Law professors in Alabama should take note of the recent Alabama Supreme Court decision of Robert Bowers, Jr., personal representative of the Estate of Charles Lewis Evans, deceased, et al. v. BBH SBMC, LLC, d/b/a Shelby Baptist Medical Center, et al. (SC-2023-0216, October Term). These tortuous series of facts and claims that, if included in a final exam, will surely drive half their class to abandon the desire to practice law, as it has almost done to me.
What was intended as a pre-suit settlement of a wheels case is now a medical malpractice wrongful death claim. It’s heading for an evidentiary hearing in the Circuit Court to unravel still unresolved issues regarding who can, and how to settle the claim after the plaintiff dies. While much in the case remains unsure, the Alabama Supreme Court did address with finality whether an attorney, acting under apparent authority, can settle a wrongful death claim or if only the personal representative may do so.
To appreciate how, and why, this question was even raised – and as a temptation for anybody who writes law school exams – a summary of the background facts is irresistible. In 2016 (not a typo) defendant Short was in an accident with Charles Evans, John Evans, and Linda Evans. Charles, an adult with special needs, went to the hospital and was discharged the day of the accident. He collapsed at home the next morning. By 4:35 p.m., The Slocumb Law Firm filed a personal injury suit for John and Linda Evans, and a medical malpractice suit for Charles by virtue of his brother John’s power of attorney. Less than four hours later, Charles died.
The very next day, counsel from the Slocumb Firm contacted Mr. Short’s auto insurer to advise of its representation. The Slocumb Firm claimed to be representing Charles directly, though he was dead, though his brother had power of attorney, and though no estate had been opened nor a personal representative been appointed. Nonetheless, the carrier wrote back to The Slocumb Firm regarding John, Linda, and “the Estate of Charles Evans” and confirmed policy limits had been tendered.
Approximately two weeks later, the carrier issued checks to the surviving claimants but had to wait for the appointment of an administrator to issue the third and final check. The Slocumb Firm petitioned the Chilton Probate Court to issue letters of administration to a county administrator and, consequently, Robert Bowers was appointed the personal representative of Charles’s estate. The same day, March 15, 2016, the Slocumb Firm filed a suggestion of death in the medical malpractice case with Bowers to be substituted as the plaintiff. The Slocumb Firm provided Mr. Short’s auto carrier the evidence of appointment, and the carrier then issued the third and final check to “Robert L. Bowers Jr., Attorney Administrator for the Estate of Charles Lewis Evans, Jr. and Slocumb Law Firm LLC” along with a release.
In May 2016, before the releases were signed, additional counsel filed a notice of appearance for Bowers. It was not until September that the releases sent by Short’s carrier were signed. The release on behalf of “the Estate of Charles Evans, Jr.” was not signed by Bowers, however, but by John Evans who signed his name, perhaps signed Charles’ name, and had a notary attest that “John Evans” appeared before her to “acknowledge” Charles Evans voluntarily executed the release, though Charles was dead. The check was a different story, it seemed. The check was negotiated by The Slocumb Firm with the name Robert L. Bowers signed on the back. Mr. Short’s carrier thought the case was over. It was not.
On November 27, 2017, the new lawyers for Plaintiff Charles Evans filed a second amended complaint adding multiple medical malpractice defendants and, to the surprise of Mr. Short and his carrier, him as well. The Slocumb Firm was listed as “Of Counsel” on this second amended complaint, but it is the last time the firm would appear on the pleadings despite never filing a motion to withdraw. The auto carrier for Mr. Short pointed to the signed release and negotiated check as evidence of the prior settlement, as well as the string of letters from The Slocumb Firm. The Slocumb Firm refunded the settlement proceeds, the personal representative Robert Bowers claimed his signature on the check was forged, and the heirs of Charles Evans eventually filed affidavits denying they consented to any settlement. The auto carrier argued it was reasonable to rely on The Slocumb Firm’s actions as counsel for the personal representative of the estate. There was never an expressed or implied limitation on the firm’s scope of representation and, lest we forget, the firm accepted and negotiated the check ostensibly on behalf of its client.
The sequence of events above, and the myriad of legal issues presented, is almost incredible. Charles Evans was an adult with special needs, thus creating competency issues. He died within a few dozen hours of an automobile accident, but still had time to file a medical malpractice claim before he passed, thus preserving the personal injury claims. But he did not name the other driver in his lawsuit until almost two years later. During that time, his original counsel negotiated a settlement, opened his estate, and had a personal representative appointed, yet his brother (who had power of attorney when the personal injury suit was filed) signed the release both in his own name and that of his deceased sibling, with a notary attesting the deceased Charles consented. The check was ostensibly signed by the personal representative and cashed. Could this be evidence in writing of the settlement? Probably but the story was not over - the personal representative disavowed his signature, denied knowledge of the settlement, and claimed he never received the money.
One is left to wonder what sequence of events took place that led to his unauthorized signature appearing on the check, but we do know the original plaintiff’s firm refunded the money and then just faded away, dropping off the pleadings without moving to withdraw. Next, two different siblings of Charles Evans came out of the woodwork and denied their brother John had their consent to sign the release, thus circumventing Alabama precedent that the heirs of an estate can uniformly settle a wrongful death claim without the representative’s participation. Not to be forgotten, the medical malpractice defendants argued the release language was broad enough to release them from any subsequent medical negligence. Finally, as for the personal representative, though he denied knowledge of the settlement, he failed to deny The Slocumb Firm did not have his authority to settle the case, thus creating a telling gap in the evidence as to whether the Slocumb Firm had its client’s permission to resolve the case.
It is to this last issue that the Supreme Court of Alabama spoke with finality. Counsel for the estate argued the settlement could not be binding because only the personal representative, and not the lawyer for the personal representative, can settle the case. With Bowers now denying he signed the check, and the release only signed by Plaintiff’s brother (who used to have power of attorney) counsel for the estate argued there was nothing in writing from the personal representative evidencing an intent to settle. Conduct of counsel was immaterial. Alabama law, the estate contended, was clear that only the personal representative can settle a case. The wrongful death statute, in other words, created an exception to the general rule that a lawyer may bind his client. The court disagreed. And on this point, at least, the issue is resolved:
Bowers asks this Court to hold that § 34-3-21, Ala. Code 1975, which addresses an attorney's general authority to bind his or her client, "does not trump or overrule longstanding Alabama precedent holding that only the personal representative has the authority to settle a wrongful death claim." Appellants' brief at 29 (citing Ex parte Continental Motors, Inc., 270 So. 3d 1148, 1152 (Ala. 2018)). Although this Court has not expressly applied § 34-3-21 to a wrongful-death claim, we see no reason to create an exception to its application here. Alabama's wrongful-death statute, § 6-5-410, Ala. Code 1975, makes the personal representative of an estate the "client" for purposes of § 34-3-21, and an attorney, with the proper authority, has the ability to negotiate and settle claims on behalf of a personal representative.
Id. at p. 24, n. 9. In other words, even in the context of a wrongful death claim, the estate is the attorney’s client to the same extent any living claimant would be. The rules applicable to the attorney / client relationship are not altered in the context of a wrongful death claim.
Frustratingly, though that issue is resolved, the Bowers matter persists. The putative settlement was negotiated by the carrier without having assigned the claim to counsel. The claims professional for the carrier was diligent but could not have foreseen the extent of the estate’s subsequent efforts to undue the settlement. Thus, the carrier’s evidence was insufficient to allow the Supreme Court to conclude The Slocumb Firm had the requisite apparent authority to settle the case back in 2016. At the same time, however, the estate could not provide conclusive evidence to the contrary. The personal representative has yet to deny The Slocumb Firm lacked his express authority to act, instead opting for more vague statements claiming he did not know about the settlement. The Alabama Supreme Court has remanded this case for an evidentiary hearing as is appropriate when factual questions surround an attorney’s authority.
The potential problems created by this ruling did not go unnoticed by Justice Wise in her concurring opinion. While apparent authority of any agent is derived by the conduct of the principal, the consequences of this ruling can place unrealistic and needless obligations on a third party to obtain proof that the lawyer actually has the authority to settle a case for his client.
Though it is the client, and not the lawyer, that can settle a case, “an attorney of record is presumed to have his client’s authority to compromise and settle litigation, [and] a judgment entered upon a  [settlement] agreement by the attorney may be set aside [only upon] affirmative proof that the attorney had no right to consent to its entry….” Blackwell v. Adams, 467 So. 2d 680, 684-685 (Ala. 1985) (plurality opinion). Justice Wise agreed the Court reached the correct result – that an evidentiary hearing was appropriate – but would have the trial court apply the presumption The Slocumb Firm had authority to settle the case and require Bowers to overcome it. Her rationale is well supported by the public policy encouraging settlements and achieving finality to litigation:
This presumption of authority reflects "a compromise between the practical necessity of according substantial weight to representations made by members of the Bar and the agency rule that attorneys have no implied or apparent power to compromise an action solely by virtue of their employment." Aiken v. National Fire Safety Couns., 36 Del. Ch. 136, 139, 127 A.2d 473, 475-76 (1956). Moreover, use of the presumption serves three important purposes. First, "[u]se of ... [the] presumption is a recognition that, in the context of settlement agreements, the traditional agency rule would require the third party with whom the attorney is dealing to prove the existence of authority, and that party may be far removed from the proof of actual authority." [Grace M. Giesel, Enforcement of Settlement Contracts: The Problem of the Attorney Agent, 12 Geo. J. Legal Ethics 543, 567 (1999)]. Second, "[u]se of the presumption is ... recognition of the special status, ethical and fiduciary, of an attorney." Id. at 567-68. Finally, use of "[t]he presumption, of course, ... honors the public policy in favor of settlements and the finality of the judicial process." Id. at 568.
Id. at 33. There is much to unpack in this important ruling which serves as a fair warning to carriers negotiating even what seem to be simple pre-suit settlements. Sometimes a settlement is not settled, which is unsettling, to say the least.
About the Author
Neal D. Moore, III
Christian & Small
Neal is a partner at Christian & Small and has spent his career defending and trying cases involving personal injury and death. He specializes in complex product liability matters, working closely with professionals in industrial and commercial enterprises to defend claims of allegedly defective devices and equipment. In addition to his personal injury work, Neal has a specialized focus in the financial regulations governing lenders and debt collectors. He is a member of the Alabama Defense Lawyers Association, the International Association of Defense Counsel, and the KISS Army.