author: BROWN, Justice. JOHNSTONE, Justice

text:
    GENERAL MOTORS CORPORATION v. Charles W. KILGORE et al.
    1002149.
    Supreme Court of Alabama.
    Dec. 20, 2002.

      Frank E. Lankford, Jr., of Huie, Fer-nambucq & Stewart, L.L.P., Birmingham, for appellant.
    Martin K. Berks of Environmental Attorneys Group, L.L.C., Birmingham, for appellees.
   BROWN, Justice.

General Motors Corporation (“GMC”) appeals from the Colbert Circuit Court’s denial of its motion for a summary judgment in this wrongful-death action. This Court granted GMC’s petition for a permissive appeal pursuant to Rule 5, Ala. R.App. P. We reverse the summary judgment and render a judgment for GMC.

I. Factual Background and Procedural History

On June 11, 1999, Charles W. Kil-gore and Sandra Kilgore Holmes, as coex-ecutors of the estate of their father, William Austin Kilgore (hereinafter referred to as “decedent”), and Kathyrine E. Kil-gore, individually and as the dependent widow of the decedent (hereinafter collectively referred to as the “Kilgores”), filed a wrongful-death action against GMC in the Colbert Circuit Court. The Kilgores alleged that the decedent, who died on June 12, 1997, of mesothelioma as a result of exposure at his workplace to products containing asbestos manufactured by GMC. Specifically, the Kilgores claim that GMC breached its duty under the Alabama Extended Manufacturer’s Liability Doctrine (hereinafter “the AEMLD”) to provide reasonably safe products and that it breached its duty to inform the decedent of the hazards of exposure to asbestos.

The Kilgores’ claims are based on the decedent’s alleged exposure to asbestos products during his employment with Norfolk Southern Railroad Company from 1941 through 1983. The Kilgores maintain that while he was employed with Norfolk Southern the decedent was exposed to asbestos-containing components of locomotives manufactured by GMC.

GMC moved for a summary judgment on the ground that the Kilgores’ claims were preempted by the Federal Locomotive Inspection Act (“FLIA”). The trial court denied the motion for a summary judgment. In accordance with Rule 5(a), Ala. R.App. P., we granted GMC permission to appeal the trial court’s denial of summary judgment.

II. Standard of Review

“We review this case de novo, applying the oft-stated principles governing appellate review of a trial court’s grant or denial of a summary judgment motion:
“ ‘We apply the same standard of review the trial court used in determining whether the evidence presented to the trial court created a genuine issue of material fact. Once a party moving for a summary judgment establishes that no genuine issue of material fact exists, the burden shifts to the non-movant to present substantial evidence creating a genuine issue of material fact. “Substantial evidence” is “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” In reviewing a summary judgment, we view the evidence in the light most favorable to the nonmovant and entertain such reasonable inferences as the jury would have been free to draw.’ ”

American Liberty Ins. Co. v. AmSouth Bank, 825 So.2d 786, 790 (Ala.2002)(quoting Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792 So.2d 369, 372 (Ala.2000) (citations omitted)).

III. The FLIA’s Preemption of the Kilgores’ Claims

GMC contends that the Kilgores’ claims are preempted by federal law. Thus, we must determine whether the FLIA preempts state common-law claims against a locomotive manufacturer. In United Transportation Union v. Foster, 205 F.3d 851 (5th Cir.2000), the United States Court of Appeals for the Fifth Circuit succinctly laid out the general principles of preemption. The court stated:

“The Supremacy Clause of Article VI of the United States Constitution provides Congress with the power to preempt state law. See U.S. Const, art VI, cl. 2. The Supreme Court has instructed federal courts that the historic police powers of the states are not to be superceded by federal law unless ‘that was the clear and manifest purpose of Congress.’ Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947). In Louisiana Public Service Commission v. FCC, 476 U.S. 355, 106 S.Ct. 1890, 90 L.Ed.2d 369 (1986), the Supreme Court detailed the circumstances when a finding of preemption is appropriate:
“ ‘Preemption occurs when Congress, in enacting a federal statute, expresses a clear intent to preempt state law, when there is outright or actual conflict between federal and state law, where compliance with both federal and state law is in effect physically impossible, where there is implicit in federal law a barrier to state regulation, where Congress has legislated comprehensively, thus occupying an entire field of regulation and leaving no room for the states to supplement federal law, or where the state law stands as an obstacle to the accomplishment and execution of the full objectives of Congress. Preemption may result not only from action taken by Congress itself; a federal agency acting within the scope of its congressionally delegated authority may preempt state regulation.’
476 U.S. at 368-69, 106 S.Ct. 1890 (citations omitted). In any case, ‘[t]he critical question is whether Congress intended that federal regulations supersede state law.’ Id. at 369, 106 S.Ct. 1890.”

205 F.3d at 859 (emphasis added).

With regard to the FLIA, we note that “promotion of national uniformity in locomotive-safety regulation was ... one of the primary goals of the FLIA and its predecessor, the Boiler Inspection Act.” Norfolk Southern Ry. v. Denson, 774 So.2d 549, 553 (2000). Moreover, “[i]t has long been settled that Congress intended federal law to occupy the field of locomotive equipment and safety, particularly as it relates to injuries suffered by railroad workers in the course of their employment.” Law v. General Motors Corp., 114 F.3d 908, 910 (9th Cir.1997) (emphasis added).

As this Court noted in Denson, supra, the seminal case establishing the FLIA’s preemptive effect is Napier v. Atlantic Coast Line R.R., 272 U.S. 605, 47 S.Ct. 207, 71 L.Ed. 432 (1926). In Napier, the United States Supreme Court addressed “whether the Boiler Inspection Act ... occupied the field of regulating locomotive equipment used on a highway of interstate commerce, so as to preclude state legislation.” 272 U.S. at 607, 47 S.Ct. 207. Napier involved two appeals for actions challenging a Georgia statute that required that fire boxes on locomotives be equipped with an automatic door and a Wisconsin statute that required locomotives to have a cab curtain. Locomotive carriers sought to enjoin state officials from enforcing a state law that prohibited the use within that state of locomotives not equipped with the prescribed devices. See 272 U.S. at 607-08, 47 S.Ct. 207.

In Napier, the Supreme Court noted that in 1911 when it was originally enacted the Boiler Inspection Act (“BIA”) applied only to locomotive boilers. However, in 1915 the provisions of the BIA were extended to ‘“include the entire locomotive and tender and all parts and appurtenances thereof.’ ” 272 U.S. at 608, 47 S.Ct. 207. In addition, the Supreme Court noted that Congress had given regulatory power over locomotives and their equipment conferred under the BIA to the Interstate Commerce Commission and that the Commission had not imposed any regulations requiring either of the safety devices prescribed by the state statutes. Id. The Court acknowledged that the devices required to be placed on locomotives by the Georgia and Wisconsin statutes were primarily for the safety and health of the locomotive operators, but held that the requirements came within the scope of the authority delegated to the commission. See 272 U.S. at 612-13, 47 S.Ct. 207. The Court held: “The fact that the Commission has not seen fit to exercise its authority to the full extent conferred, has no bearing upon the construction of the act delegating the power.... [T]he Boiler Inspection Act ... was intended to occupy the field.... [Requirements by the states are precluded, however commendable ... their purpose.” 272 U.S. at 613, 47 S.Ct. 207. Ten years later, the Supreme Court again discussed the scope of the BIA, stating that it encompasses “[w]hatever in fact is an integral or essential part of a completed locomotive, and all parts or attachments definitely prescribed by lawful order of the [Secretary of Transportation].” Southern Ry. v. Lunsford, 297 U.S. 398, 402, 56 S.Ct. 504, 80 L.Ed. 740 (1936); see also Oglesby v. Delaware & Hudson Ry., 180 F.3d 458, 461 (2d Cir.1999).

Later, in Law v. General Motors Corp., supra, the United States Court of Appeals for the Ninth Circuit held that state common-law actions against locomotive manufacturers were preempted under the FLIA. In explaining the effect of FLIA preemption on state common-law actions, the court stated:

“This broad preemptive sweep is necessary to maintain uniformity of railroad operating standards across state lines. Locomotives are designed to travel long distances, with most railroad routes wending through interstate commerce. The virtue of uniform national regulation ‘is self-evident: locomotive companies need only concern themselves with one set of equipment regulations and need not be prepared to remove or add equipment as they travel from state to state.’ ... Any state law that undermines this regime is preempted by the BIA.
“... [C]ommon-law claims fall squarely within this preempted field. Apart from compensating victims of accidents for their injuries, the purpose of tort liability is to induce defendants to conform their conduct to a standard of care established by the state.”

Law, 114 F.3d at 910. The court then explained why FLIA preemption applies not only to common-law actions against locomotive operators, but also to common-law actions against locomotive manufacturers:

“A railroad equipment manufacturer found to have negligently designed a braking system ... is expected to modify that system to reduce the risk of injury. If the manufacturer fails to mend its ways, its negligence may be adjudged willful in the next case, prompting a substantial punitive damages award. If each state were to adopt different liability-triggering standards, manufacturers would have to sell locomotives and cars whose equipment could be changed as they crossed state lines, or adhere to the standard set by the most stringent state. Either way, Congress’s goal of uniform, federal railroad regulation would be undermined.
“Appellants nevertheless argue that their claims are not preempted because they are directed against railroad manufacturers, not operators. This distinction — founded on the fact that the BIA speaks only to ‘railroad carrier[s]’ and not manufacturers, — is without significance. The BIA preempts any state action that would affect ‘the design, the construction, and the material’ of locomotives. Imposing tort liability on railroad equipment manufacturers would do just that, by forcing them to conform to design and construction standards imposed by the states. This would transfer the regulatory locus from the Secretary of Transportation to the state courts — a result the BIA was clearly intended to foreclose.”

Law, 114 F.3d at 910-12 (citations and footnote omitted).

A majority of courts have followed the reasoning articulated by the Ninth Circuit Court of Appeals and have also found that the FLIA preempts common-law actions against both locomotive operators and locomotive manufacturers. See Forrester v. American Dieselelectric, Inc., 255 F.3d 1205 (9th Cir.2001) (following the holding in Law, supra, that the BIA preempts product-liability actions against a manufacturer of locomotive cranes); Oglesby v. Delaware & Hudson Ry., 180 F.3d 458 (2d Cir.1999) (the BIA applies to manufacturers of component parts of locomotives and preempts common-law remedies); Springston v. Consolidated Rail Corp., 130 F.3d 241 (6th Cir.1997) (the BIA preempts state-law negligence claims based upon the alleged failure to provide adequate warning devices on trains); see also Roth v. I & M Rail Link, L.L.C., 179 F.Supp.2d 1054 (S.D.Iowa 2001) (state common-law tort claims against manufacturer of locomotive parts are within the field preempted by the FLIA); Bell v. Illinois Central R.R., 236 F.Supp.2d 882 (N.D.Ill.2001)(same); In re: Amtrak “Sunset Limited” Train Crash in Bayou Canot, Alabama, on September 22, 1993, 188 F.Supp.2d 1341 (S.D.Ala.1999) (common-law negligence and design-defect claims are preempted by the BIA); Scheiding v. General Motors Corp., 22 Cal.4th 471, 993 P.2d 996, 93 Cal.Rptr.2d 342 (2000) (product-liability actions against a manufacturer of locomotives containing asbestos materials were preempted under the FLIA); Seaman v. A.P. Green Indus., Inc., 184 Misc.2d 603, 707 N.Y.S.2d 299 (Sup.Ct.2000) (same). But see Lorincie v. Southeastern Pennsylvania Transp. Auth., 34 F.Supp.2d 929 (E.D.Pa.1998) (the BIA does not preempt common-law claims against railroad manufacturers that are not also carriers).

We agree with the reasoning of the Ninth Circuit Court of Appeals and with the supporting authority cited above, and we hold that the FLIA governs the Kil-gores’ state-law causes of action. Thus, the Kilgores’ claims are preempted.

The Kilgores argue that in light of Cipollone v. Liggett Group, Inc., 505 U.S. 504, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992), Medtronic, Inc. v. Lohr, 518 U.S. 470, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996), and Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984), the preemption of the FLIA in the field as set forth in Napier has been narrowed. Cipollone and Medtronic involve two narrowly tailored express statutory preemption clauses and do not involve preemption in an entire field. In Cipollone, the United States Supreme Court examined whether the Federal Cigarette Labeling and Advertising Act preempted state-law tort claims against manufacturers for failing to warn consumers about the hazards of smoking. An earlier version of the statute preempted only state laws respecting “statements” and “advertising.” Id. at 518, 112 S.Ct. 2608. It did not preempt state common-law claims because the preemption clause was narrowly tailored. However, the statute was later revised to include a clause that preempted any “requirement or prohibition” respecting smoking and health. The Supreme Court held that the phrase “requirement or prohibition” “sweeps broadly and suggests no distinction between positive enactments and common law; to the contrary, those words easily encompass obligations that take the form of common-law rules.” 505 U.S. at 521, 112 S.Ct. 2608 (opinion of four Justices), 548-49, 112 S.Ct. 2608 (Scalia, J., agreeing on this point).

Medtronic involved an express preemption provision contained in the Medical Device Amendments of 1976 (“MDA”). Construing the provision according to its terms, the Court found no congressional intent to deny all state common-law negligence actions against manufacturers of medical devices. The Court noted that if Congress did indeed intend such a result, its failure to so state in the MDA was particularly odd because both Houses of Congress were aware of the ongoing product-liability litigation. See 518 U.S. at 491, 116 S.Ct. 2240. “Unlike the statute construed in Cipollone [v. Liggett Group, Inc., 505 U.S. 504, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992),] for instance, pre-emption under the MDA does not arise directly as a result of the enactment of the statute; rather, in most cases a state law will be pre-empted only to the extent that the FDA has promulgated a relevant federal ‘requirement.’ ” 518 U.S. at 496, 116 S.Ct. 2240.

The Kilgores argue that, construed together, Cipollone and Medtronic “establish that even if there is an express statutory provision mandating pre-emption of state law, that provision will be narrowly construed and state law tort actions will not be pre-empted unless they specifically conflict with the federal statute containing the pre-emption provision.” Kilgores’ brief at 37. However, Cipollone and Medtronic involve express preemption clauses. The Supreme Court, on the other hand, has determined that the FLIA occupies the field of locomotive equipment; hence, any “requirements by the states are precluded, however commendable or however different their purpose.” Napier, 272 U.S. at 613, 47 S.Ct. 207. Therefore, in dealing with the FLIA, narrowness is not an issue; the FLIA preempts the entire field. Law, 114 F.3d at 910; Oglesby, 180 F.3d at 460-62; Scheiding, 22 Cal.4th at 483-84, 993 P.2d at 1004, 93 Cal.Rptr.2d at 351.

In addition, the Kilgores, citing Ci-pollone and Medtronic, argue that there is a presumption against preemption when Congress has “legislated ... in a field which the States have traditionally occupied.” Medtronic, 518 U.S. at 485, 116 S.Ct. 2240. This argument is without merit. “Railroads have been subject to comprehensive federal regulation for nearly a century.... There is no comparable history of longstanding state regulation ... of the railroad industry.” United Transp. Union v. Long Island R.R., 455 U.S. 678, 687-88, 102 S.Ct. 1349, 71 L.Ed.2d 547 (1982)(footnote omitted). Thus, “an ‘assumption’ of non-pre-emption is not triggered when the State regulates in an area where there has been a history of significant federal presence.” United States v. Locke, 529 U.S. 89, 108, 120 S.Ct. 1135, 146 L.Ed.2d 69 (2000).

The Kilgores argue that under Silk-wood, supra, even if an entire field is preempted, only state regulation—not state tort law—is preempted. In Sillc-wood, the United States Supreme Court held that the Atomic Energy Act did not preempt state-law tort actions, but its holding was based on the fact that the Court could find no intent in the overall statutory scheme of the Atomic Energy Act to preclude a punitive-damages award under the Act. 464 U.S. at 250-55, 104 S.Ct. 615.

Unlike the Atomic Energy Act, the FLIA “ ‘contains no evidence Congress assumed or intended state remedies for design defects would be preserved.’ ” Scheiding, 22 Cal.4th at 479-80, 993 P.2d at 1001, 93 Cal.Rptr.2d at 348 (quoting Carrillo v. ACF Indus., Inc., 20 Cal.4th 1158, 1168-69, 980 P.2d 386, 393, 86 Cal.Rptr.2d 832, 840 (1999)). In addition, as the Scheiding court pointed out,

“unlike the situation in Silkwood [v. Kerr-McGee Corp., 464 U.S. 238, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984)], the field occupied by the BIA must necessarily extend to state law tort recovery. That is, the BIA cannot remove ‘the design, the construction, and the material of every part of the locomotive and tender and of all appurtenances’ from the purview of state regulation without concomitantly precluding tort actions premised on a defect in such design, construction, or material. Any other result would place regulation of these requirements in the hands of state juries, thereby constraining the Secretary of Transportation’s regulatory authority and undermining the goal of uniformity.”

22 Cal.4th at 479, 993 P.2d at 1001-02, 93 Cal.Rptr.2d at 347 (citations omitted). We agree with the above analysis, and we reject the Kilgores’ claim that the field of the FLIA’s preemption has been narrowed.

The Kilgores next contend that FLIA preemption is proper only if a federal regulation covering the disputed issue exists and, in the absence of such a federal regulation, state-law tort claims are not precluded. We disagree. “[T]he power delegated to the Commission by the [BIA] as amended is a general one. It extends to the design, the construction, and the material of every part of the locomotive and tender and of all appurtenances.” Napier, 272 U.S. at 611, 47 S.Ct. 207. Because the United States Supreme Court has determined that the FLIA occupies the entire field, there is no area within which the states may regulate. See Oglesby, 180 F.3d at 462; Springston, 130 F.3d at 244-45; Scheiding, 22 Cal.4th at 481, 993 P.2d at 1002-03, 93 Cal.Rptr.2d at 349.

The fact that FLIA does not explicitly regulate asbestos does not affect our decision today. Congress intended for the FLIA to occupy the entire field; thus the Secretary of Transportation has the discretion to regulate those areas he or she so chooses. “ ‘ “[T]he will of Congress upon the whole subject is as clearly established by what it had not declared, as by what it has expressed.” ’ ” Scheiding, 22 Cal.4th at 481, 993 P.2d at 1003, 93 Cal.Rptr.2d at 350 (quoting Southern Ry. v. R.R. Com. of Indiana, 236 U.S. 439, 447, 35 S.Ct. 304, 59 L.Ed. 661 (1915)). In fact, the Secretary of Transportation, through the Federal Railroad Administration (“the FRA”), has addressed the asbestos issue and has determined that it requires no regulation at this time.

The Kilgores’ assertion that Napier is limited only to preemption of state legislation regulating locomotives, not common-law tort remedies, is also without merit. See Napier, 272 U.S. at 607, 613, 47 S.Ct. 207. The United States Supreme Court has declined to find such a distinction:

“Our concern is with delimiting areas of conduct which must be free from state regulation if national policy is to be left unhampered. Such regulation can be as effectively exerted through an award of damages as through some form of preventive relief. The obligation to pay compensation can be, indeed is designed to be, a potent method of governing conduct and controlling policy. Even the States’ salutary effort to redress private wrongs or grant compensation for past harm cannot be exerted to regulate activities that are potentially subject to the exclusive federal regulatory scheme.”

San Diego Building Trades Council v. Garmon, 359 U.S. 236, 246-47, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959); see also Law, 114 F.3d at 910-11.

The Kilgores next argue that Congress’s enactment of the Federal Railroad Safety Act, 49 U.S.C. § 20101 et seq., in 1970 altered the preemptive effect of the FLIA. We disagree. This same argument was addressed and rejected in Consolidated Rail Corp. v. Pennsylvania Pub. Utility, 536 F.Supp. 653 (E.D.Penn.1982), aff'd, 696 F.2d 981 (3d Cir.1982), aff'd, 461 U.S. 912, 103 S.Ct. 1888, 77 L.Ed.2d 280 (1983). In Consolidated Rail, the plaintiff railroad company challenged a Pennsylvania statute, contending that the FLIA preempted a state regulation requiring locomotives to have speed recorders and speed indicators. 536 F.Supp. at 654. The state countered with the argument that when Congress enacted the FRA, it “redistributed railroad regulatory authority so that the total-preemption test of the [FLIA] is no longer valid.” 536 F.Supp. at 654. In rejecting the state’s argument and finding Napier controlling, the court noted that Congress could have repealed or recodified the FLIA; instead, it determined that the FLIA was working well and decided to keep it in force without any changes. 536 F.Supp. at 655-56. Therefore, Consolidated Rail negated any implied modification of any part of the FLIA, “including its total occupation of the locomotive-equipment field.” 536 F.Supp. at 656 (footnote omitted).

On appeal, the United States Supreme Court summarily affirmed the Court of Appeals’ decision. See Pennsylvania Public Utility Com. v. Consolidated Rail Corp., 461 U.S. 912, 103 S.Ct. 1888, 77 L.Ed.2d 280 (1983). “Such summary actions ‘should ... be understood ... as applying principles established by prior decisions to the particular facts involved.’ (Mandel v. Bradley (1977) 432 U.S. 173, 176, 97 S.Ct. 2238, 53 L.Ed.2d 199). We thus have strong, if indirect, evidence Napier continues to control with respect to the scope of BIA preemption.” Scheiding, 22 Cal.4th at 478, 993 P.2d at 1000, 93 Cal.Rptr.2d at 346.

Finally, the Kilgores argue that FLIA preemption is not applicable to this case, because in Camp v. Atlantic Coast Line R.R., 251 Ala. 184, 36 So.2d 331 (1948), this Court held that the FLIA covers only mechanical defects and violations of regulations. However, as GMC has pointed out, Camp did not involve the FLIA’s preemption, but rather concerned a railroad’s duty to inspect and maintain a locomotive. 36 So.2d at 335. Therefore, Camp is distinguishable from the instant case.

IV. Conclusion

The Kilgores’ claims are preempted under the FLIA. Therefore, we reverse the trial court’s judgment and render a judgment for GMC.

REVERSED AND JUDGMENT RENDERED.

HOUSTON, SEE, LYONS, HARWOOD, WOODALL, and STUART, JJ., concur.

MOORE, C.J., and JOHNSTONE, J., dissent.

JOHNSTONE, Justice

(dissenting).

In 1970, long after the United States Supreme Court decided Napier v. Atlantic Coast Line R.R., 272 U.S. 605, 47 S.Ct. 207, 71 L.Ed. 432 (1926), Congress adopted 49 U.S.C.S. § 20106 as part of the Federal Railroad Safety Act. That statutory provision, as last amended, reads:

“Laws, regulations, and orders related to railroad safety shall be nationally uniform to the extent practicable. A State may adopt or continue in force a law, regulation, or order related to railroad safety until the Secretary of Transportation prescribes a regulation or issues an order covering the subject matter of the State requirement. A State may adopt or continue in force an additional or more stringent law, regulation, or order related to railroad safety when the law, regulation, or order—
“(1) is necessary to eliminate or reduce an essentially local safety hazard;
“(2) is not incompatible with a law, regulation, or order of the United States Government; and
“(3) does not unreasonably burden interstate commerce.” (Emphasis added.)

The Secretary of Transportation has not “prescribe[d] a regulation or issue[d] an order covering” the use of asbestos in locomotives. Therefore, federal law does not preempt this field, and this Court may recognize a claim against a locomotive manufacturer for tortiously including asbestos in the locomotives manufactured by that manufacturer.

      . The AEMLD is a doctrine of products liability that imposes on manufacturers "the duty to design and manufacture a product that is reasonably safe for its intended purpose and use.” Townsend v. General Motors Corp., 642 So.2d 411, 415 (Ala.1994).

      . The FLIA, 49 U.S.C. §§ 20701-20903, originally pertained only to locomotive boilers and was referred to as the Boiler Inspection Act. The law was later amended to apply to all locomotive parts. Napier v. Atlantic Coast Line R.R., 272 U.S. 605, 608, 47 S.Ct. 207, 71 L.Ed. 432 (1926). Some courts still refer to the FLIA as the Boiler Inspection Act or the Locomotive Boiler Inspection Act. See, e.g., Law v. General Motors Corp., 114 F.3d 908 (9th Cir.1997).

      . The Secretary of Transportation now holds this regulatory power. The Secretary, acting through the Federal Railroad Administration, is responsible for the administration and enforcement of railroad-safety laws, including the FLIA. See 49 U.S.C. § 103, § 20103(a); 49C.F.R. § 1.49(c)(5) (2001).

      . In reviewing this argument, this Court notes the Supreme Court’s warning that
      "[i]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals [and state courts applying federal law] should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.”

        Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989).

      . Enacted in 1965, the Federal Cigarette Labeling and Advertising Act was subsequently incorporated into the Public Health Cigarette Smoking Act of 1969 and codified at 15 U.S.C. § 1331 etseq.

      . In a 1996 report to Congress, the FRA stated:
      ''[The] FRA has reviewed ... the known health and safety effects of asbestos exposure, and contacted ... locomotive manufacturers regarding the ... use of asbestos in the construction of locomotives ... [T]here is no evidence that the presence of asbestos poses a problem to humans or the environment. [The] FRA does not feel that further action with respect to the presence of asbestos in locomotive cabs is warranted at this time.”
      Federal Railroad Administration, U.S. Dep’t of Transportation, Rep. to Congress, Locomotive Crashworthiness and Cab Working Conditions (Sept.1996) at 10-12. Moreover, the FRA "recommend[ed] no action be taken on the issue of asbestos in locomotives” and it “could find no evidence of asbestos being a health problem for crews of older locomotives.” Id. at 12-9.


source: Caselaw Access Project

author: JOHNSTONE, Justice. LYONS, Justice,

license: Public Domain

text:
    David BROWN v. The POOL DEPOT, INC.
    1011032.
    Supreme Court of Alabama.
    Dec. 20, 2002.
    Stan Brobston of Brobston & Brobston, P.C., Bessemer, for appellant.
    James A. Kee, Jr., Angela C. Shields, and Olivia S. Matuszak of Kee & Selby, L.L.P., Birmingham, for appellee.
   JOHNSTONE, Justice.

The plaintiff David Brown appeals the order of the trial court compelling him to arbitrate his tort claims against the defendant The Pool Depot, Inc. Brown argues that, because Pool Depot, a foreign corporation, was not qualified to do business in Alabama at the time Pool Depot contracted to sell and to install an aboveground pool at Brown’s Alabama residence, Alabama’s door-closing statute, § 10-2B-15.02, Ala. Code 1975, voids the pool contract and bars Pool Depot from enforcing the pool contract and its arbitration provision. We agree.

On February 29, 2000, a representative of Pool Depot, a Georgia corporation, approached Brown, an Alabama resident, to solicit Brown’s purchase of an above-ground pool to be installed by Pool Depot at Brown’s Alabama residence. On that day Brown executed a contract for the purchase and installation of the above-ground pool. The contract reads in part:

“The Pool Depot Incorporated Of Georgia

“Date: 2-29-00

“Over 20,000 Pools Installed

“Florida License, Tennessee License, Virginia License, Maryland License

“120 Interstate North Parkway East * Suite 426 * Atlanta, Georgia 30339 (Local) 770-951-1831 * (Out of Area) 800-788-9832 * www.pooldepot.net

“Purchasers affidavit: I (We) Attest that I (We) have Legal Ownership of the listed real property below:

“Section B) Pool Size & Type

“[x]24'Round [ ]27'Round [ ]Oval

“[ ]A-frame ladder (to be used without a deck)

“[x]In-pool ladder (to be used only with a deck)

“Section C)....

“Section D)....

“Section E) Completely Installed: A leveling of plain dirt is included in the contract price. Any dig over 2 feet purchaser agrees to pay $8 per inch directly to the installation crew at the time of installation. The 2-foot dig does not include digging down into level ground to bury the pool, hauling in dirt, or any type of rock removal. These require additional charges and should purchaser [Brown] require dealer [Pool Depot] to perform such services, purchaser agrees to pay these additional charges to the dealer. Installation normally takes one or more days. Installation crew will supply approximately 2 tons of sand and concrete blocks (if deemed necessary by the installation crew). Installers use various types of equipment depending on the difficulty of installation.

“Section F) Completion: Dealer [Pool Depot] and Purchaser [Brown] agree that the pool is completed when the pool is assembled. Dealer will not be expected to wait until purchaser’s pool is filled with water to receive payment. (It has been our experience that this can take 2 or 3 days.) All monies due at completion are to be paid directly to the installation crew fk at the commencement of work, the balance upon completion of work) unless specified otherwise. Dealer cannot be held responsible for installation if not installed by dealer.” (Emphasis added.)

The contract also includes an arbitration provision. The contract states further that the purchaser can cancel the contract within three days of execution.

On March 16, 2002, Brown telephoned Pool Depot to cancel the contract. Thereafter, Pool Depot sent Brown a document entitled “Official Document, Lien Notice, Illegal Cancellation,” which reads, in part:

“What is Illegal Cancellation? According to Section K, Number 15, T(we) understand agree that no Verbal, Telephone, or Facsimile transmitted cancellation of this contract can be accepted and that no penalty or fee may be assessed by dealer if proper cancellation notification is given as defined by the 3-Day “Buyers Right to Cancel”. I(we) agree that this agreement cannot be cancelled for any reason after the 3-Day “Buyer’s Right to Cancel” has expired unless the entire purchase price is paid to dealer.’ YOU DID NOT PROVIDE A LEGAL CANCELLATION NOTIFICATION AS DEFINED BY THE 3-DAY ‘BUYERS RIGHT TO CANCEL’, THEREFORE YOU CANCELLED ILLEGALLY. You now owe us the Full Purchase Price.
“If you do not work out this problem by calling 1-800-788-1831, Ext 1. (ask for Mr. Clark), within 10 days we may, at our option, file the attached lien against your personal residence and/or any other personal property that you may own, including but not limited to your personal residence, checking or savings account, retirement account, car, furniture, etc., that will accrue interest at l-and-1/2% per month, (18% per year), until the lien is paid in full....
“If you choose not to work this problem out with us after we file the lien and disagree with our legal position, we will be glad to go to Binding Arbitration as contained on the front of the Pool Contract you signed (See Pool Contract Section G Binding Arbitration Agreement). Neither you nor us can file a lawsuit as, according to the Arbitration agreement, the only option is to go to Binding Arbitration in Cobb County, Georgia. If we lose, (we have never lost an arbitration hearing), we will release the lien. If we win, the arbitrator will order you to pay us.
“Most consumers are surprised [ (this emphasis added) ] to find out in a legal proceeding, such as an arbitration hearing, the written Pool Contract always rules the outcome. What a salesperson or company representative allegedly says has no bearing on how an arbitrator rules....
“Sincerely,
“Mr. Clark
“P.S. Let’s be reasonable. Why pay the FULL PURCHASE PRICE OR OUR ATTORNEY FEES (under Section N, ‘Attorney Fees: Purchaser agrees to pay Pool Depot’s attorney fees necessary to defend any disputes and/or allegations arising in any manner relating to this agreement’), and your ATTORNEY FEES and still not have a pool to swim in?
“P.S. We also TAPE RECORDED the sale. Remember President Clinton paid Paula Jones approximately $900,000 and got fined an additional $85,000 by the judge for testifying different from what was on the tape. The new Independent Counsel, after Kenneth Starr, also has the option to indict President Clinton for ‘PERJURY’ after he leaves office. I think you will agree ‘PERJURY’ is a serious offense.”

Attached to the “Illegal Cancellation” document was another document purporting to be a lien by Pool Depot against Brown’s home for $9,295, the purchase price for the pool minus the $200 deposit Brown had already paid.

After receiving the “Illegal Cancellation” document and the purported lien, Brown sued Pool Depot for fraudulent inducement and “tortious attempt to collect a debt by the threat of criminal prosecution.” (Complaint, p. 3, C. 4.) The complaint alleges that “Defendant does not have a Certificate of Authority to do business in Alabama and is not license[d] to do business in this State ... [, and,] [therefore, the contract signed by the parties is void.” (Id.) Brown attached to his complaint a copy of the pool contract.

Pool Depot moved to compel Brown to arbitrate his claims pursuant to the arbitration provision in the pool contract. Brown opposed the motion on the ground that the contract and its arbitration provision were void under Alabama’s door-closing statute because Pool Depot had not qualified to do business in Alabama until some months after the execution of the Brown pool contract.

Pool Depot responded that, although it was not qualified to do business in Alabama when it entered the Brown pool contract, Pool Depot, as a business engaged in interstate commerce, was protected by the Commerce Clause of the United States Constitution from the operation of Alabama’s door-closing statute to void the Brown pool contract. Pool Depot submitted as evidentiary support for this argument an affidavit from Pool Depot vice president Frank Loureire stating that the components of the aboveground pools are manufactured in other states, are shipped to Georgia for assembly, and are shipped to their final destination for installation. Loureire stated that Pool Depot “is a national company which does business nationwide.” Loureire stated further that all monies paid to Pool Depot were deposited in an account in Atlanta, Georgia. While Loureire expressly denied that Pool Depot had ever had any offices in Alabama, he did not deny that it had agents in Alabama.

This appeal requires us to decide whether the business Pool Depot contracted to do in Alabama was localized in Alabama so as to constitute intrastate activity that incurred the governance of Alabama’s door-closing statute, which would, in that case, void the Brown pool contract and bar Pool Depot from enforcing the contract and its arbitration provision. Alabama’s door-closing statute, § 10-2B-15.02(a), Ala.Code 1975, provides:

“A foreign corporation transacting business in this state without a certificate of authority ... may not maintain a proceeding in this state without a certificate of authority. All contracts or agreements made or entered into in this state by foreign corporations prior to obtaining a certificate of authority to transact business in this state shall be held void at the action of the foreign corporation or by any person claiming through or under the foreign corporation by virtue of the contract or agreement; but nothing in this section shall abrogate the equitable rule that he who seeks equity must do equity.”

Addressing whether a nonqualified foreign corporation may enforce its Alabama contracts, Alabama courts have said:

“It has been held that a foreign corporation doing business in this state without qualifying cannot use our courts to enforce its contracts. Continental Telephone Corp. v. Weaver, 410 F.2d 1196 (5th Cir.1969). Alabama Const, art. XII, § 232, and §§ 10-2A-247 and 40-14-4, Code 1975 [now codified as 10-2B-15.02, Ala.Code 1975] prohibit a nonqualified foreign corporation from enforcing a contract made in Alabama if it is doing business in Alabama. Where the contract is to be performed in Alabama, regardless of where entered into, and in the performance of the contract the foreign corporation must engage in business in this state, our courts refuse to aid the nonqualified corporation in the enforcement of such contract. Sanjay, Inc. v. Duncan Construction Co., 445 So.2d 876 (Ala.1983). A nonqualified foreign corporation is not barred from enforcing its contracts, however, when it is engaged solely in interstate commerce. Kentucky Galvanizing Co. v. Continental Casualty Co., 335 So.2d 649 (Ala.1976).”

Competitive Edge, Inc. v. Tony Moore Buick-GMC, Inc., 490 So.2d 1242, 1244-45 (Ala.Civ.App.1986) (emphasis added). A “foreign corporation [may] not compel arbitration pursuant to an arbitration clause in a contract [if] the entire contract [is] unenforceable and invalid as a result of the foreign corporation’s failure to qualify to do business in Alabama.” Alabama Catalog Sales v. Harris, 794 So.2d 312, 315 (Ala.2000).

'While Pool Depot argues that its performance of the Brown pool contract involved interstate commerce and that this involvement saved Pool Depot from the operation of Alabama’s door-closing statute to void the contract and its arbitration provision, this Court recently said in Community Care of America of Alabama, Inc. v. Davis, 850 So.2d 283, 287 (Ala.2002):

“The test of the enforceability of the arbitration clause ... is not ... whether the transaction substantially affects interstate commerce — which is the proper analysis in cases not involving § 10-2B-15.02, see Sisters of the Visitation v. Cochran Plastering Co., 775 So.2d 759 (Ala.2000)—but [is] ‘whether the main or primary purpose of the [transaction] constitutes an interstate or intrastate activity.’ Competitive Edge, Inc. v. Tony Moore Buick-GMC, Inc., 490 So.2d 1242, 1244-45 (Ala.Civ.App.1986). See also SAR Mfg. Co. v. Dumas Bros. Mfg. Co., 526 F.2d 1283, 1286 (5th Cir.1976) (applying Alabama law); Camaro [Trading Co. v. Nissei Sangyo America, Ltd., 628 So.2d 463 (Ala.1993)].” (Some emphasis original; some emphasis added.)

A nonqualified foreign corporation’s “ ‘establishing] a continuing presence in the state over and above the mere shipping of commodities between the states’ is intrastate activity.” Community Care, 850 So.2d at 287 (quoting Wise v. Grumman Credit Corp., 603 So.2d 952, 953 (Ala.1992)). The United States Supreme Court has held that “a state’s forum closing statute does not unduly burden interstate commerce when the foreign corporation has ‘ “localized its business” ’ in the state and when it is not entering the state ‘ “to contribute to or to conclude a unitary interstate transaction.” ’ ” S & H Contractors, Inc. v. A.J. Taft Coal Co., 906 F.2d 1507, 1511 (11th Cir.1990) (quoting Allenberg Cotton Co. v. Pittman, 419 U.S. 20, 32-33, 95 S.Ct. 260, 42 L.Ed.2d 195 (1974) (quoting in turn Union Brokerage Co. v. Jensen, 322 U.S. 202, 210, 64 S.Ct. 967, 88 L.Ed. 1227 (1944))) (emphasis added).

“Our courts have held that transactions in Alabama by a nonqualified foreign corporation involving no more than a sale, transportation, and delivery of materials into this state are acts of interstate commerce to which the laws of Alabama are not applicable. Loudonville Milling Co. v. Davis, 251 Ala. 459, 37 So.2d 659 (1948). Mere business solicitations and incidents relative to such solicitations do not constitute transaction of business by a foreign corporation within the state of Alabama for purposes of the statutory and constitutional provisions at issue in this case. Swicegood v. Century Factors, Inc., 280 Ala. 37, 189 So.2d 776 (1966).”

Competitive Edge v. Tony Moore Buick-GMC, 490 So.2d 1242, 1244 (Ala.Civ.App.1986) (emphasis added).

‘It is evident that, had the transaction in question involved no more than the sale and delivery of the machinery by the plaintiff to the defendant in Alabama, it would have been an act of interstate commerce, to which the laws of Alabama are not and could not be applicable. But the contract was not for the sale of machinery. It was an entire contract for transporting and assembling (that is, building into a structure) certain materials on the defendant’s premises. This included, as set forth in the complaint, and replication both labor and materials; and the fruition of the contract was not the delivery of an article of commerce to the defendant, but the erection of an improvement on its premises for a gross consideration. Beard’s Case, 71 Ala. 60.’ ”

Computaflor Co. v. N.L. Blaum Constr. Co., 289 Ala. 65, 68, 265 So.2d 850, 852 (1972) (quoting American Amusement Co. v. East Lake Chutes Co., 174 Ala. 526, 56 So. 961 (1911)) (emphasis added).

“One area of business is quite clearly defined as intrastate, rather than interstate, activity. This Court has previously held that ‘labor is not an article of commerce, nor is the agreement to supply it, nor the execution of the agreement, an act of commerce.’ Computaflor v. N.L. Blaum Const. Co., 289 Ala. 65, 68, 265 So.2d 850, 852 (1972), citing American Amusement Co. v. East Lake Chutes Co., 174 Ala. 526, 530, 56 So. 961, 963 (1911). A construction contract supplying both material and labor is an example of the type of contract that is considered intrastate. See Sanjay, Inc. v. Duncan Const. Co., 445 So.2d 876, 879 (Ala.1983) (sale, delivery, and supply of labor and management to construct prefabricated building is intrastate activity); Computaflor, supra, (sale, delivery, and labor to construct a gymnasium floor are intrastate activities); Cadden-Allen, Inc. v. Trans-Lux News Sign Corp., 254 Ala. 400, 48 So.2d 428 (1950) (sale, installation, maintenance, repair for a period of one year, and removal of signs are intrastate activities); Calvert Iron Works, Inc. v. Algernon Blair, Inc., 284 Ala. 655, 227 So.2d 424 (1969) (sale, delivery, and erection of steel are intrastate activities).”

Green Tree Acceptance, Inc. v. Blalock, 525 So.2d 1366, 1370-71 (Ala.1988)(emphasis added). An isolated contract by an unqualified foreign corporation to do localized intrastate business within Alabama is subject to Alabama’s door-closing statute even though that contract may require the use of materials and equipment shipped into Alabama from out of state. See Green Tree Acceptance, supra; Sanjay, Inc. v. Duncan Constr. Co., 445 So.2d 876 (Ala.1983); Computerflor, supra; and Calvert Iron Works, Inc. v. Algernon Blair, Inc., 284 Ala. 655, 277 So.2d 424 (1969).

In the case now before us, the activity by Pool Depot under the Brown pool contract involved more than the mere solicitation of business here and more than the mere delivery of items sold. Pool Depot sent a representative to Alabama to solicit customers like Brown. Pool Depot then contracted to sell, to deliver, to assemble, and to install a 24-foot-diameter round aboveground pool at Brown’s Alabama residence for a total cost of $9,495. Pool Depot agreed to supply the materials and to furnish the labor for the assembly and installation of the pool in Alabama. The installation crew would work in Alabama “one or more days.” Upon completion of installation of the pool, Pool Depot was to be paid in Alabama. Pool Depot’s entire performance under the contract was to occur in Alabama. “ ‘[Tjhe fruition of the contract was not the delivery of an article of commerce [i.e., pool components] to [Brown], but the erection of an improvement on [his] premises for a gross consideration.’ ” Computaflor, 289 Ala. at 68, 265 So.2d at 852 (citing Beard’s Case, 71 Ala. 60). Thus, in contracting to sell, to deliver, to assemble, and to install an aboveground pool at Brown’s residence in Alabama, Pool Depot engaged in intrastate activity in Alabama when it was not qualified to do so. Consequently, Alabama’s door-closing statute operates against Pool Depot to void the pool contract and its arbitration provision.

Brown’s suing Pool Depot for fraud and tortious attempt to collect a debt and opposing arbitration of these claims is not an unlawful attempt to “accept the benefits and avoid the burdens or limitations of a contract,” Georgia Power Co. v. Partin, 727 So.2d 2, 5 (Ala.1998) (quotation marks and citations omitted). Brown does not seek any benefit whatsoever under the contract, which Brown contends is void.

The trial court erred in ordering Brown to arbitrate his claims against Pool Depot. Therefore, we reverse the judgment of the trial court and remand this cause for the trial court to vacate its order for arbitration and to conduct further proceedings in this case.

REVERSED AND REMANDED.

MOORE, C.J., and HOUSTON and WOODALL, JJ., concur.

LYONS, J., concurs specially.

LYONS, Justice,

concurring specially.

I concur fully in the majority opinion. I write specially to address Pool Depot’s reliance upon Wallace Construction Co. v. Industrial Boiler Co., 470 So.2d 1151 (Ala.1985). In Stewart Machine & Engineering Co. v. Checkers Drive In Restaurants of North America, Inc., 575 So.2d 1072, 1074-75 (Ala.1991), this Court described Wallace Construction as holding that

“in a contract for the sale of a complex boiler system that required the seller to supply labor for assembly, installation, adjustment, and activation of the boiler, as well as personnel training, these activities were both ‘necessary and incidental to the interstate sale of the boiler itself; thus, the contract was held not to involve intrastate activity.”

Then the Court in Stewart Machine held that the erection of a prefabricated building constituted intrastate activity, noting as follows:

“The construction and labor required to complete performance of the contract was substantial enough that it was not merely incidental to the sale of the structure. Although much of the construction work could be accomplished only at the site, the work was of a very general nature that could have been handled by almost any competent contractor and did not require the special expertise of Stewart. It is this element that distinguishes the Stewart-Checkers contract from the contract in Wallace Construction Co., supra.”

575 So.2d at 1075.

Pool Depot argues that “[t]he only difference between the present case, and Wallace Construction, is that the item being sold in Wallace Construction was a boiler; while in this case, it is an above-ground pool.” I disagree. This Court has recognized that the sale, delivery, and supply of labor and management to construct a prefabricated building is intrastate activity. See Sanjay, Inc. v. Duncan Constr. Co., 445 So.2d 876, 879 (Ala.1983). I find the rationale for distinguishing Wallace Construction employed in Stewart Machine persuasive. This case falls under the heading of erection of a prefabricated product, not the installation of a complex piece of machinery, for which the provision of labor to install it became a reasonable and appropriate incident of the sale.


author: STUART, Justice. SEE, Justice

text:
    The HARTFORD FIRE INSURANCE COMPANY v. Mary K. EPTING and Mary G. Slye.
    1011211.
    Supreme Court of Alabama.
    Dec. 20, 2002.
    Thomas B. Albritton of Albrittons, Clifton, Alverson, Moody & Bowden, P.C., Andalusia, for appellant.
    Steven L. Nicholas of Olen, Nicholas & Copeland, P.C., Mobile, for appellees.
   STUART, Justice.

AFFIRMED; NO OPINION.

See Rule 53(a)(1), (a)(2)(E), and (a)(2)(F), Ala. R.App. P.; § 6-6-370, Ala. Code 1975; and Southern Guar. Ins. Co. v. Jones, 279 Ala. 577, 188 So.2d 537 (1966).

MOORE, C.J., and HOUSTON, LYONS, BROWN, JOHNSTONE, HARWOOD, and WOODALL, JJ., concur.

SEE, J., dissents.

SEE, Justice

(dissenting).

I respectfully dissent from the majority’s affirmance of the trial court’s judgment against the Hartford Fire Insurance Company (“Hartford”) in this garnishment action. The trial court entered its judgment, in part, because it found that a garnishment proceeding is an ancillary proceeding to an underlying action. While a garnishment proceeding is an ancillary proceeding as to the parties to the underlying action, Hartford was not a party to the underlying action; therefore, Hartford correctly argues that any garnishment proceeding involving it constituted a new action as to Hartford, and was therefore barred under § 6-5-440, Ala.Code 1975, by Hartford’s federal action for declaratory relief, which was pending when the garnishment proceeding was filed.

Mary K. Epting and Mary G. Slye brought a garnishment action to collect the proceeds of an insurance policy issued to Abacus Software Group, Inc., in satisfaction of a judgment entered against Sankar-an Balasubramawium (“Bala”), a former Abacus employee. The trial court entered a summary judgment for Epting and Slye, and Hartford appeals.

Hartford provided business automobile insurance to Abacus. Abacus is an information technology company that provides technical staff to support software projects at client companies. Abacus works closely with a sister company, Sierra Systems Asia Pvt. Ltd., to recruit software analysts in India to fill positions with Abacus clients across the United States. Abacus assigned Bala, a citizen of India, to work on a software project at the CIBA Specialty Chemicals plant in McIntosh, Alabama.

While working at CIBA, Bala lived at the Warren Inn apartments in Mobile and drove an automobile he rented from Alamo Rent-A-Car. On February 17,1998, Bala was driving south on Schillingers Road in Mobile. He turned left onto Thomas Drive, but failed to clear the oncoming northbound traffic lane before Epting’s car crashed into his. Both Epting and her passenger, Slye, were injured in the accident. Abacus promptly notified its insurance agent of Bala’s wreck, and the agent notified Hartford on February 24, 1998.

Three days after the wreck, Bala completed his work on the CIBA project and moved to an assignment in Cedar Rapids, Iowa. He subsequently moved from Iowa to Cleveland, Ohio, and then to Colorado. In December 1998, Abacus informed Bala that it no longer had any work for him in this country and suggested that he might want to return to India.

On May 25, 1999, Epting and Slye sued Abacus and Bala, as an Abacus employee, alleging negligence. Epting and Slye were unable to serve Bala in Mobile, and on October 1, 1999, the trial court denied their motion to serve Bala by publication. Epting and Slye served him in this action on December 18,1999.

Shortly after the accident, a claims adjuster from Hartford’s New England office spoke with Bala about the incident. After that conversation, Hartford paid Alamo $2,700 to settle Alamo’s claim against Bala for damage to the rental car. Hartford then transferred the accident file to its Florida office, where a different Hartford claims adjustor took over management of the claim. On July 17, 1998, the adjuster took a tape-recorded statement over the telephone from Bala, in Cleveland, Ohio, but made no further attempts to contact Bala until after Epting and Slye had served Bala in connection with their negligence action.

On January 3, 2000, Hartford learned from Epting and Slye’s attorney that Bala had been served. Hartford then attempted to contact Bala in Colorado, where Ept-ing and Slye had served him. Hartford’s claims adjuster made numerous telephone calls to Bala’s last known address and left messages on an answering machine. Bala did not return any of the calls. On January 10, 2000, Hartford’s claims adjuster asked Hartford’s special investigative unit in Denver to try to reach Bala. On January 13, 2000, Hartford retained an attorney on Bala’s behalf so that Bala would not be held in default. Hartford also attempted to reach Bala by contacting Sierra in India.

On February 4, 2000, Hartford’s claims adjuster asked Hartford’s special investigative unit in Orlando, Florida, to help locate Bala. Hartford did not reach Bala, and Bala did not respond to any messages left on an answering machine. On March 9, 2000, Hartford sent a reservation-of-rights letter to Bala at his last known address in Colorado and to his last known address in India. Hartford received a signature on a receipt indicating that Bala had received the letter in Colorado.

Hartford’s Federal Action

On May 31, 2000, Hartford sought a judgment in federal court declaring that because Bala had failed to cooperate in his defense, Hartford had no obligation under the policy to defend or indemnify Bala on any claims arising from his accident with Epting and Slye. On June 21, 2000, Epting and Slye moved to intervene as defendants, and answered Hartford’s complaint. On August 4, 2000, Hartford moved for a default judgment against Bala. On October 17, 2000, Epting and Slye moved to dismiss the declaratory-judgment action.

On October 19, 2000, the federal court stayed the declaratory-judgment action pending the entry of a final order in the underlying state action. On January 2, 2001, Epting and Slye again moved to dismiss the declaratory-judgment action. On January 26, 2001, Hartford amended its federal complaint to reflect that Abacus had been found not liable in Epting and Slye’s state action because, at the time of the accident, Bala was acting outside the scope of his employment. Hartford’s amended complaint alleged that it was entitled to relief because Bala had failed to cooperate and because the insurance policy covered only Abacus employees who were acting within the scope of their employment.

In the parallel state action, Epting and Slye had filed writs of garnishment against Hartford. On July 6, 2001, Hartford moved to have the federal court stay the ongoing state-court garnishment proceedings. The federal court denied the motion.

On October 4, 2001, Hartford moved to lift the stay in the declaratory-judgment action. On December 14, 2001, the federal court lifted the stay and found that Bala had been properly served but that he had failed to answer the complaint. The federal district court entered a default judgment against Bala, finding that Hartford had no duty to defend or to indemnify him.

The Underlying State Action

Meanwhile, on June 2, 2000, Hartford had moved to intervene in Epting and Slye’s state action against Bala. The trial court granted Hartford’s motion. Epting and Slye moved the trial court to reconsider its order allowing Hartford to intervene, arguing that Hartford was obstructing discovery and that Hartford, the “intervenor, [had] pending in the United States District Court for the Southern District of Alabama a complaint which will determine the issues sought to be determined in this litigation. Consequently, if intervenor is allowed to file a complaint in this action, intervenor would be the plaintiff in a prior pending action in violation of Ala.Code § 6-5-440 (1975).” The trial court denied Epting and Slye’s motion to remove Hartford from the case, but ordered Hartford to choose between remaining a party to the state action or continuing to maintain its own declaratory-judgment action against Bala. Hartford chose to continue its federal declaratory-judgment action against Bala. Epting and Slye’s state court case against Bala proceeded to trial and, on September 19, 2000, the trial court entered judgments on a jury verdict in favor of Epting for $125,000 and in favor of Slye for $300,000.

On January 12 and February 1, 2001, Epting and Slye served a state “Process of Garnishment” on Hartford to recover the damages awarded in their state case. Hartford moved in state court to dismiss the writs of garnishment, arguing that it was not indebted to the parties, and arguing that the insurance-coverage issue was the subject of a pending federal declaratory-judgment action. Epting and Slye moved for a summary judgment on the writs of garnishment. Hartford moved again to dismiss the writs of garnishment. On December 4, 2001, the trial court entered a summary judgment on the garnishment in favor of Epting and Slye, finding that the federal declaratory-judgment action was not a prior-pending action, that the garnishment action was ancillary to Epting and Slye’s action against Bala, and that Hartford had a duty to defend and to indemnify Bala under the Abacus business automobile insurance policy. On December 26, Hartford moved pursuant to Rule 59(e) and Rule 60, Ala. R. Civ. P., for the trial court to vacate its garnishment judgment, citing the federal court order issued on December 14, 2001, indicating that Hartford had no duty to defend or to indemnify Bala. The trial court denied Hartford’s motion. Hartford appealed.

Hartford argues on appeal that the trial court erred by not dismissing Epting and Slye’s writs of garnishment under § 6-5-440, Ala.Code 1975, because, it argues, its federal declaratory-judgment action against Bala was a prior-pending action that barred Epting and Slye’s subsequent state garnishment action on the same issue. In its summary-judgment order in favor of Epting and Slye on the writs of garnishment, the trial court found:

“Hartford’s motion to dismiss the garnishment in this court was denied upon the rationale that the garnishment action was ancillary and auxiliary to the underlying suit which was pending long before the filing of the declaratory judgment action, as well as being the suit where personal service of process on Bala had been obtained, unlike the case with the federal court petition where, it is believed and supported by Hartford’s claim manager Holloway, the certified mail directed to Bala was signed by someone else and Hartford still has no service on Bala.[] Olson v. Field Enterprises Educational Corp., [45 Ala.App. 438,] 231 So.2d 763 [(1970)]; Orrox Corp. v. Orr, 364 So.2d 1170 (Ala.1978); cf. Wheelwright Trucking Co. v. Dorsey Trailers, Inc., 158 F.Supp.2d 1298 (M.D.Ala.1/10/01).”

The majority of this Court affirms the trial court’s order, pursuant to Rule 53(a)(1), (a)(2)(E), and (a)(2)(F), Ala. R.App. P.

I believe that the trial court erred when it found “the underlying suit ... was pending long before the filing of the declaratory judgment action.... ” It is true that in Rice v. State Farm Fire & Cas. Co., 628 So.2d 582, 583 (Ala.1993), this Court, quoting Rush v. Simpson, 373 So.2d 1105, 1107 (Ala.Civ.App.1979), held that “a post-judgment garnishment proceeding ‘is an ancillary proceeding seeking satisfaction of a prior judgment, and not an original civil suit.’ ” Hartford argues, however, that those cases in which this Court called garnishment “ancillary” are distinguishable from this case, because, it says, they address the ancillary nature of the proceeding as to the defendant whose assets are garnished and who was a party to the underlying proceeding, and they do not hold that garnishment is ancillary as to a nonparty. I agree.

This Court has recognized that in a garnishment proceeding, the interests of the judgment debtor and the garnishee may be adverse. See Franklin Life Ins. Co. v. Peoples Bank & Trust Co., 594 So.2d 67 (Ala.1992). Because the garnishment action is treated as an ancillary proceeding, the judgment debtor may be made a party to the action and is “barred from later asserting in another jurisdiction that [the garnishee] has no right to withhold his wages” or any other property. Orrox Corp. v. Orr, 364 So.2d 1170, 1172 (Ala.1978).

Hartford argues that whether the garnishment action is “ancillary” as to Epting and Slye is not at issue in this case, and that the only issue that relates to Hartford is whether the prior action was pending as to Hartford. It was not.

This Court has held that the debtor’s insurance company has no interest in an underlying proceeding against the insured. In United States Fidelity & Guaranty Co. v. Adams, 485 So.2d 720 (Ala.1986), USF & G sought to intervene in an action brought by Allen Adams against Elk River Development and Highland Rim, the insured, in order to submit the action to the jury on special verdicts with interrogatories. USF & G stood in that case in the same position as Hartford stands in this one. This Court held that “USF & G does not have an interest in the transaction which is the subject of this lawsuit, but has an interest contingent upon the Adamses’ recovery of a judgment in their suit against Elk River” and, therefore, that it could not intervene as a matter of right. 485 So.2d at 722. This Court approved of the trial court’s finding that “ ‘[USF & G] may, by subsequent litigation, determine its liability in the event of the Plaintiffs’ recovery.’ ” 485 So.2d at 721.

This Court has also held that a plaintiff, acting as a judgment creditor, may not add a liability insurer as an additional defendant in an underlying action, but “that Alabama law requires the plaintiff to bring a separate action against the insurance carrier.” Wiggins v. State Farm Fire & Cas. Co., 686 So.2d 218, 218-19 (Ala.1996). In Wiggins, Melissa Wiggins had reached a pro tanto settlement with a fraternity and had obtained a $100,000 default judgment against a University of Alabama student who had assaulted her at a fraternity party. Wiggins moved to add the student’s insurer, State Farm, as a defendant and to apply the proceeds of the insurance contract to satisfy the default judgment. This Court quoted the reasoning in Maness v. Alabama Farm Bureau Mutual Casualty Insurance Co., 416 So.2d 979 (Ala.1982), “ ‘[o]nce an injured party has recovered a judgment against the insured, the injured party may compel the insurer to pay the judgment. The injured party, however, can bring an action against the insurer only after he has recovered a judgment against the insured....’” 686 So.2d at 220, and held that Wiggins could not add State Farm as a defendant to her action against the student.

In this case, no action was pending against Hartford until after Epting and Slye served Hartford with writs of garnishment. Moreover, Epting and Slye could not have made Hartford a party to the underlying action at any time before they obtained a judgment against Bala, which accrued only after Hartford had initiated its federal declaratory-judgment action. An action could not have been pending as to Hartford when Hartford could not even have been made a party to the action.

In this action, the trial court erred when it found “the underlying suit ... was pending long before the filing of the declaratory judgment action....” No action was pending against Hartford until Epting and Slye served Hartford with writs of garnishment.

I would reverse the trial court’s summary judgment against Hartford and remand with instructions to dismiss the garnishment proceeding in favor of the prior-pending federal declaratory-judgment action.

I,therefore, dissent.

      . Bala listed "CIBA-GIEGY,” not Abacus, as his “employer” on the "Resident Credit Application” he completed as part of his application for an apartment at the Warren Inn.

      . Epting and Slye amended their complaint on February 16, 2000, to assert a wanton and/or negligent supervision claim against Abacus. Hartford provided Abacus with an attorney pursuant to the automobile insurance policy. Abacus moved for a summary judgment, arguing that it was not responsible for Bala's actions when he was going to and from work. The trial court granted Abacus’s motion, dismissing all claims against Abacus. On appeal, this Court affirmed the trial court’s judgment without an opinion. Epting v. Abacus Software Group, Inc., [Ms. 1000299, August 31, 2001] 829 So.2d 198 (Ala.2001)(table). Abacus is no longer a party to this action.

      .Shortly before Hartford paid Alamo for the damage to the rental car, a claims adjuster for Alamo’s insurance company stated in a June 26, 1998, memorandum: “Our efforts to contact the renter [Bala] and obtain any insurance information has produced negative results. As such, it appears that Alamo Rent-A-Car will be forced to provide primary coverage in this matter.”

      . See 28 U.S.C. § 1332; 28 U.S.C. § 2201.

      . The Hartford Fire Ins. Co. v. Sankaran Balasubramawiam [No. 00-0495-P-C] (S.D.Ala.2001).

      . The trial court's summary judgment in favor of Epting and Slye created a procedural quandary for Hartford in this appeal. Hartford had moved before trial to intervene in Epting and Slye’s state-court action. Epting and Slye argued below that Hartford should not be allowed to intervene because, they asserted, Hartford’s federal declaratory-judgment action was a prior-pending action. In response to this argument, the trial court compelled Hartford to choose between continuing the federal declaratory-judgment action and intervening in the state-court action. When Epting and Slye filed their writs of garnishment, Hartford argued that the state-court garnishment action should be dismissed because the federal declaratory-judgment action was a prior-pending action. Epting and Slye apparently did not respond to that argument. Nothing in the record indicates that Epting and Slye argued in the garnishment action that Hartford’s federal declaratory-judgment action was not a prior-pending action. Ept-ing and Slye, therefore, apparently argue for the first time on appeal that the federal declaratory-judgment action was not a prior-pending action.
      Hartford argues in its brief on appeal that this Court's "prior-pending action” reasoning should apply in a writ-of-garnishment action. Hartford notes:
      "[Epting and Slye] recognized this when they moved the trial court to reconsider its order allowing The Hartford to intervene in the State Court Action. (C. 384.) In fact, in that Motion, [Epting and Slye] conceded not only that the Hartford had filed a 'prior pending action’ in Federal Court, but that the Hartford's participation in the State Court proceeding would violate 6-5-440.”
      (Hartford’s Brief, p. 20 n. 3.)

        In effect, Hartford argues that Epting and Slye have taken contradictory positions in this litigation and that they are estopped from arguing on appeal that Hartford's federal declaratory-judgment action is not a prior-pending action. "The doctrine of judicial estoppel ‘applies to preclude a party from assuming a position in a legal proceeding inconsistent with one previously asserted.’ ” Jinright v. Paulk, 758 So.2d 553, 555 (Ala.2000). Hartford reiterates this argument in its reply brief to this Court when it states that for Epting and Slye, "[t]o take the position on appeal that the declaratory-judgment action is not the proper venue to resolve the coverage issue is not only inconsistent with their earlier position, but is also contrary to the principles enunciated in this Court’s cases dealing with this issue [garnishment].”

      . The record before this Court does not allow this Court to reach an independent conclusion about the service of process on Bala in any of the actions discussed in this opinion. The federal court order entering a declaratory judgment for Hartford stated that the "Respondent [Bala was] ... served with the summons and complaint.” Epting and Slye intervened as defendants in the federal action. Whatever arguments Epting and Slye made in that action about the effectiveness of service in the federal declaratory-judgment action, they failed to persuade the federal court that heard the case. Epting and Slye have presented no argument as to why this Court should doubt the federal district court's conclusion.

      . The court in Wheelwright Trucking Co. v. Dorsey Trailers, Inc., 158 F.Supp.2d 1298 (M.D.Ala.2001), found that under Alabama law a garnishment brought by a judgment creditor against a judgment debtor’s insurance company under § 6-6-370, § 27-33-1, and § 27-23-2, Ala.Code 1975, is a direct action, not a nonremovable ancillary proceeding. 158 F.Supp.2d at 1301. The Wheelwright court remanded the action to state court because the insurance company, "Liberty [Mutual Insurance Company, was] a diversity-destroying in-state citizen for purposes of this civil action,” not because a garnishment action was an ancillaiy proceeding that could not be removed to federal court. Id.