(concurring specially).

Because I dissented in Hogan v. State Farm Mut. Auto. Ins. Co., 730 So.2d 1157 (Ala. 1998), I share Justice Houston’s dissatisfaction with that case; however, I also agree with Justice See’s special concurrence in which he notes that the issue was not properly preserved.

(concurring specially).

I concur in the majority’s no-opinion affirmance. I write specially to state my agreement with Justice Houston that Hogan v. State Farm Mutual Automobile Insurance Co., 730 So.2d 1157 (Ala. 1998), was wrongly decided; however, because I do not believe that issue was properly preserved for our review in this case, I concur to affirm the judgment below.

AFFIRMED. NO OPINION.

See Hogan v. State Farm Mut. Auto. Ins. Co., 730 So.2d 1157 (Ala. 1998); Fountain v. State, 586 So.2d 277, 282 (Ala.Crim.App. 1991); BIC Corp. v. Bean, 669 So.2d 840, 844 (Ala. 1995); State Farm Mut. Auto. Ins. Co. v. Wallace, 743 So.2d 448 (Ala. 1999); Alfa Mut. Ins. Co. v. Beard, 597 So.2d 664 (Ala. 1992); Kennedy v. Polar-BEK & Baker Wildwood Partnership, 682 So.2d 443 (Ala. 1996); Atlanta & Birmingham A.L. Ry. v. Brown, 158 Ala. 607, 47 So. 73 (1908); Rule 53(a)(1) and (a)(2)(F), Ala. R.App. P.

(dissenting).

Hogan v. State Farm Mut. Auto. Ins. Co., 730 So.2d 1157 (Ala. 1998), was wrongly decided. The only Justices still on the Court who voted on that opinion — Justice See and Justice Lyons — dissented. I did not vote in Hogan; however, I did dissent in State Farm Mut. Auto. Ins. Co. v. Jeffers, 686 So.2d 248 (Ala. 1996), an opinion on which Hogan relied.

Hogan and Jeffers were wrongly decided; they should be overruled.