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In Roblero v. Cox Pool of the Southeast, 2013 Ala. Civ. App. LEXIS 137 (Ala. Civ. App. June 21, 2013) the Alabama Court of Civil Appeals affirmed a trial court’s finding that an employer was entitled to subrogation of UIM/UM benefits paid to an injured worker. On its face, this decision appears to upset the longstanding rule, discussed in Bunkley v. Bunkley Air Conditioning, 688 So. 2d 827 (Ala. Civ. App. 1996) that Employers are not entitled to subrogation of UIM/UM benefits. However, upon further examination, this decision is more about the requirements of appellate procedure than overturning established law.
At the trial court, the Plaintiff properly argued that the employer was not entitled to subrogation of his UM benefits, based on the authority of Bunkley. However, the trial court rejected his argument, reasoning it did not agree with the holding in Bunkley, and refused to apply that rule. On appeal, however, the Plaintiff failed to argue that the trial court erred in this holding, and instead limited his arguments on appeal to the issue of whether the trial court “improperly grouped the 'credit' which § 25-5-11(a) provides for compensation benefits with the ‘subrogation” allowed against medical expenses.” The Court of Appeals rejected that contention, noting that the medical benefits alone exceeded the $30,000.00 UM benefits, and therefore the employer was entitled to the entirety of the credit.
The Court noted that the trial court’s decision contradicted their decision in Bunkley. However, the Plaintiff failed to present that argument to the Court in his brief, despite presenting it to the trial court, and the Court found it was therefore waived.
For their part, the employer argued that the Court of Appeals should overturn Bunkley. However, the Court noted the trial court agreed with the employer’s position, and therefore the employer did not have an adverse decision to appeal. The Court further noted that its decision in Bunkley was based on a Supreme Court precedent in State Farm Mutual Automobile Insurance Co. v. Cahoon, 287 Ala. 462, 252 So. 2d 619 (1971), and the Court of Civil Appeals did not have authority to overturn that decision.
This case is ultimately a lesson in preserving arguments for appeal. It appears that the Court of Civil Appeals would have reversed the trial court, had the Plaintiff properly presented that argument to the Court. This decision does not change the general rule that an employer or carrier is not entitled to subrogation of UM/UIM benefits in workers’ compensation cases.