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Notice: T h i s o p i n i o n i s s u b j e c t t o formal r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e R e p o r t e r o f D e c i s i o n s , Alabama A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r .

ALABAMA

COURT OF CIVIL
SPECIAL TERM, 2009

APPEALS

2080497

C h r i s t o p h e r Myers v. J e f f e r y K e i t h H a r r i s and P r o g r e s s i v e S p e c i a l t y Insurance Company Appeal from Cullman C i r c u i t Court (CV-08-900149)

THOMAS,

Judge. Myers appeals Jeffery from a judgment d i s m i s s i n g h i s Keith Harris and Progressive following

Christopher complaint

against

S p e c i a l t y I n s u r a n c e Company f o r l a c k o f p r o s e c u t i o n his failure t o respond to discovery

requests, his failure to

2080497 obey a discovery We affirm order, that and part his failure to appear at a

hearing.

of the judgment

dismissing

the

c o m p l a i n t a g a i n s t P r o g r e s s i v e , b u t we r e v e r s e judgment On alleging dismissing June that 16, the complaint Myers against Harris

that p a r t of the

Harris. and Progressive, motor-vehicle

2008, had

sued

Harris

n e g l i g e n t l y caused a

c o l l i s i o n that resulted i n personal

i n j u r i e s t o Myers and t h a t insurance under Myers On carrier, Myers's served 17, with 31,

P r o g r e s s i v e , Myers's underinsured-motorist was potentially policy. liable to him with

f o r benefits the complaint,

insurance Harris and

Along

Progressive

with

interrogatories.

July

2008, P r o g r e s s i v e a n s w e r e d t h e c o m p l a i n t and s e r v e d Myers interrogatories 2008, Harris and requests same. f o r production. On August 7, On 2008, August On July

d i d the

Progressive 22, 2008,

answered

Myers's

interrogatories.

Progressive's to

counsel,

h a v i n g r e c e i v e d f r o m M y e r s no r e s p o n s e to Myers's counsel

i t s discovery

requests, wrote a l e t t e r

requesting

a response w i t h i n 14 days. a n d , on S e p t e m b e r

Myers

d i d not respond filed a

to the l e t t e r ,

5, 2 0 0 8 ,

Progressive

R u l e 3 7 , A l a . R. C i v . P . , m o t i o n t o c o m p e l M y e r s t o r e s p o n d t o its discovery requests.

2

2080497 Myers trial filed nothing in opposition to that motion. 2008, The

court granted

t h e m o t i o n on

September 10,

ordering requests trial 2008, filed trial

Myers to respond to P r o g r e s s i v e ' s for production w i t h i n 10 days.

i n t e r r o g a t o r i e s and

Myers f a i l e d and, on

to obey the

court's

September 10, moved t o to the an

2008, o r d e r , dismiss

S e p t e m b e r 25, Myers the

Progressive no response

Myers's On

complaint. 29, i t

motion. order as on at

September that

2008, would and

court

entered

stating one for

consider the nor

Progressive's matter his

motion

sanctions, 2008.

i t set Myers

for a hearing appeared 22,

December 18, the hearing. the trial

Neither

counsel On

December

2008,

court

dismissed his R.

Myers's action. P., 18, get in

complaint The same

for his failure day, Myers

t o a p p e a r and a Rule not

prosecute Ala.

filed

59(e),

Civ.

m o t i o n , a s s e r t i n g t h a t he h a d 2008, hearing on

a p p e a r e d a t the December the had date not d i d not engaged that

b e c a u s e " f o r some r e a s o n his calendar"; or that he

scheduled willful, simply

intentional, ... a

contumacious time to gather

conduct but a l l the

"[i]t

took

long

information" would be

s o u g h t by greatly

Progressive's by

discovery the

r e q u e s t s ; t h a t he of his claims

prejudiced

dismissal

against

3

2080497 H a r r i s because the s t a t u t o r y l i m i t a t i o n s p e r i o d f o r f i l i n g complaint have had expired; his and claim that the trial court should his not only his

dismissed had

against

Harris and

because to dismiss

Progressive complaint. On
1

moved t o

compel d i s c o v e r y

December requests

24, by

2008, both

Myers

served and

responses Harris,

to and

the the on

discovery trial

Progressive

court 3,

set Myers's postjudgment motion f o r a hearing 2009. Following that hearing, on the trial 11,

February denied Myers

court 2009. which

Myers's timely

postjudgment to the

motion

February Supreme

appealed appeal

Alabama

Court,

t r a n s f e r r e d the Ala. Code 1975.

to this

court pursuant to

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