied in any of the class actio ns descr i b e d in BMIC' s compl aint and that the class repre senta tive i n McCai n v. Baldw in Mutua l, CV-10 -9012 66, filed in Montg omery Count y, was the only one of the i nsure ds wh o was curr entlya pa rty i n an actio n in which BMIC also was a party . It is n o t c l e a r from the mater ials befor e us wheth er th e cla ims a t iss ue in McCa in orthe other two class actio ns refer red to i n B MIC's compl aint are also claim s tha t mig ht be at i ssue in th e pre sent case. Thu s, it is not clear wheth er BMIC' s claim s might be con s i d e r ed compu lsory count e rclai ms that are subje ct to abate ment, w h e t h e r a s to McCai n or as to other insur eds in the vario us c l a s s actio ns. See Ex parte Brema n Lake View Resor t, L.P., 729 So. 2d 849, 851 (Ala. 1999)
. Nor are we in a posit ion to consi der the issue wheth er or how abate ment might apply where a class in a first -file d case has not been certi fied befor e a secon d actio n is filed
. See Ex parte Water Works & Sewer Bd. of Birmi ngham , 7 38 So. 2d 783 (Ala. 1998) (disc ussin g compu lsory count ercla ims in the conte xt of a cla ss actio n); see also Ex parte State Farm Mut. I n s . C o . , 715 So. 2d 207 (Ala. 1997) (plur ality opini on as to the issue of abate ment in class acti ons). 911008 72

posit ion for [BMIC ] to take, and that is, I paid you $ 5 , 000. You accep ted $5,00 0. You'r e now sayin g $5,00 0 isn't enoug h . A nd they' re simpl y sayin g, 'Well , why is it not enoug h? What are you b a s i n g that on?' And yo u g i ve that to them and say, 'Here 's why, becau se I've got e s t imate s that it's g o i n g to cost anoth er $2,50 0 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 anoth er check f o r a nothe r $2,50 0,' and you don't need the appra isal proce ss. 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 invok ing t he ap prais al pr ocess .'" Couns el for the insur eds respo nded, howev er, stati n g t h a t "that 's not the law o f the State of Alaba ma." A later collo quy i s as follo ws:

"THE COURT : So if the insur ed goes back -– each of these insur eds goes back and fil e s an amend ed proofof l oss - – "[BMI C'S COUNS EL]: We'll have -- what we're think ing is we shou l d have a chanc e to inves tigat e it. They could -- you'r e right
. T h e y could be a hundr ed pe rcent righ t, Ju dge. We d on't

-- "THE COURT : -- had a chan ce to inve stiga te it
. "[BMI C'S COUNS EL]: We have not. We don't even know -- there are peopl e with f i v e losse s. Judge . That lette r says every claim ever made under ev e ry polic y forthes e peo ple. "....

" I mean, they' ve got to show us somet hing that we can go back and inves tigat e, and at that p o i nt, if we don't agree with what their appra ise r says,

1011008 72

that' s the disag reeme nt that' s trigg ered to invok e the a pprai sal p roces s. .. . ".... "... They can't just say we disag ree when they don't even knowwhat our posit ion i s. "[INS URED' S COUNS EL]: We know w h a t your posit ion i s bec ause you m ade a paym ent -

- "[BMI C'S COUNS EL]: We made a paym e n t under a claim that your perso n accep ted. You'v e not sent us anyth ing t o let us k now h ow it was defic ient. "[INS URED' S COUNS EL]: We don't have to do that, Your Honor . ".... "THE COURT : How do you know if you don't say, you know, you under paid us a thousand dolla rs, that they' re no t goi ng to say you'r e rig ht? ".... "I don't think the a p p r aisal proce ss has been prope rly initi ated yet becau se the insur eds have not respo nded t o t h e basis of their disag reeme nt for [BMIC ] to make a deter minat ion of wheth er they disag ree with the asses sment by the insur eds or not, that until there is -- as [coun sel for BMIC] descr ibed it -— a mutua l disag reeme nt ... where the insur eds say, 'Our claim is for this amoun t of money and you'v e onl y paid us this amoun t,' and Baldw in Mutua l says, 'No,' there 's not a mutua l disag reeme nt a n d so, there fore, the appra isal proce ss, it' s preli minar y to invok e the appra isal proce ss and that once that happe ns - - s o, there fore, I think , the insur eds have to invok e som e t ype of basis for why they' re disag reein g with whate ver they have been paid so far and then whate ver the polic y says as far

1111008 72

as a reaso nable time
... to i n vesti gate and then d e t e rmine wheth er you accep t what their proof o f loss is or wheth er you rejec t it and that if you r eject it, then the appra isal proce ss c a n b e invok ed. "... It is the reope ning of a claim th a t h as been p r e v i o usly agree d to and the only way to logic ally reope n it is [for the insu r e ds to] tell them what you disag ree with what the amoun t of claim is. I mea n, th ere a in't no ot her w ay to do i t." Immed iatel y after the heari ng, the Baldw in Circu it Court issue d an order("th e Dec ember2010 orde r"), whichstat es:

"This matte r is befor e the Court on a preli minar y injun ction filed by [BMIC ] seeki ng a stay from the appra isal proce ss attempted to be invok ed by the [insu reds] , each beingan insur ed of [BMIC ], to re-op en certa in claim s previ ously proce ssed. Based on the legal and factu al argum ents prese nted, the Court finds that the a pprai sal proce ss o n these named [insu reds] has not been adequ ately invok ed becau se there is n o t a deter minat ion yet of wheth er there is an actua l disag reeme nt on the amoun t of loss. The [insu reds] have notif ied [BMIC ] that they now disag ree with the amoun t of money offer ed to settl e their claim s. Howev er, no insur e d has provi ded any basis for the curre nt rejec tion of the offer ed amoun t or provi ded any amend ed claim of loss. [BMIC ] cannot respo nd as to wheth er it c a n accep t an insur ed's claim amoun t o r not until it is prese nted with the new cla i m e d amoun t. There fore, since the appra isal proce ss has not been trigg ered the time limit of 20 days for [BMIC ] to discl ose an appra is er is STAYE D, pendi ng each [insu red] provi ding a basis for the reje ction of [B MIC's ] cla im se ttlem ent o ffer. " (Capi taliz ation in o rigin al; e mphas is ad ded.)

1211008 72

In the December 201 0 order , the Baldw in Circu it Court also noted that the part i e s disag reed as to wheth er each of the insur eds was entit led to disco very of BMIC' s claim file as to that insur ed. T h e c o u rt state d: "Beca use there exist 3 pendi ng class actio n suits in other court s withi n Alaba ma, all await ing class certi ficat ion, this Court is not incli ned to under take poten tial disco very issue s that mig h t b e tter be addre ssed by a c ourt that might certi fy the class ." There after , the prese nt actio n was trans ferre d to the Calho un Circu it Court ("the circu it court "), where Smith v. Baldw in Mutua l, CV-07 -9002 58, the first -file d of the class ac t i o ns again st BM IC, w as pe nding
. 5
On Febru ary 11, 2011, the insur eds filed a motio n in the circu it court entit led "Moti on to A lter, Amend , or Vacat e." The insur eds alleg ed that "it is not clear on the face of the [Dece mber 2010] order wheth er the Circu it Court of Ba l dwin Count y inten d e d to grant [BMIC 's] appli catio n for a preli minar y inj uncti on," and t hey r eques ted t hat t he ci rcuit court vaca te th e Dec ember2010 orde r "to the exten t tha t the

Initi ally, the case was assig ned to Calho un Circu it Judge 5 John C. Thoma son. It was reass igned to Calho un Circu it Judge Brian P. Howel l, befor e whom Smith was pendi ng at the time of these proc eedin gs. 1311008 72

same purpo rts t o gra nt in junct ive r elief ." A ccord ing t o the insur ed s , the December 2010 order did not satis fy the requi remen ts of Rule 65(d) , Ala. R. Civ. P ., becau se it alleg edly did n ot "d escri be in reas onabl e det ail . .. th e act

or ac ts so ught to be rest raine d." The insur eds a lso a rgued that "the facts unde rlyin g the entr y of the C ourt' s ord er do not satis fy the requi remen ts for the issua nce of a preli minar y injun ction ." BMIC filed a respo nse to the insur eds' "Moti on to Alter , Am e n d , or Vacat e." BMIC argue d that the insur eds' motio n shoul d be denie d becau se, BMIC argue d, the insur eds faile d to appea l from the December 2010 order pursu ant to Rule 4(a)( 1)(A) , Ala. R. App. P. ("[T] he notic e of appea l shall be filed withi n 14 days (2 weeks ) of the date of the entry of the orderor j udgme nt ap peale d fro m: (A ) anyinte rlocu tory order grant ing, conti nuing , modif y i n g , refus ing, or disso lving an injun ction ...." ). BMIC also argue d that, even if the 6 circu it court could recon sider the December 2010 order , the

BMIC also argue d tha t t he insur eds' "Moti on to Alter , 6 Amend , of Vacat e" had no t been timel y filed pursu ant to Rule 59, A la. R . Civ . P. 1411008 72

insur eds had faile d to show that the Baldw in Circu it Court had

excee ded i ts di scret ion a s to the e ntry of th e ord er. On March 15, 2011, the insur eds filed an answe r to BMIC' s compl aint and a coun tercl aim. The count ercla im al leged :

"60. Each [of the insur eds] is eithe r a prese nt or forme r BMIC p o l icy holde r or the succe ssor in inter est o f a B MIC p olicyhold er.

" 61. BMIC issue d polic ies of prope rty a n d casua lty insur ance to [the i nsure ds] or their succe ssors cove ring losse s to prope rty. "62. [The insur e ds] or their succe ssors each made claim s on the corre spond ing polic ies issue d to them or to thei r suc cesso rs. "63. [The insur eds] aver that these claim s were not p aid i n ful l. "64. [The insur eds] aver furth er that there was wides pread fraud assoc iated with the manne r in which theirclai ms we re ad juste d. "65. [The insur eds] aver that they each disag ree or have faile d to agree with BMIC regar ding amoun ts o f loss for each claim made by them or by th e i r succe ssors ." Based on the foreg oing alleg a t i o n s, the insur eds asser ted claim s of breac h of contr act i n the ir co unter claim , andthey reque sted a judgm ent "decl aring the v a rious right s of the parti es under the terms of each polic y issue d to [an insur ed]

1511008 72

or hi s or her o r its succ essor -in-i ntere st," parti cular ly as to ce rtain matt ers r egard ing t he ap prais al pr ocess . On Mar c h 18, 2011, the circu it court enter ed an order denyi ng the insur eds' "Moti on to Alter , Amend , or Vacat e" the December 2010 order . The March 2011 order furth er state d that the insur eds "must prese nt the appro priat e i n f ormat ion to prope rly trigg er the appra isal proce ss. The Stay shall remai n in ef fect until suchinfo rmati on is prov ided to [B MIC]. " Ther e a f ter, BMIC' s couns el sent the insur eds' couns el a lette r dated April 11, 2011. The lette r ackno wledg ed that the insur eds' couns el ha d pro vided "some infor matio n with respe ct to Hugh Bryan , Dora Bryan , M a r y Bulge r, Mary Hicks , Hatti e Jemis on, Glori a McCai n, Robert Tubbs and LeAnn a Willi ams. I n e e d to have them submi t to an Exami natio n Unde r Oath, as p er th e exp ress terms of t heir polic ies. "Also , it is imper ative that your cl i e n t s provi de me with a ll of the reque sted docum entat ion prior to the Exami natio n Under Oath. Ag a i n, this infor matio n has been reque sted b y w a y of the conso lidat ed disco very, and must also be provi ded per t he po licie s at issue
. "Many of the [insu reds] are attempting to submi t multi ple claim s to appra isal. Furth er, the claim s span over years and years . As a pract ical ma t t e r , it is very diffi cult to revie w the dw e l ling years after the fact and make any sort of accur ate ass e s s ment. Havin g docum entat ion, as has been reque sted, will certa inly allow [BMIC ] to deter mine

1611008 72

wheth er, in fact, it does disag ree with any conte nti o n s of your clien ts. In addit ion, in the event that there is disag reeme nt betwe en [BMIC ] and your clien ts, havin g this infor matio n readi ly avail able s h o u l d permi t the appra isers to make a more reaso ned and accur ate deter minat i o n as to w h ether any addit ional amoun ts are owed under the claim s in quest ion." On April 15, 2011, the circu it court held a heari ng as to vario us pendi ng motio ns, a n d , at the concl usion of the heari ng, the court reque sted that the parti es submi t brief s as to the issue of appra isal. The parti es submi tted b r i e f s . BMIC notedin i ts br ief:

"To date, ... only 14 of the 130 [insu reds] have provi ded any infor matio n other than the date of loss. Clear ly, with respe ct to the 116 or so [insu reds] that have provi ded n o t h i ng to [BMIC ] since r e c e iving payme nt from [BMIC ] and there by reach ing an 'agre ement ' with [BMIC ], there has been n o t h ing prese nted that would tend to estab lish a disag reeme nt. "Appr aisal has been deman ded again with respe ct to 7 of the [insu reds] -- (1) Banks ; (2) Bulge r; (3) Hicks ; (4) Key; (5) Kynar d; (6) M cNeal ; (7) Willi ams. With respe ct to each and every one of the seven [insu r eds], the only thing that has been provi ded to [BMIC ] follo wing the 'agre ement ' where in the [insu reds] were initi ally paid is the repor t of Saman tha Gr e e n , who has been retai ned by the [insu reds] as t heir exper t." On April 22, 2011, the circu i t court enter ed an order givin g B M I C "ten (10) calen dar days to name an appra iser in

1711008 72

this case as re quire d by the p rovis ions of th e pol icy" ("the April 2011 order "). There after , BMIC sough t clari ficat ion as to wh etherthe April 2011 orde r "appl ies with respe ct to all of the appro xi m a tely 130 [insu reds] , o r just the [insu reds] that have made the most recen t deman d for Appra isal. Secon d, [BMIC ] seeks clari ficat ion as to wheth er this Order , in addit ion to requi ring that [BMIC ] n a m e its appra iser, also hol d s that appra isal has been prope rly i nvoke d." O n April 29, 2011, the circu it court enter ed an order grant ing B MIC's moti on fo r cla rific ation . Th e ord er st ates: "The Court clari fies its earli er Order to state that the Cou r t finds suffi cient evide nce of a disag reeme nt as it relat es to the fourt een (14) [insu reds] that have made the most recen t deman d for appra isal. The Court finds that they have satis fied the terms of the polic y neces sary. Other [insu reds] may be added to this initi a l g roup of [insu reds] once they compl y with the requi remen ts of the polic y to in voke the a pprai sal p rovis ion." BMIC appea led to this Court pursu ant to Rule 4(a)( 1)(A) , Ala. R. App. P., gover ning appea ls from "any inter loc u tory order grant ing, conti nuing , modif ying, refus ing, or disso lving

an injun ction , or refus ing to disso lve or modif y an injun ction ." B M I C also filed a motio n in the circu it court reque sting that that court stay the April 2011 order , pendi ng resol ution of BMIC' s appea l. The circu it court denie d t he

1811008 72

motio n fora st ay. BMIC then fileda mo tion with this Court askin g tha t we stay the April 2011 order ; thi s Cou rt gr anted BMIC' s mot ion. II. S tanda rd ofRevi ew In the prese nt case, a preli minar y injun ction was issue d in December 2010. Ther eafte r, the April 2011 order (as clar i fied) modif ied the injun ction as to 14 of the insur eds and, in effec t, perma nentl y denie d BMIC' s claim s for i n j u n c t ive relie f as those 14 insur eds. The "fact s" befor e 7 the c ircui t cou rt we re un dispu ted, and n o ore tenu s evi dence

was prese nted at the proce eding s. Thus, the ore tenus rule is not appl i c a b l e, and, as this Court has state d, "wher e the t r ial court 's rulin g rests upon a const ructi on of fa c t s indis putab ly es tabli shed, this Cour t ind ulges no p resumption of corre ctnes s in favor of the lower court 's rulin g." Alaba ma Farm Burea u Mut. Cas. Ins. Co. v. Dyer, 454 So. 2d 921, 923–2 4

As to t h o s e 14 insur eds, the circu it court 's order 7 dispo ses o f the cent ral d isput e in this case: the timi ng of the appra isal proce ss in relat ion to the insur eds' fulfi llmen t of their post- loss dutie s. It requi res the parti es to engag e in the appra isal proce ss befor e the insur eds meet their postloss dutie s. Once this happe ns pursu ant to the court 's order , it canno t "unha ppen. " This is not an order that maint ains the statu s quo until relie f can be enter ed or provi des any sort of "prel imina ry" r elief ; the reli ef it orde rs is irre versi ble.

1911008 72

(Ala. 1984)
. "[W]h en the facts are undis pute d and the '"rul ing [is] a recon sider ation of a quest ion of law, ... the stand ard o f rev iew i s de novo. "'" Kappa Sigm a Fra terni ty v. Price -Will iams, 40 So. 3d 683, 694 (Ala. 2009) (quot ing Bradl ey

v. Town of A r g o , 2 So. 3d 819, 824 (Ala. 2008) , quoti ng, in turn, Pione er Natur al Res. USA, Inc. v. Paper , Allie d Indus ., Chem. & Energ y Worke rs Int'l Union Local 4–487 , 328 F.3d 818, 820 ( 5th C ir.20 03)). Furth er, as this Court noted in Twin City Fire Insur ance Co. v. Alfa Mutua l Insur ance Co., 817 So. 2d 687, 691-9 2 (Ala. 2001) : "A cont r a c t of insur ance, like other conta cts, is gover ned by the ge n eral rules of contr acts. ... 'Insu rance contr acts, like other contr acts, are con s t r u ed so as to give effec t to the inten tion of the parti es, and, to deter mine this inten t, a court must exami ne more than an isola ted sente nce or term; it must read each phras e in the conte xt of all other provi sions .'" (Quot ing Attor neys Ins. Mut. of Alaba ma , I n c. v. Smith , Block er & Lowth er, P .C., 703 S o. 2d866, 870 (Ala. 1996 ).)

"'Whe n analyzin g an insur ance polic y, a court g i v e s words used in the polic y the i r commo n, every day meani ng and inter prets them as a reaso nable p e r s o n in the insur ed's posit ion woul d have under stood them. Weste rn World Ins. Co. v. City of Tuscu mbia, 6 12 So. 2d 1159 (Ala.

2011008 72 1992) ; St. P a u l Fire & Marin e Ins. Co. v. Edge Mem'l Hosp. , 584 So. 2d 1316 ( A l a . 1991)
. ... Only in cases of ge n u ine ambig uity or incon siste ncy is it prope r to resor t to rules of const ructi on. Canal Ins. Co. v. Old Repub lic Ins. Co., 718 So. 2d 8 (Ala. 1998)
. A polic y is n ot made ambig uous by the fact that t he parti es inter pret the polic y diffe rentl y or disag ree as to the meani ng o f a writt en provi sion in a contr act. Watki ns v. Unite d State s Fid. & Guar. Co., 6 5 6 So. 2d 337 (Ala. 1994 ). .. .' "B.D. B. v. State Farm Mut. Au t o . Ins. Co., 814 So. 2d 87 7, 87 9–80 (Ala. Civ. App. 2001 )." State Farm Mut. Auto. Ins. Co. v. Brown , 26 So. 3d 1167, 1169 (Ala. 2009)
. "'If there is no ambig uity, court s must enfor ce insur ance contr acts as writt en and canno t defea t expre ss provi sions in a polic y ... by makin g a ne w c o n t r a c t for the parti es.'" Shrad er v. Emplo yers Mut. Cas. Co., 907 So. 2d 1026, 1034 (Ala . 200 5) (q uotin g St. Paul Merc ury I ns. C o. v. Chilt on–Sh elby Menta l Healt h Ctr., 595 So. 2d 1375, 1377 (Ala. 199 2 ) ) . "'[I] nsura nce contr acts are subje ct to the same gener al rules of all w r i t ten contr acts, that is, in case of doubt or uncer tai n t y of the meani ng there of, they are to be inter prete d again st t h e party drawi ng them. '" Upton v. Missi ssipp i Val ley T itle Ins. Co., 469 S o. 2d548, 555 (Ala. 1985) (quot ing Aetna Life Ins. Co. v. Hare, 47 Ala. App. 478,

2111008 72

486, 256 S o. 2d904, 911 (1972 )). In ot her w ords, "the rule that ambig uous insur ance c o ntrac ts are to be const rued in favor of insur eds ... may [not] be permi tted to frust rate the parti es' expre ssed inten tion if such inten tion can be other wise a scert ained ." 43 Am. Jur. 2d Insur ance § 299 (2013 ). See also Tinke r v. Conti nenta l Ins. Co., 410 A.2d 550, 553-5 4 (Me. 1980) (disc ussin g, to like effec t, the use of the l angua ge ofthe contr act a s a w hole as we ll as extr insic evide nce i n the cons truct ion o f an insur ance agree ment) . III. Analy sis BMIC ar g ues that the April 2011 order requi ring it to parti cipat e at this time in th e app raisa l pro cess as to some of the insur eds shoul d be rever sed: (1) becau se the insur eds at issue have not compl ied with their post- loss oblig ation s as descr ibed in provi sions of the insur ed's insur ance polic y and (2) becau se the insur eds have not estab lishe d the preco nditi on to the appra isal proce ss, namel y BMIC' s 'fail ure to agree ' or 'disa greem ent' with the i nsure ds as to t he va lue o f the loss at issue
. As discu ssed below , the first reaso n feeds into the

secon d.

2211008 72

BMIC is corre ct in its posit ion that the insur eds must compl y with their post- loss ob l i gatio ns as descr ibed in provi sions of the respe ctive insur ed's insur ance polic y befor e that insur ed may invok e the appra isal proce ss. To concl ude

o t h e r wise would refle ct an unrea sonab le readi ng of the insur ance polic ies at issue
. That is, as to the satis facti on of the insur ed's post- loss oblig ation s being a preco nditi on to the insur ed's asser tion of the right to an appra i s a l , the polic y is not ambig uous. See Slagl e v. Ross, 125 So. 3d 117, 136 (Ala. 2012) (Shaw , J., concu rring in the resul t i n part and disse nting in part) (reco gnizi ng that langu age is ambig uous where it "is susce ptibl e to at least two reaso nable inter preta tions "); Inter -Ocea n Cas. Co. v. Scrug gs, 24 Ala. App. 130, 132, 131 So. 549, 551 (1930 ) ("[W] hile it is pract icall y everywhere the accep ted rule that contr ac t s of insur ance must be most stron gly const rued again st the insur er, this rule canno t be press ed to the exten t of a d o p ting a const ructi on th at is unrea sonab le. Its appli cabil ity is limit ed to those cases where the langu age of the polic y is ambig uous and is susce p t i b le of two reaso nable const ructi ons." ).

2311008 72

Under the expre ss terms of the insur ance polic i e s at issue , an appra isal is a step that may be deman ded only after

an insur ance compa ny and an insur ed come to a state of disag reeme nt over the amoun t the insur er is to pay. Yet, the insur er has no oblig ation to pay any amoun t -- a condi tion

neces sary to pu t the part ies i n a s tate of di sagre ement over that a m o unt -- until the insur ed meets his or her post- loss oblig ation s. F or ex ample , the loss -paym ent c lause in p olicy CP-00 -99, one o f the poli cies at is sue h ere, state s: "f. We will pay for covere d loss or damag es within 30 days afte r w e recei ve the sworn state ment of loss, if: "1. You have compl ied with a l l of the terms of t his p olicy ; and "2. a. We have reachedan a greem ent with you o n the amou nt ofloss ; or "b. An appra is a l award has been made. " Polic y CP- 00-99 furt her p rovid es: "3. D UTIES IN T HE EVENT O F LOS S OR DAMAG E. "You must see that the follo wing are done in the e vent of loss or damag e to Cover ed Prope rty: "a. Notif y t h e p olice if a law may have been broke n.

2411008 72 "b. Give us promp t notic e of th e l oss or damag e. Inclu de a descr iptio n of the prope rty i nvolv ed. "c. As soon as possi ble, give us a descr iptio n of how, when and where the loss or da mage occur red. "d. Take all reaso nable steps to prote ct the Cover ed Pro p e rty from furth er damag e by a Cover ed Cause of Loss. If feasi bl e , set the damag ed prope rty aside and in the best possi ble order for exami natio n. Also keep a recor d of your expen ses for emerg ency and tempo rary repai rs, for consi derat ion in th e set tleme nt of the claim
. This will not incre ase the Limit of Insur ance. "e. At our reque st, give us compl ete inven tori e s of the damag ed and undam aged prope rty. Inclu d e quant ities , costs , value s and amoun t of lo ss cl aimed
. "f. Permi t us to inspect the prope rty a nd recor ds provi ng the loss or damag e. Also per m i t us to take sampl es of damag ed prope rty for inspe ction , testi ng an d ana lysis
. "g. If reque sted, permi t us to quest ion you under oath at such times as may be reaso nably requi red about any matte r relat ing to this insur ance or your claim , inclu ding your books and recor ds. In such ev ent, your answe rs must be si gned. "h. Send us a signe d, sworn state ment of loss conta ining the infor matio n we

2511008 72 reque st to inves tigat e the claim
. You must do this within 60 da ys after our reque st. We will supply you with the neces sary forms . "i. Coope rate with us in the inves tigat ion or se ttlem ent o f the clai m." (Emph asis added .) The other polic ies conta in simil ar provi sio n s requi ring an insur ed to submi t proof of loss and impos ing other post- loss oblig ation s, such as provi ding notic e, prote cting the prope rty from addit ional damag es, etc., b e f o re payme nt of loss must be made. In other words , t h e insur ance polic ies clear ly condi tion BMIC' s oblig ation to "pay for c overe d los s" up on it s rec eipt (1) o f a p roperstat ement of loss from the insur ed, and (2) the insur ed's compl i a n ce with the ins u r e d ' s post- loss oblig ation s descr ibed in the speci fic p olicy
. The foreg oing concl usion is corro borat ed when o ne consi ders the natur e of t h e " dutie s after loss" at issue
. E a c h of those is a duty that amoun ts to a precu rsor t o t h e estab lishm ent of a f a i r a n d final loss amoun t. Yet, of the appro ximat ely 130 insur eds, only 14 have provi ded even some of the d ocume ntati on BM IC ha s req ueste d in its i nvest igati on of the c laime d los ses.

2611008 72

Even the 14 insur eds who have provi ded some d o c u menta tion, howev er, have faile d to submi t to an exami natio n under oa t h as BMIC has reque sted. In addit ion, the m ost t hat a ny ofthemhas submi tted is a repor t pre pared by an appra iser chose n by the insur ed, or some confi rmati on of expen ses alleg edly incur red, as to a loss t h a t is sever al years old. Altho ugh perha ps helpf ul, t h e submi tted infor matio n does not provi de BMIC with all the infor matio n to which it is entit led u n d er the terms of the insur eds' polic ies, and the insur eds r e s p o nses fall far short of compl etion of the dutie s requi red to trigg er BM I C's duty to make an of fer t o set tle t he in sured 's cl aim f or a parti cular

amoun t in addit ion to the amoun t to which the i n s u r ed appar entlyhad previ ouslyagre ed. W e d o n o t s e e h o w t h e parti es can engag e one anoth er in a dispu te over the amoun t of loss invol ved, and go even furth er to invok e an admin istra tive proce ss fo r res olvin g tha t dis pute, unle ss an d unt il (1 ) the insur eds have provi ded the requi red notic e of loss, inclu ding the b asis for e ach i nsure d's c laime d los s andits value , and (2) the insur eds have permi tted BMIC to inves tigat e and verif y the claim ed losse s, as allow ed under the terms o f t h e

2711008 72

respe ctive polic ie s . See, e.g., Natio nwide Ins. Co. v. Nilse n, 745 So. 2d 264, 267 (Ala. 1998) ("An insur ance compa ny is entit led to requi re an insur ed to submi t to an exami natio n under oath as pa r t of its claim s inves tigat ion proce ss. ... [A]n insur er's oblig ation to p ay orto e valua te th e val idity of an insur ed's claim does not arise until the insur ed has compl ied with the terms of the cont ract with respe ct to submi ttingclai ms.") . Mo reove r, th e fai lure of th e ins ureds to have compl ied with their post- loss dutie s may be p a r t i cular ly probl emati c in this case. It appea rs that a signi fican t amoun t of time passe d (two years or more) betwe en all, or m o s t of, the claim ed losse s and the November 2010 lette r from the insur eds' couns el, by which BMIC was infor med that the insur eds "disa greed " with the p a yments they had recei ved in settl ement of the c laims the insur eds initi ally had m ade - - in some cases , yea rs ea rlier-- a nd th at ea ch of the i nsure ds no w was dema ndingan a pprai sal. As BMIC corre ctly notes in its brief , an i nsure d must compl y with his or her post- loss oblig ation s when the insur ed is makin g a claim upon the i n s u r er, and meeti ng those oblig ation s is a pre condi tion to an y dut y on the p art o f the

2811008 72

insur er to make a lo ss pa yment . Se e Nil sen, supra ; Akp an v. Farme rs Ins. Exch. , Inc., 961 So. 2d 865, 872 (Ala. Civ. App. 2007) . "[ T]he oblig ation to p ay orto e valua te th e val idity of the claim does not arise until the insur ed has compl ied with the terms of the contr act with r e s p e c t to submi tting claim s." Unite d Ins. Co. of Ameri ca v. Cope, 630 So. 2d 407, 411 (Ala. 1993)
. "[N]o case from this Court p l a c e s on an insur ance compa ny an obli gatio n to eithe r inv estig ate o r pay a cla im un til t he in suredhas compl ied w ith a ll ofthe terms of the contr act with respe ct to submi tti n g c l a ims for payme nt." 630 So. 2d at 412; see also Reeve s v . S t ate Farm Fire & Cas. Co., 539 So. 2d 252, 254 (Ala. 1 9 8 9 ) ( " O u r cases have consi stent ly he ld .. . tha t the fail ure o f an insur ed to compl y withi n a reaso nable time with such condi tions prece dent in an insur ance polic y requi ring the insur ed to give notic e of

an accid ent or occur rence relea ses t h e insur er from oblig ation s imp osed by th e ins uranc e con tract ."). We also agree with BMIC that, absen t the estab lishm ent of

a duty to pay, there canno t be a genui ne "disa greem ent" betwe en the parti es as to the issue of the prope r amoun t of a payme nt. We find helpf ul in this regar d the decis ion in

2911008 72

Unite d State s Fidel ity & Guara nty Co. v. Romay , 744 So. 2d 467, 471 ( Fla. Dist. Ct. App. 1999) , in whichthe court held that th e i nsure d must compl y with the polic y's post- loss oblig ation s befor e the appra isal claus e is trigg ered. As the Romay court expla ined, "the disag reeme nt neces sary to trigg er appra isa l c a nnot be unila teral . ... In other words , by the term s of the contr act, it was conte mplat ed that the parti es would engag e in some meani ngful excha nge of inf o r matio n suffi cient for each partyto a rrive at a conc lusio n bef ore a disag reeme nt could exist ." Romay , 744 So. 2d at 469

- 70; see also Haile y v. Auto- Owner s Ins. Co., 181 N.C. App. 677, 687, 640 S.E.2 d 849, 855 (2007 ) ("[T] he unsup porte d opini on of the insur ed th at th e ins urer' s payment was i nsuff icien t doe s not rise to t he level of a disag reeme nt neces sary to invok e appra isal.
... [T]o t h e exten t Defen dant reque sted that Plain tiff compl y with Plain t iff's post- loss dutie s prior to invok ing appra isal, such compl iance was a neces sary condi tion prece dent to th e inv ocati on ofappr aisal ."). The R omay court also stat ed: "[P]e rmitt ing the insur ed to compe l appra isal witho ut first compl ying with the polic y's post- loss obl i g a tions would place the insur er at a consi derab le disadvanta ge enter ing the appra isal

3011008 72

proce ss. The natur e of the post- loss oblig ation s is merel y t o provi de the insur er with an indep enden t means by which to deter mine the amo u n t of loss, as oppos ed to relyi ng solel y on the repre senta tions of the i nsure d." 744 So. 2d at 471 n.4; see also Galin do v. ARI Mut. Ins. Co., 2 0 3 F.3d 771, 777 (11th Cir. 2000) (appl ying Romay and concl uding that a n " i n suran ce compa ny must be given an oppor tunit y to inves tigat e a s upple menta l cla im be fore there

can be a disag reeme nt betwe en the parti es regar ding the amoun t of prope rty loss or damag e to effec tuate appra isal" ); Haile y,

s u pra. In other words , the insur ed must satis fy hi s o r h e r post- loss oblig ation s so that the insur er can know wheth er it does or d o e s n o t agree with the insur ed's claim as to the

amoun t of the l oss a t iss ue. IV. C onclu sion
B a s e d on the foreg oing, the circu it court erred by order ing BMIC to engag e in t he appra isal proce ss befor e the insur eds satis fied their respe ctive post- loss oblig ation s and befor e BMIC had s u ffici ent infor matio n on which it could decid e wheth er it disag reed with the respe ctive claim s of the insur eds. Accor dingl y, we rever se the April 2011 order of the

3111008 72

circu it co urt a nd re mand this matte r forfurt her p rocee dings consi stent withthis opin ion.
REVER SED AND RE MANDE D. Stuar t, Bolin , Parke r, Shaw, Wise, and Bryan , JJ.,

concu r. Moore , C.J ., di ssent s.

3211008 72

MOORE , Chi ef Ju stice (dis senti ng).
I respe ctful ly disse nt. As the main opini on notes , Baldw in Mutua l Insur ance Compa ny ("BMI C") raise s two issue s on appea l: (1) Wheth er the insur eds m a y d emand and invok e an appra isal in light of the fact that "the insur eds ... have not compl ied with their post- loss oblig ation s a s d escri bed in provi sions of the insur ed's insur ance polic y"; and (2) wheth er the insur eds have "esta blish ed the preco nditi on t o t h e appra isal p r o c e ss, namel y BMIC' s 'fail ure to agree ' or 'disa greem ent' with the i nsure ds as to t he va lue o f the loss at is sue." ___So. 3d at ___. As to the first issue , BMIC argue s that the insur eds may not deman d or invok e an appra isal becau se, BMIC says, t h ey have faile d to compl y with the post- loss oblig ation s in their insur ance polic ies. BMIC argue s that, to prope rly invok e an appra isal under the vario us polic i e s, the insur eds were requi red to fulfi ll certa in post- loss oblig ation s. BMIC notes that no Alaba ma appel late court has addre ssed the effec t of an insur ed's nonco mplia nce with post- lo s s oblig ation s on the insur ed's abili ty to invok e an appra isal. BMIC relie s on cases from otherjuri sdict ions for t he pr oposi tion that an in sured

3311008 72

may n ot de mand an ap prais al wi thout firs t complyin g wit h the post- loss oblig ation s in the u nderl ying polic ies. See, e.g., Unite d Sta tes F id. & Gaur . Co. v. R omay, 744 So. 2 d 467 , 471 (Fla. Dist. Ct. App. 1999) ("No reaso nable and thoug htful inter preta tion of the polic y could suppo rt comp e l l ing appra isal w i t h out first compl ying with the post- loss obli g ation s."); Galin do v. ARI Mut. Ins. Co., 203 F.3d 771, 777 (11th Cir. 2000) ("[W] e hold that these insu r e d s must compl y with the post- loss terms of their res p e c tive homeo wner' s polic ies, which enabl es the insur ance compa nies to inves tigat e the insur eds' claim s and to disag ree with the loss

amoun t befor e the appra isal term becom es effec tive. "); Haile y

v. Auto- Owner s Ins. Co., 181 N.C. App. 6 7 7 , 687, 640 S.E.2 d 849, 855 (2007 )( " [ T ] o the exten t Defen dant reque sted that Plain tiff compl y with Plain tiff ' s post- loss dutie s prior to invok ing appra isal, such compl iance was a neces sary condi tion prece dent to the invoc ation o f a p prais al.") . Accor ding to BMIC, these forei gn cases align with Alaba ma cases ho l ding that an in sureris n ot ob ligat ed to pay an in suredunti l the insur ed has submi tted claim s to the insur er pursu ant to the terms of the polic ies. Natio nwide Ins. Co. v. Nilse n, 745 So.

3411008 72

2d 26 4, 26 7 (Al a. 19 98)(" [A]n insur er's oblig ation to p ay or to evalu ate the valid ity of an insur ed's claim does not arise until the insur ed has compl ied with the terms of the contr act with respe ct to submi tting claim s."). There fore, BMIC a s ks this Court to hold that the insur eds mu s t satis fy certa in post- loss oblig ation s befor e deman ding an appra isal accor ding to th eir p olici es. By their terms , howev er, the polic ies do not requi re the insur eds to first satis fy the post- loss oblig ation s b e f o re deman ding an appra isal. The p a r ties stipu late that the appra isal provi sions are rough ly th e sam e in each polic y: "Appr ai s a l . If you and we fail to agree on the value s of the prope rty or the amoun t of loss, eithe r may make writt en deman d for a n a pprai sal of the loss. In this event , ea c h p a r ty will selec t a compe tent and impar tial appra iser. The two appra isers will selec t an umpir e. If th e y c annot agree , eithe r may reque st that selec tion be made by a judge of a court havin g juris dicti on. The appra isers will state separ ately the val u e of the prope rty and amoun t of loss. If they fail to agree , they will submi t their diffe rence s to an umpir e. A decis ion agree d to by any two will be bindi ng. Each party will: Pa y its chose n appra iser and bear the other expen ses of the appra isal and umpir e equal ly." The secti on of the polic ies regar ding post- loss oblig ation s is entir ely s epara te fr om th e sec tion of th e pol icies rega rding

an ap prais al. Neith er secti on makes refer ence to the other . 3511008 72

Nothi ng in the polic ies state s that post- loss provi sions must be satis fied befor e the i n s ureds may invok e the appra isal provi sions
. Inste ad, the polic ies maint ain that eithe r BMIC or the insur eds may deman d an appra isal if BMIC and the insur eds disag ree o n the valu e of the p roper ty orthe amoun t of loss. Such disag reeme nt could arise at any time. The polic ies do not speci fy that the insur eds must bring their disag reeme nt to the atten tion of BM IC on ly af ter t hey h ave s atisf ied t heir postl o s s oblig ation s. The plain and unamb iguou s terms of th e polic ies sugge st that the insur eds may deman d an appr a isal whene ver they disag ree with BMIC regar ding the v alue of the prope rty o r t he amoun t of loss. Altho ugh BMIC attempts to portr ay the perfo rmanc e of post- loss oblig ation s as a condi tion prece dent to appra isal, no langu age in the polic ies suppo rts that inter preta tion. Publi c Bldg. Auth. of Hunts ville v. St . Pau l Fir e & M arine Ins. Co., 80 S o. 3d171, 180 (Ala. 2010) ("A court may not make a new contr act for the parti es or rewri te th eir c ontra ct un der t he gu ise o f con strui ng it .").
BMI C w o uld have us adopt holdi ngs from other juris dicti ons to estab lish a brigh t-lin e rule for all Alaba ma insur ance cases , nam ely, that an in suredmust alwa ys sa tisfy

3611008 72

post- loss oblig ation s befor e invok ing appra isal provi sions in

an insur ance polic y. Such a rule impai rs the oblig ati o n of exist ing contr acts betwe en insur eds and insur ers. "Ge n e r al rules of c ontra ct la w gov ern a n ins uranc e con tract ." Sa feway Ins. Co. of A l a b a m a , Inc. v. Herre ra, 912 So. 2d 1140, 1143 (Ala. 2005 ). "T he Co urt must e nforc e the insu rance poli cy as writt en ifthe terms are unamb iguou s." I d.
H e re, the polic ies are not ambig uous: They allow both
B MIC and the insur eds to deman d an appra isal if the par t i e s d i s a gree about the value of the prope rty or the amoun t of loss. Altho ugh to compe l an appra isal in Flori d a requi res a party fi r s t t o compl y with the post- loss provi sions in an insur ance po l i c y , no such law exist s in Alaba ma. Had the 8
p a r t ies wishe d to be bound by such a rule, they could h a v e inclu ded it in their p o l i cies. It is unrea sonab le to hold that, when the insur eds pur chase d their polic ies from BMIC, they shoul d have expe c t e d F lorid a law to gover n their polic ies. This Court shoul d not read into a con t r act a provi sion that is no t the re. H arbis on v. Stri cklan d, 90 0 So.

See, e.g., Citiz ens Prop. Ins. Corp. v. Mango Hill Condo . 8 Ass'n 12 Inc., 54 So. 3d 5 7 8 , 5 8 1 -82 (Fla. Dist. Ct. App. 2011)
. 3711008 72

2d 38 5, 39 1 (Al a. 20 04)(" '"[A] cour t sho uld . .. pr esume that the p artie s int endedwhat the terms of t he ag reeme nt cl early state ."'" (quot ing o ther cases )). Nor shoul d this Court add provi sions to an insur ance polic y accor d i n g to what it perce ives to be indus try-w ide insur ance stand a r d s and pract ices a s t o w hich the polic y is silen t. Poole v. Hende rson, Black & Green , Inc., 584 So. 2d 48 5 , 4 87 (Ala. 1991) ("'"T he gener al rule of contr act law is th at, if a writt en con t r a c t exist s, the right s of the parti es are contr olled by that contr act , a n d parol evide nce is not admis sible to c ontra dict, vary , addto, or su btrac t fro m its terms ."'"( quoti ng Rime- Shatt en Dev. Co. v. B i r m ingha m Cable Commc 'ns, Inc., 569 So. 2d 332, 334 (Al a . 1 990), quoti ng in turn Clark v. Alber tvill e Nursi ng Home, Inc., 545 So. 2d 9, 11 (Ala. 1989 ))). There fore, I wo uld a ffirmthe circu it co urt's April 2011 orde r as to th e fir st is sue. As to the secon d issu e , BMIC argue s that the insur eds have faile d to estab lish a "fail ure to agree " o r a "disa greem ent" r egard ing the amoun t of loss and, there fore, may not deman d an appra isal. In parti cular , BMIC conte nds that the insur eds faile d to provi de suffi cient ev i d e n c e (e.g. ,

3811008 72

estim ates from contr actor s) th at th e par ties disag reed about the amoun t of loss eithe r befor e or after BMIC compe nsate d the insur eds f or th e los s. In resp onse, the insur eds a llege that they estab lishe d a "disa greem ent" regar ding the amoun t of loss when, afte r rec eivin g a c heck from BMIC to co ver t heir loss, they notif ied BMIC that the amoun t of the check was inade quate and t hat t heir deman d foran a pprai sal i s in accor dance with theirpoli cies. The point of t he ap prais al, t hey c onten d, is to deter mine not wheth er a disag reeme nt betwe en the par ties exist ed, b ut th e amo unt o n whi ch th e par ties disag ree. BMIC quote s from cases hold i n g that there must be an actua l disag reeme nt betwe en the parti es regar ding the value of the p roper ty orthe amoun t of loss in or der t o eff ectua te an appra isal. These holdi ngs are in keepi ng with the polic ies in

9 this case. BMIC does n o t argue that it disag rees with the insur eds' alleg ation that BMIC inad equat ely c ompen satedthem for their loss. Rathe r, BMIC alleg es that it does not have enoug h infor matio n to deter mine wheth er it disag rees with the insur eds regar ding the amoun t of the loss becau se the insur eds have not ident ified , with suffi cient evide nce, what they
E.g., Jerse y Ins. Co. v . R o d dam, 256 Ala. 634, 637-3 8, 9 56 So . 2d 631, 633-3 5 (19 52); Romay , 744 So. 2d at 469- 70. 3911008 72

consi der the amoun t of loss to be. If the insur eds had compl ied with the post- loss oblig ation s in the polic ies, BMIC adds, there might have been suffi cient evide nce to allow BMIC to deter mine wheth er its asses sme n t o f the amoun t of loss diffe rs fr om th e ins ureds ' ass essme nt ofthe amoun t of loss. Accor dingl y, t his Court must deter mine wheth er the circ uit court erred by denyi ng BMIC' s motio n for injun ctive relie f based on the circu it court 's findi ng that 14 of the 130 insur eds h ad pr offer ed en ough evide nce o f the amou nt ofloss to effec tuate an appra isal under the polic y. BMIC dec l ares that no such evide nce exist s or that the exist ing evi d e n ce does not suppo rt the circu it court 's fin d i n g that these insur eds prese nted suff i c i ent evide nce to invok e the appra isal. Howev er, BMIC does not descr ibe the evide nce in the

r e cord and befor e the circu it court or expla in how th e speci fic conte nts of such evide nce were inade quate to suppo rt the c ircui t cou rt's ordergran ting the a pprai sal. This Court has state d that the appel lant "h a s a heavy burde n when it seeks a re versa l of an or der o n the grou nd th at th e dec ision is not suppo rted by the evide nce." Curti s White Const r. Co. v.

4011008 72

Butts & Bi lling sley Const r. Co ., 47 3 So. 2d 1 040, 1041 (Ala. 1985)
. "It is the funct ion of a trial judge sit t ing as factf inder to decid e facts wher e confl icts in the evide nce exist
. Such was the case here. The appel late court s do not sit in judgm ent o f t he facts , and revie w the factf inder 's deter minat ion of facts only to the exten t of deter minin g wheth er it is s u f ficie ntly suppo rted by the evide nce, that quest ion being one of law. No error of law exist s in this case, a nd where there is evide nce to suppo rt the decis ion reach ed by the factf inder , we must affir m its judgment. " 4 7 3 So. 2d at 1041. Becau se there is ample evide nce i n t h e

recor d to suppo rt th e dec ision reac hed b y the circ uit c ourt, inclu ding detai led estim ates, drawi ngs, and photo graph s of the damag e at issue , and becau se BMIC makes no attempt to expla in in detai l how this evide nce doe s n o t s uppor t the circu it court 's findi ngs that the 14 insur eds had prope rly invok ed the appra isal provi sions in the polic ies, I would a f f i rm the circu it co urt's orde r. Final ly, BMIC claim s t h a t , "if an insur ed has not retai ned a contr actor or repai rman, or obtai ned an estim ate of the amoun t of loss from some other sourc e, it is diffi cult to under stand h ow an insur ed could , in fact, disag ree with the insur er's deter minat ion of the amoun t of loss. " Never thele ss,

4111008 72

the polic ies by their terms did not requi re the insur ed to retai n a contr actor or a repai rpers on or to obtai n an estim ate of the amoun t of los s f r o m s o me other sourc e as a condi tion prece dent to in v oking the appra isal provi sions
. "'Cou rts

canno t make contr acts for parti es, but must gi v e s u c h contr act s as are made a reaso nable const ructi on and enfor ce them accor dingl y.'" Charl es H. McCau ley Assoc s., Inc. v. Snook , 339 So. 2d 1011, 1015 (Ala. 1976) (quot ing R.P. Harri s,
& Co. v. Thoma s, 17 A l a . Ap p . 634, 635, 88 So. 51, 52 (1921 )). "[W]e know of no canon of const ructi on that warra nts

an inter preta tion the only effec t of which is to relie ve a party to the contr act from conse quenc es deeme d by him hard or unfai r." Lille y v. Gonza les, 417 So. 2d 161, 163 (Ala. 1982)
. "[I]t is the duty of the [C]ou rt to enfor ce [the contr act] as writt en." Kinno n v. Unive rsal Under write rs In s. Co ., 41 8 So. 2d 887, 888 (Ala. 1982)
. To hold other wise is to requi re

consu mers purch asing insur ance polic ies to know not only what provi sions appe ar in suchpoli cies, but also what judic ially creat ed provi si ons exist for such polic ies outsi de the four

corne rs of the polic ies. Ordin a ry consu mers of insur ance polic ies are not lawye rs and shoul d not be expec ted to searc h

4211008 72

"case law" for provi sions appli cable to their polic ies that do not a ppearin s uch p olici es. For t hese reaso ns, I resp ectfu lly d issen t.

43