author: CRAWLEY, Judge. THOMPSON, Judge,

text:
    Debra L. BRITT v. SHELBY COUNTY HEALTH CARE AUTHORITY d/b/a Shelby Medical Center.
    2991083.
    Court of Civil Appeals of Alabama.
    April 13, 2001.
    Rehearing Denied June 1, 2001.

      James M. Patton of Patton & Veigas, P.C., Birmingham, for appellant.
    Mark W. Lee and Dorothy A. Powell of Parsons, Lee & Juliano, P.C., Birmingham; and Michael J. Cohan of Webb & Eley, P.C., Montgomery, for appellee.
   CRAWLEY, Judge.

In 1995, Debra L. Britt was employed as a respiratory technician at Shelby Medical Center (“the Hospital”). She worked weekend double shifts — 16 hours on Saturdays and 16 hours on Sundays, with an 8-hour break between shifts. At the end of her second shift, on Sunday night, February 26, 1995, Britt was driving home from work when she fell asleep. She was seriously injured when her car crossed the median and overturned.

Britt sued the Hospital, alleging both a tort claim based on negligence and a workers’ compensation claim. On the negligence claim, the circuit court entered a summary judgment for the Hospital. On the workers’ compensation claim, the court conducted a bench trial and then entered a judgment for the Hospital. The court’s judgment is accompanied by the following order:

“This matter came on for trial on April 5, 2000. Plaintiff originally pled two alternative theories of recovery. The first was a traditional tort theory of recovery based upon negligence. The Court entered Summary Judgment in favor of Defendant on the tort claim on October 7, 1998. Plaintiffs second claim is under the statutory scheme provided by the [Workers’] Compensation Act of Alabama.
' “Plaintiff regularly worked two (2) sixteen (16) hour shifts each weekend, sep- ‘ arated by eight (8) hours. She claims this work schedule caused fatigue which led to her injuries. On February 26, 1995, Plaintiff reported to work at approximately 6:30 a.m. and left work at approximately 11:00 p.m. While traveling home in her personal automobile, she was involved in a single car accident for which she now claims [workers’] compensation benefits. The Court finds that Plaintiff fell asleep while driving home thereby causing her automobile accident.
“It is well established in Alabama that accidents and injuries which occur while an employee is traveling to or from their place of employment are not compensa-ble because they do not arise out of, nor do they occur during the course of employment. Winn-Dixie Stores, Inc. v. Smallwood, 516 So.2d 716 (Ala.Civ.App.1987)., Although the specific issue raised in this case has not been previously addressed [in Alabama], Alabama courts have addressed several other exceptions to the general rule. See Minor v. Alabama Specialties, Inc., 598 So.2d. 938 (Ala.Civ.App.1992) (employer may be liable where the employer provides transportation to or from work); Tucker v. Die-Matic Tool Co., 652 So.2d 263 (Ala.Civ.App.1994) (employer may be liable where the employee is still ‘on duty’ and acting in furtherance of the employer’s interest, also known as the ‘dual purpose doctrine’); Terry v. NTN-Bower Corp., 615 So.2d 629 (Ala.Civ.App.1992) (employer may be liable if the employer has control over the instrumentality and thé accident occurs in an area adjacent to the workplace).
' “In this case it is undisputed that the Plaintiff was in her personal car, that she was not still on duty or acting in furtherance of [the Hospital’s] interest, and that the accident did not occur in an area where [the Hospital] exerted any control over Plaintiff. When Plaintiff accepted employment with [the Hospital] as a Respiratory Technician, she knew that she would be required to work on Saturdays and Sundays, each day consisting of a 16 hour shift. She had worked these shifts for approximately one year before the accident.
“The parties cite various cases from other jurisdictions as persuasive authority, including Swanson v. Fairway Foods, 489 N.W.2d 722, 723 (Minn.1989), and Hed v. Brockway Glass Co., 309 Minn. 73, 244 N.W.2d 28 (1976). See Brunson Milling Co. v. Grimes, 267 Ala. 395, 103 So.2d 315 (1958). As in the Swanson case, the facts in this case are tragic, but under the current statutory scheme and present case law, this Court finds that there is no basis for compens-ability under the Alabama [Workers’] Compensation Act.”

Britt appealed to this court. We affirm the judgment as to the workers’ compensation claim, but reverse the judgment as to the negligence claim and remand the cause for further proceedings.

I. The Workers’ Compensation Claim

Britt testified that she thought the length and conditions of her shift at work caused the fatigue that led to her falling asleep on the drive home from work. She described her job duties as long, gruelling, and stressful. At trial, Britt introduced the deposition testimony of two expert witnesses who stated that, because of her unusually long shifts and the short interval between shifts, she was at a higher risk for fatigue and the effects of sleep deprivation than other employees in the general population. Both experts said that sleep deprivation was a factor in causing Britt’s accident. Britt also introduced several articles and studies from the National Sleep Foundation and the National Traffic Safety Administration finding a correlation between extended shift hours and fatigue-related automobile accidents.

Both experts gave their opinion that Britt’s risk of fatigue while driving was not minimized by the fact that she had weekdays off or that she had been working the same shifts for a year. They stated that the human body cannot “bank sleep,” or properly adjust to a lack of sleep that recurs two out of every seven days.

Generally, an accident that occurs while a worker is traveling to or from work is not considered to arise out of and in the course of employment, for purposes of workers’ compensation law. See Hughes v. Decatur Gen. Hosp., 514 So.2d 935 (Ala.1987); Process Equip., Inc. v. Quinn, 701 So.2d 29 (Ala.Civ.App.1997). This principle is known as the “going-and-coming rule.” See A. Larson, Larson’s Workers’ Compensation Law § 13.01 (2000). As the trial court’s order points out, Alabama has recognized several exceptions to the rule, none of which applies here. Britt was not paid for her travel time to and from work or reimbursed for her travel expenses; she was not acting in furtherance of any job duties at the time of her accident; and she was not performing any act on behalf of the Hospital during the drive home.

Although no Alabama decisions address the issue presented here, the decisions of Minnesota courts, construing the Minnesota workers’ compensation laws, are persuasive, because our compensation act was patterned after the Minnesota act. See Brunson Milling Co. v. Grimes, 267 Ala. 395, 103 So.2d 315 (1958). As the trial court’s order indicates, two Minnesota decisions are instructive. See Swanson v. Fairway Foods, 439 N.W.2d 722 (Minn.1989), and Hed v. Brockway Glass Co., 309 Minn. 73, 244 N.W.2d 28 (1976).

In Hed, the worker was a 50-year-old bricklayer who worked 9 hours and 15 minutes laying 12-pound firebrick in the hot floor of a glass furnace. The normal workday for a bricklayer was eight hours. At the end of the day, a co-employee, noticing that the worker looked exhausted, offered to drive the worker home or to follow him home, but the worker said he was fine. The worker left in his car; about a mile from the plant, the worker fell asleep at the wheel. He was injured when his car left the roadway and hit a tree. The Minnesota Supreme Court affirmed an award of workers’ compensation benefits, stating that one could reasonably infer from the evidence that “the employee lost consciousness before losing control of his automobile and that it was caused directly by fatigue resulting from his employment.” 309 Minn, at 77, 244 N.W.2d at 30.

In Swanson, the worker was a part-time manual laborer at a food warehouse. He normally worked the night shift from 9:00 p.m. to 5:00 a.m., and he was on call seven days a week. The worker worked his normal hours for two nights and was then off for 24 hours. The next day, the worker arose at 6:00 a.m., did farm chores, and worked until 8:00 p.m. remodeling a building in which his wife’s catering business was located. At 9:00 p.m., the worker was called to work at the food warehouse. He arrived at 9:50 p.m.' and performed his usual duties until 5:00 a.m. the next morning. On the drive home, he fell asleep at the wheel and was killed when his car traveled down an embankment and hit a tree.

Relying on Hed, the administrative law judge awarded workers’ compensation dependency benefits. Concluding that Hed did not apply, however, the Minnesota Workers’ Compensation Court of Appeals reversed. The Minnesota Supreme Court affirmed that reversal, explaining that neither the “special-errand” nor the “special-hazard” exception to the “going-and-coming” rule applied.

The court stated that “[t]he special-errand rule is invoked when employees with regular hours [are] required to work overtime under circumstances that [make] the travel to and from work more hazardous.” Swanson, 439 N.W.2d at 724 (citing A. Larson, The Law of Workmen’s Compensation, §§ 16.00, 16.14 (1985)). The court explained that the “special-errand” exception did not apply in Swanson because the worker “did not work regular hours.” 439 N.W.2d at 724.

The court stated that “[t]he [special-hazard] exception is applicable only if by virtue of the employment the employee is exposed to a hazard which originates on the employment premises, is a part of the working environment, or if it peculiarly exposes the employee to an external hazard which subjects the employee to a greater personal risk than one has when pursuing ordinary personal affairs.” 439 N.W.2d at 724 (quoting Gibberd v. Control Data Corp., 424 N.W.2d 776, 783 (Minn.1988)). The special-hazard exception did not apply in Swanson because the hazard to which the worker was exposed — the conditions leading to fatigue — did not originate in the working environment but in the worker’s off-duty hours. See Gene P. Bowen, Wherein Lies the Duty? Determining Employer Liability for the Actions of Fatigued Employees Commuting from Work, 42 Wayne L.Rev.2091, 2097-98 (1994). Of the two Minnesota cases, Hed is factually more similar to the case before us, but — because it contains little or no analysis of the legal issue — it is not very persuasive.

The facts of a New York case are very similar to the case at hand. In Deland v. Hutchings Psychiatric Center, 203 A.D.2d 776, 611 N.Y.S.2d 44 (1994), the administrative law judge awarded workers’ compensation benefits to a nurse who fell asleep while driving home after working double shifts at a psychiatric hospital. The New York appellate court stated the rule that “where there is a reasonable nexus between the risk to which an employee is exposed and the employment, recovery has been upheld.” 203 A.D.2d at 778, 611 N.Y.S.2d at 46. The court then recounted the conclusions of the lower tribunals:

“The Workers’ Compensation Law Judge held that there was a nexus established between the accident, claimant’s falling asleep at the wheel of her car, and her working 28 out of 40 hours during the July 4, 1992 weekend. She concluded that having to drive home after such an exhausting schedule constitutes a reasonably anticipated hazard. The [Workers’ Compensation] Board concurred, finding that the employer had called on claimant to work overtime and that her falling asleep was a direct result of the unusually long hours, and that this constituted an accidental injury arising out of and in the course of her employment.”

Deland, 203 A.D.2d at 777-78, 611 N.Y.S.2d at 46.

Noting a “substantial body of authority from other states and from the Federal courts ... [as well as Professor Larson] which hold that such injuries are compen-sable,” 203 A.D.2d at 778, 611 N.Y.S.2d at 46, the New York court determined that the record contained substantial evidence “to support the finding of nexus between claimant’s employment and her injuries.” Id. The court, however, remanded the cause to the Compensation Board for more specific findings that would distinguish it from a contrary Board decision on similar facts.

At least three other jurisdictions — the District of Columbia, Missouri, and New Jersey — have allowed workers’ compensation benefits for injuries suffered by an exhausted driver who falls asleep on the drive home from work. See Van Devander v. Heller Elec. Co., 405 F.2d 1108 (D.C.Cir.1968) (heavy equipment installer who worked 26 hours without sleep); Snowbarger v. Tri-County Elec. Coop., 793 S.W.2d 348 (Mo.1990) (employee who worked 86 out of 100 hours cleaning up after an ice storm); Nemchick v. Thatcher Glass Mfg. Co., 203 N.J.Super. 137, 495 A.2d 1372 (1985) (supervisor who had been on duty for 27 hours without sleep). All three decisions are based on a variant of the “special-hazard” exception to the going-and-coming rule: that an employer who schedules a worker for unusually long work hours has made an extraordinary demand on the worker that exposes him to a foreseeable risk of a fatigue-related automobile accident.

To be compensable under the Alabama Workers’ Compensation Act (“the Act”), a worker’s injury must “arise out of and in the course of’ his employment. See § 25-5-31, Ala.Code 1975. See also § 25-5-1(8) and (9), Ala.Code 1975. “The phrases ‘arising out of and ‘in the course of are not synonymous.” Kewish v. Alabama Home Builders Self Insurers Fund, 664 So.2d 917, 922 (Ala.Civ.App.1995). They are “separate prerequisites, both of which must be satisfied in order for the injured employee to recover.” Grider v. McKenzie, 659 So.2d 612, 615 (Ala.Civ.App.1994).

The decisions from other jurisdictions allowing recovery under workers’ compensation laws appear to focus only on the “arising out of’ part of the compensability test. They emphasize either a special hazard or a special risk to which the worker’s employment foreseeably subjected him, or a nexus between his employment and his injury, which makes his injury compensa-ble. That analysis is an appraisal of causation. See, e.g., Van Devander v. Heller Elec. Co., 405 F.2d 1108, 1110 (D.C.Cir. 1968) (“[wjhere the hazard of the journey ... ‘arises’ out of and in the course of extraordinary demands of employment there is a discernible causal relationship upon which to justify the administrative tribunal in attributing the hazard to the employment and hence responsibility for the resultant injury”). See generally Dunlop Tire & Rubber Co. v. Pettus, 623 So.2d 313 (Ala.Civ.App.1993) (stating that the phrase “arising out of’ refers to the causal connection between the injury and the employment).

The decisions allowing benefits ignore the second part of the compensability test: whether the accident producing the injury was “in the course of’ the worker’s employment. That inquiry is not one of causation, but of whether the worker, at the time and place of the accident and under the circumstances producing the injury, was “reasonably fulfilling the duties of his employment or engaged in some incident to it.” See Massey v. United States Steel Corp., 264 Ala. 227, 230, 86 So.2d 375, 378 (1955).

We have found decisions from three jurisdictions—Michigan, Oregon, and Texas— that deny workers’ compensation benefits for injuries suffered by an exhausted driver who falls asleep on the drive home from work. See Pappas v. Sports Servs., Inc., 68 Mich.App. 423, 243 N.W.2d 10 (1976) (cook who normally worked an eight-hour day not subjected to a special risk by working seven hours’ overtime); Krushwitz v. McDonald’s Restaurants of Oregon, Inc., 323 Or. 520, 919 P.2d 465 (1996) (high-school student who worked the all-night shift after being in school all day not entitled to benefits because his accident did not occur in the course of his employment); Price v. American Home Assurance Co., 562 S.W.2d 7 (Tex.Civ.App.1977) (waitress who worked 25 out of 28 hours not entitled to benefits because, even if her fatigue arose out of her employment, her accident did not occur in the course of her employment). The Oregon and Texas decisions were based on the workers’ failure to establish that their injuries occurred “in the course of’ their employment.

As the circuit court’s order states, Britt presented no evidence indicating that on her drive home from work she was acting under the control of the Hospital or in furtherance of the Hospital’s interests. Even assuming that Britt proved a causal relation between her employment and her injury (an issue we expressly do not decide), she thereby established only one of the two requirements for compensability under the Act—that her injury “arose out of’ her employment. She failed to establish, however, that her injury occurred “in the course of’ her employment. Like the courts of Oregon and Texas, we hold that because the worker failed to prove both requirements of the test for compensability her injuries are not compensable under the Act.

II. The Tort Claim

The Hospital argues that, if Britt has a remedy for her injuries, it is not via a tort claim against the Hospital. The Hospital insists that the exclusivity provisions of the Act bar Britt’s tort claim because, it says, any duty the Hospital owed to Britt stems from their employment relationship. According to the Hospital, that relationship limits Britt’s claim—if she has a claim—to one for workers’ compensation benefits. We reject the Hospital’s argument. Whether the exclusivity provisions of the Act bar a worker’s tort claim is determined by whether the worker’s injuries are covered by the Act. See 6 A. Larson and L. Larson, Larson’s Workers’ Compensation Law § 100.01[4] at 100-8 (2000) (“[t]he operative fact in establishing exclusiveness is that of actual coverage”).

“The exclusiveness rule relieves the employer not only of common law tort liability, but also of statutory liability under all state and federal statutes, as well as of liability in contract and in admiralty, for an injury covered by the compensation act”

6 A. Larson and L. Larson, Larson’s Workers’ Compensation Law § 100.03[1] at 100-11 (2000) (emphasis added).

In Gentry v. Swann Chemical Co., 284 Ala. 313, 174 So. 530 (1937), abrogation on other grounds recognized by Ex parte Harris, 590 So.2d 285 (Ala.1991), the worker, who had sustained injuries from his on-the-job exposure to trisodium phosphate, sued his employer, alleging negligence, breach of a duty to provide a safe place to work, willfulness and wantonness, and a violation of the Defective Machinery Act. The employer defended on the basis that the worker’s injury was an occupational disease for which the employer argued that it had no liability — either under the Act or at common law. The supreme court stated:

“It is not a matter of doubt, that the Workmen’s Compensation Act, in general, was intended in the nature of a substitute between master and servant who elect to come within its provisions, for actions of tort — for personal injuries at common law — and under the state Employer’s Liability Act, or other statute giving the employee a right of action.
“However, in light of the provisions of section 13, of the Constitution of 1901, ‘That all courts shall be open; that every person for any injury done him, in his lands, goods, person, or reputation, shall have a remedy by due process of law^ it cannot be said that for an injury done a person, not within the provisions of the Workmen’s Compensation Act, that it was the legislative intent by the enactment of said law, to deny such person a remedy, if under the common law or the Employer’s Liability Act, or other statute he was entitled to maintain an action therefor.”

Gentry, 234 Ala. at 318-19, 174 So. at 534. The court held that Gentry’s injury was neither an occupational disease nor the result of a job-related “accident,” that it was not covered by the Act, and that Gentry was, therefore, left “to his remedy at common law.” 234 Ala. at 319, 174 So. at 534.

In Lowman v. Piedmont Executive Shirt Manufacturing Co., 547 So.2d 90 (Ala.1989), the Alabama Supreme Court held that the exclusivity provisions of the Act extend only to job-related injuries. Explaining that coverage under the Act is restricted to injuries arising out of and in the course of employment, the court stated:

“It logically follows that if an accident is not compensable because it is outside the coverage of the Act, then the exclusive remedy provisions of the Act are also inapplicable. Thus, an employer is protected from tort liability only as to injuries expressly covered by the language of the Act.”

Lowman, 547 So.2d at 93. Accord Krushwitz v. McDonald’s Restaurants of Oregon, Inc., 323 Or. 520, 919 P.2d 465 (1996).

In Krushwitz, the Oregon Supreme Court concluded that an employee who was killed in an automobile accident after he fell asleep while driving home from work did not suffer a “compensable injury” as that term was defined by the Oregon Workers’ Compensation Law. The court held, however, that because the employee’s death did not occur in the course of his employment, the exclusivity provisions of the Oregon workers’ compensation statute did not preclude a wrongful-death action by his mother against the employer.

Professor Larson notes a distinction “between an injury which does not come within the fundamental coverage provisions of the act, and an injury which is in itself covered but for which, under the facts of the particular case, no compensation is payable.” 6 A. Larson and L. Larson, Larson’s Workers’ Compensation Law § 100.04 at 100-28 (2000). Hughes v. Decatur General Hospital, 514 So.2d 935 (Ala.1987), presents an example of “an injury which is in itself covered but for which, under the facts of the particular case, no compensation is payable.”

In Hughes, the court held that the ad-ministratrix of the estate of a worker whose death arose out of and in the course of her employment, but who left no dependents, was not entitled to bring a wrongful death action against the worker’s employer, because the Act had provided the worker’s exclusive remedy. The administratrix had argued that because there was no recovery under the Act, the Act did not provide the exclusive remedy. The court disagreed, stating:

“In Slagle v. Reynolds Metals Co., 344 So.2d 1216 (Ala.1977), this court held that Alabama’s Workmen’s Compensation Act provides the exclusive remedy against an employer for the death of an employee when the fatal injury arose out of or in the course of employment.”

514 So.2d at 938 (emphasis added).

The exclusivity provisions of the Act do not bar Britt’s tort claim against the Hospital because, as we have held in Part I, Britt’s injury did not occur in the course of her employment. Because Britt’s injury does not come within the fundamental coverage provisions of the Act, the Act’s exclusive-remedy provisions are, likewise, inapplicable to her.

III. Conclusion

The circuit court’s judgment as to the workers’ compensation claim is affirmed. The summary judgment on the negligence claim is reversed, and the cause is remanded.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

YATES, P.J., and MURDOCK, J., concur.

THOMPSON and PITTMAN, JJ., concur in part and dissent in part.

THOMPSON, Judge,

concurring in part and dissenting in part.

I concur in the main opinion’s determination that Britt’s injury is not compensa-ble under Alabama’s Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975. However, I conclude that the trial court properly entered a summary judgment in favor of the Hospital on Britt’s claim of negligence.

Britt alleged that the Hospital had a “duty to use reasonable care to protect [her] from hazardous conditions at work, and otherwise to provide a reasonably safe place to work.” I interpret Britt’s theory of recovery to state a cause of action under § 25-1-1, Ala.Code 1975. Section 25-1-1 establishes an employer’s duty to provide an employee with a safe workplace; it also allows an employee a cause of action against a co-employee. Powell v. United States Fid. & Guar. Co., 646 So.2d 637 (Ala.1994).

“Every employer shall furnish employment which shall be reasonably safe for the employees engaged therein and shall furnish and use safety devices and safeguards and shall adopt and use methods and procedures reasonably adequate to render such employment and the places where the employment is performed reasonably safe for his employees and others who are not trespassers, and he shall do everything reasonably necessary to protect the life, health and safety of his employees and others who are not trespassers.”

§ 25 — 1—1(a), Ala.Code 1975.

The exclusivity provisions of the Workers’ Compensation Act do not preclude an employee’s cause of action under § 25-1-1. Powell v. United States Fid. & Guar. Co., supra. “[H]owever, the exclusivity provisions have limited this cause of action under § 25-1-1 to only those instances where the breach of this duty is willful or intentional.” Powell v. United States Fid. & Guar. Co., 646 So.2d at 639.

Further, in Ex parte McCartney Construction Co., 720 So.2d 910 (Ala.1998), the worker sued his employer (McCartney Construction) and a co-employee, alleging in his complaint that the two defendants had intentionally and willfully failed to provide him a safe work environment, in contravention of § 25-1-1, Ala.Code 1975. See also § 25-5-11, Ala.Code 1975. McCartney Construction moved to dismiss the claim against it, arguing that the “exclusive-remedy” provisions of the Workers’ Compensation Act barred the plaintiffs recovery. See §§ 25-5-52 and 25-5-53, Ala. Code 1975. The trial court denied that motion. McCartney Construction petitioned for a writ of mandamus directing the trial court to enter an order dismissing it from the action. Our supreme court granted the petition for the writ of mandamus, holding that McCartney Construction was entitled to be dismissed from the action. In so holding, our supreme court stated:

“In Murdock v. Steel Processing Services, Inc., 581 So.2d 846, 848 (Ala.1991), this Court held:
“ ‘The intent of the Alabama Legislature in adopting the exclusivity provisions of the Workmen’s Compensation Act was “to provide complete immunity to employers and limited immunity to officers, directors, agents, servants or employees of the same employer ... from civil liability for all causes of action except those based on willful conduct.” § 25-5-14. The Legislature added: “[S]uch immunity is an essential aspect of the workers’ compensation scheme. The legislature hereby expressly reaffirms its intent, as set forth in section 25-5-53, as amended herein, and sections 25-5-144 and 25-5-194, regarding the exclusivity of the rights and remedies of an injured employee, except as provided herein.” Section 25-5-14.’
“And, in Padgett v. Neptune Water Meter Co., 585 So.2d 900, 901 (Ala.1991), we held:
“ ‘In the recent case of Johnson v. Asphalt Hot Mix, 565 So.2d 219 (Ala.1990), this Court stated that § 25-5-11, Ala.Code 1975, does not provide an action against an employer. Section 25-5-ll(a) provides that actions may be maintained against those parties that may be jointly liable with the employer, provided that if the other party is a coemployee, then his actions, in order to give rise to liability, must be willful. Section 25-5-11 does not affect the immunity provided by §§ 25-5-52 and 25-5-53.’
“See, also, Powell v. United States Fidelity & Guaranty Co., 646 So.2d 637 (Ala.1994).”

Ex parte McCartney Constr. Co., 720 So.2d at 911.

Britt alleged that the Hospital negligently failed to provide her with safe working conditions. I conclude that the trial court properly entered the summary judgment in favor of the Hospital. Therefore, I must respectfully dissent from that portion of the main opinion reversing the summary judgment entered in favor of the Hospital on Britt’s claim of negligence.

PITTMAN, J., concurs.

      . Britt sued Baptist Health System, Inc., d/b/a Shelby Medical Center and Shelby County Health Care Authority, d/b/a Shelby Medical Center. By order of May 9, 1997, the circuit court determined that Shelby County Health Care Authority, d/b/a Shelby Medical Center, was "the sole proper defendant in this litigation.”


source: Caselaw Access Project

author: BROWN, Justice. HOUSTON, Justice WOODALL, Justice LYONS, Justice JOHNSTONE, Justice

license: Public Domain

text:
    Ex parte SHELBY COUNTY HEALTH CARE AUTHORITY d/b/a Shelby Medical Center. (In re Debra L. Britt v. Shelby County Health Care Authority d/b/a Shelby Medical Center).
    1001647.
    Supreme Court of Alabama.
    Aug. 30, 2002.
    Rehearing Denied Nov. 1, 2002.

      Mark W. Lee and Dorothy A. Powell of Parsons, Lee & Juliano, P.C., Birmingham, for petitioner.
    James M. Patton of Patton & Veigas, P.C., Birmingham, for respondent.
   BROWN, Justice.

Shelby County Health Care Authority d/b/a Shelby Medical Center (hereinafter referred to as “the Hospital”) appeals from the judgment of the Court of Civil Appeals reversing in part the Shelby Circuit Court’s judgment in its favor. See Britt v. Shelby County Health Care Auth., 850 So.2d 322 (Ala.Civ.App.2001). This Court granted the Hospital’s petition for certio-rari review to decide a question of first impression: whether an employee who falls asleep and is injured in an automobile accident while driving her personal vehicle home after having worked two 16-hour shifts with an 8-hour break between shifts can sustain a workers’ compensation claim or negligence and wantonness claims against her employer. We affirm in part and reverse in part.

Facts and Procedural History

In 1995, Debra L. Britt was employed at the Hospital as a respiratory technician; she worked weekend double shifts — 16 hours on Saturday and 16 hours on Sunday, with an 8-hour break between shifts. On February 26, 1995, Britt completed her second 16-hour shift for the weekend. Because Britt had complained of a bad headache that evening, some of her friends from work offered to drive her home. Britt refused their offers and attempted to drive herself home. As- she was driving, Britt fell asleep and was seriously injured when her car crossed the median and overturned.

On February 24, 1997, Britt filed an action against the Hospital, asserting a workers’ compensation claim and a claim alleging that the Hospital negligently and/or wantonly failed to maintain a safe workplace. The Shelby Circuit Court entered a summary judgment in favor of the Hospital on Britt’s negligence and wantonness claims on October 6, 1998, and Britt’s workers’ compensation claim went to trial. After a bench trial, the court entered a judgment in favor of the Hospital on June 7, 2000, finding that Britt’s claim was not covered by the Alabama Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975 (hereinafter referred to as “the Act”).

Britt appealed the trial court’s judgments to the Court of Civil Appeals. That court affirmed the trial court’s judgment as to the workers’ compensation claim, but reversed the trial court’s summary judgment as to Britt’s negligence and wantonness claims.

Analysis

I.

The Hospital contends that the Court of Civil Appeals erroneously determined that Britt’s injuries were not covered under the Act. Specifically, the Hospital argues that Britt’s injuries arose “from a cause originating in [her] employment,” and, thus, that they are covered by the Act; however, the Hospital asserts that Britt’s injuries are not compensable under the Act. Because the relevant facts in this case are undisputed, the ore tenus rule does not apply to the trial court’s ruling.

“ ‘ “[W]hen a trial court sits in judgment on facts that are undisputed, an appellate court will determine whether the trial court misapplied the law to those undisputed facts.” ’ Harris v. McKenzie, 703 So.2d 309, 313 (Ala.1997)(quoting Craig Constr. Co., Inc. v. Hendrix, 568 So.2d 752, 756 (Ala.1990)). The ore tenus ‘standard’s presumption of correctness has no application to a trial court’s conclusions on questions of law.’ Beavers [v. Walker County, 645 So.2d 1365, 1372 (Ala.1994).] ‘[0]n appeal, the ruling on a question of law carries no presumption of correctness, and this Court’s review is de novo.’ Ex parte Graham, 702 So.2d 1215, 1221 (Ala.1997).”

Rogers Foundation Repair, Inc. v. Powell, 748 So.2d 869, 871 (Ala.1999).

We agree with the Court of Civil Appeals that the injuries resulting from Britt’s car accident, which occurred while she was driving home from work, are not covered under the Act. Section 25-5-31, Ala.Code 1975, provides that an employee has the right to pursue an action under the Act for injuries “arising out of and in the course of his employment.” “The phrases [‘arising out of and ‘in the course of] are not synonymous; where both are used con-junctively a double condition has been imposed, and both terms must be satisfied in order to bring a case within the act.” Union Camp Corp. v. Blackmon, 289 Ala. 635, 639, 270 So.2d 108, 111 (1972) (quoting Wooten v. Roden, 260 Ala. 606, 610, 71 So.2d 802, 806 (1954)). See also Kewish v. Alabama Home Builders Self Insurers Fund, 664 So.2d 917 (Ala.Civ.App.1995); Grider v. McKenzie, 659 So.2d 612 (Ala.Civ.App.1994); Alabama Power Co. v. Mackey, 594 So.2d 1238 (Ala.Civ.App.1991).

“Whether an accidental injury ‘arises out of the claimant’s employment is basically a question of whether there is a causal relationship between the claimant’s performance of his or her duties as an employee and the complained-of injury.” Ex parte Trinity Indus., Inc., 680 So.2d 262, 266 (Ala.1996). “An injury to an employee arises in the course of his employment when it occurs within the period of his employment, at a place where he may reasonably be, and while he is reasonably fulfilling the duties of his employment or engaged in doing something incident to it.” Anderson v. Custom Caterers, Inc., 279 Ala. 360, 361, 185 So.2d 383, 384-85 (1966)(citing Southern Cotton Oil Co. v. Bruce, 249 Ala. 675, 32 So.2d 666 (1947)). Section 25-5-1, Ala.Code 1975, states that the clause “injuries by an accident arising out of and in the course of the employment” “does not cover workers except while engaged in or about the premises where their services are being performed or where their service requires their presence as a part of service at the time of the accident and during the hours of service as workers.”

Generally, Alabama law has held that injuries sustained in accidents that occur while an employee is traveling to and from work are not covered under the Act because those injuries do not meet the “arising out of and in the course of employment” requirement. See Hughes v. Decatur Gen. Hosp., 514 So.2d 935 (Ala.1987); Exchange Distrib. Co. v. Oslin, 229 Ala. 547, 158 So. 743 (1935); Tucker v. Die-Matic Tool Co., 652 So.2d 263 (Ala.Civ.App.1994); Walker v. White Agencies, Inc., 641 So.2d 795 (Ala.Civ.App.1993); Terry v. NTN-Bower Corp., 615 So.2d 629 (Ala.Civ.App.1992); Winn-Dixie Stores, Inc. v. Smallwood, 516 So.2d 716 (Ala.Civ.App.1987). Alabama courts have carved out only a few exceptions to this general rule:

“Such exceptions include situations where the employer furnishes the employee transportation or reimburses him for his travel expenses; where the accident occurs on the employer’s property or on public property that is tantamount to the employee’s ingress to and egress from the employer’s property; or where the employee is injured crossing a public street between the main premises of the employer and the parking lot owned by the employer.”

Terry v. NTN-Bower Corp., 615 So.2d at 631 (citations omitted). See also Meeks v. Thompson Tractor Co., 686 So.2d 1213, 1216 (Ala.Civ.App.1996). An additional exception to the general rule arises when an employee, during his travel to and from work, is engaged in some duty for his employer that is in furtherance of the employer’s business. See Tucker v. Die-Matic Tool Co., 652 So.2d at 265.

Britt’s injuries that resulted from her car accident did not occur at her place of employment, nor was she engaged in any duties of her employment when the accident occurred. Therefore, Britt’s injuries did not meet the “in the course of [her] employment” requirement of the Act. Furthermore, none of the exceptions to the general rule are applicable to Britt’s case. Britt was not reimbursed for the expenses of traveling to and from work; the accident occurred after working hours while she was driving her own automobile; the accident did not occur on the Hospital’s property or on public property that is “tantamount to the employees’ ingress to and egress from the employer’s property”; and there is no allegation that she was engaged in some duty for the Hospital that was in furtherance of the Hospital’s interests while she was driving home. Because Britt’s injuries did not occur “in the course of [her] employment” as required by § 25-5-31, Ala.Code 1975, she may not bring a workers’ compensation claim against the Hospital undér the Act. Therefore, we affirm the Court of Civil Appeals’ judgment insofar as it held that Britt may not maintain a workers’ compensation claim for her injuries.

The Court of Civil Appeals further reasoned that because Britt’s injuries were not covered under § 25-5-31, Ala.Code 1975, she was free to bring a tort claim against the Hospital. The Hospital argues that the Court of Civil Appeals wrongly decided this matter because, it argues, that court failed to address the Act’s exclusivity provisions, §§ 25-5-52 and -53, Ala.Code 1975. Specifically, the Hospital maintains that those statutes prohibit Britt from maintaining a tort action against her employer for her injuries because, it contends, the cause of Britt’s accident originated in her employment.

We agree with the Court of Civil Appeals’ holding that Britt is not precluded from bringing a tort claim against the Hospital under the facts of this case. Our determination is based, however, not upon the fact that Britt’s injuries are not covered by the Act, but upon the plain language of the exclusivity provisions. Section 25-5-52, Ala.Code 1975, provides:

“Except as provided in this chapter, no employee of any employer subject to this chapter ... shall have a right to any other method, form, or amount of compensation or damages for an injury ... occasioned by an accident ... proximately resulting from and while engaged in the actual performance of the duties of his or her employment and from a cause originating in such employment or determination thereof.”

(Emphasis added.) Section 25-5-53, Ala. Code 1975, bars an employee from bringing an action against an employer for injuries sustained by the employee while in the service of the employer:

“The rights and remedies granted in this chapter to an employee shall exclude all other rights and remedies of the employee ... at common law, by statute, or otherwise on account of injury, loss of services, or death. Except as provided in this chapter, no employer shall be held civilly liable for personal injury to ... the employer’s employee, for purposes of this chapter, whose injury ... is due to an accident ... while engaged in the service or business of the employer, the cause of which accident ... originates in the employment.”

(Emphasis added.)

We must interpret the exclusivity clauses in the Act according to the plain language of the statutes.

“In determining the meaning of a statute, this Court looks to the plain meaning of the words as written by the legislature. As we have said:
“ ‘ “Words used in a statute must be given their plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.” ’
“Blue Cross & Blue Shield v. Nielsen, 714 So.2d 293, 296 (Ala.1998) (quoting IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992)). It is true that when looking at a statute we might sometimes think that the ramifications of the words are inefficient or unusual. However, it is our job to say what the law is, not to say what it should be. Therefore, only if there is no rational way to interpret the words as stated will we look beyond those words to determine legislative intent. To apply a different policy would turn this Court into a legislative body, and doing that, of course, would be utterly inconsistent with the doctrine of separation of powers.”

DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270, 275-76 (Ala.1998)(some citations omitted).

“Admittedly, this Court does not have the authority to judicially engraft exceptions into the immunity provisions applicable to the employer, Clark v. Chrysler Corp., 342 So.2d 902 (Ala.1977), but neither should it expand the immunity into areas not covered by the Act.” Garvin v. Shewbart 442 So.2d 80, 82-83 (Ala.1983), overruled on other grounds, Lowman v. Piedmont Exec. Shirt Mfg. Co., 547 So.2d 90 (Ala.1989). “The Act is designed to compensate those who are injured on the job and provides immunity from common law suits for those employers and carriers who come within the Act.” Garvin v. Shewbart, 442 So.2d at 83. See also Busby v. Truswal Sys. Corp., 551 So.2d 322 (Ala.1989). “The Alabama [Workers’] Compensation Act makes it clear that it is an exclusive remedy only in situations where an employee is suing his employer for injury in the course of his employment.” Kilgore v. C.G. Canter, Jr. & Assocs., Inc., 396 So.2d 60, 63 (Ala.1981).

Sections 25-5-52 and -53, Ala. Code 1975, are unambiguous in their explicit limitation: the Act is the exclusive remedy when an employee is injured in an accident proximately resulting from, and that occurred while the employee was engaged in, the actual performance of the duties of his or her employment. Based upon the facts before us, we conclude that the accident that resulted in Britt’s injuries did not proximately result from, and occur while she was engaged in, the actual performance of the duties of her employment. Therefore, §§ 25-5-52 and -53, Ala.Code 1975, do not prohibit Britt from bringing a tqrt action against the Hospital for injuries arising from her car accident, which occurred when she was driving home after she had completed her shift at work.

II.

We next turn to the Hospital’s argument that it is entitled to a summary judgment on Britt’s tort claims because, it argues, Britt failed to demonstrate that, under the law and the facts of this case, the Hospital breached any duty it may have owed her to provide a safe workplace and safe working conditions. The trial court entered a summary judgment in favor of the Hospital on these claims, holding that Britt’s sole remedy in this case was under the Act, which precluded Britt’s tort actions against the Hospital. Having already decided that the Act’s exclusivity provisions do not prevent Britt from bringing a tort action against the Hospital, we now address whether the trial court’s summary judgment was proper for any other valid legal reason.

The law governing this Court’s review of a summary judgment is well-settled:

“ ‘In reviewing the disposition of a motion for summary judgment, we utilize the same standard as that of the trial court in determining whether the evidence before the court made out a genuine issue of material fact’ and whether the movant was entitled to a judgment as a matter of law. Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 588 So.2d 794, 797-98 (Ala.1989). Evidence is ‘substantial’ if it is 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.’ West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).”

Ex parte General Motors Corp., 769 So.2d 903, 906 (Ala.1999). Furthermore, this Court will affirm a properly entered summary judgment, even if the trial court’s reasons for entering the judgment were incorrect. 769 So.2d at 911. See also Smith v. Equifax Servs., Inc., 537 So.2d 463, 465 (Ala.1988)(stating that this Court will affirm the trial court’s judgment if it is supported by any valid legal ground).

Britt alleged in her complaint that the Hospital “negligently and/or wantonly” failed to provide her with a safe workplace and safe working conditions. The duty of an employer to provide a safe workplace is codified in § 25-l-l(a), Ala.Code 1975. That statute provides:

“(a) Every employer shall furnish employment which shall be reasonably safe for the employees engaged therein and shall furnish and use safety devices and safeguards and shall adopt and use methods and processes reasonably adequate to render such employment and the places where the employment is performed reasonably safe for his employees and others who are not trespassers, and he shall do everything reasonably necessary to protect the life, health and safety of his employees and others who are not trespassers.”

Section 25-l-l(c)(3), Ala.Code 1975, defines the terms “safe” and “safety” as follows:

“Such terms, applied to any employment or place of employment, place of public assembly or public building, shall mean ‘reasonably safe’ or ‘reasonable safety’ consistent with the lawful purpose of the use and occupancy of the place of employment, place of public assembly or public building and the inherent danger of the employment, the process, operation or situation involved, and, shall include conditions and methods of sanitation and hygiene reasonably necessary for the protection of the life, health and safety of the employees and others who are not trespassers.”

Applying the standards of statutory interpretation set out above, we must conclude that § 25-1-1, Ala.Code 1975, places a duty on employers to provide a reasonably safe workplace and reasonably safe working conditions at the workplace. See Morris v. Merritt Oil Co., 686 So.2d 1139, 1144 (Ala.1996). However, the plain language of § 25-1-1, Ala.Code 1975, places this duty on employers only so far as they have control over the physical conditions of the workplace and the premises of the workplace. The text states that the employer shall furnish “reasonably safe” employment for the employees engaged “therein” and shall furnish and use safety devices and safeguards and shall adopt and use methods and processes reasonably adequate to render “such employment and the places where the employment is performed” reasonably safe. Furthermore, the statute requires an employer to do everything reasonably necessary to protect the life, health, and safety of its employees and others who are not trespassers. In other words, the statute governs only the safety of those who are expected to be on the premises of the workplace and the safety of the physical conditions of the workplace premises. See also Morris v. Merritt Oil Co., 686 So.2d at 1144 (noting that although an employer has the duty to provide a safe workplace “there is no precedent for extending the provisions of § 25-1-1 to require that ... an employer must ensure that nothing in the workplace disturbs the emotional well-being of the employees”).

We decline to hold that the duties placed on an employer under § 25-1-1, Ala.Code 1975, extend to scheduling work hours for employees in an attempt to ensure their safety traveling home from work. Furthermore, Britt has failed to produce substantial evidence indicating that the Hospital breached those duties it did owe her under § 25-1-1, Ala.Code 1975. Therefore, we reverse the Court of Civil Appeals’ judgment insofar as it reverses the trial court’s summary judgment in favor of the Hospital on Britt’s negligence and wantonness claims.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

SEE, HARWOOD, and STUART, JJ„ concur.

HOUSTON, J., concurs specially.

MOORE, C.J., concurs in the result.

WOODALL, J., concurs in the result in part.

LYONS and JOHNSTONE, JJ„ concur in part and dissent in part.

HOUSTON, Justice

(concurring specially).

Ms. Britt is predicating her right to recover against the Hospital on her employee-employer relationship with the Hospital. In my opinion, if she does not have a cause of action under the Workers’ Compensation Act against her employer, she does not have a cause of action against the Hospital arising out of the employer-employee relationship. I was not on the Court when Gentry v. Swann Chemical Co., 234 Ala. 313, 174 So. 530 (1937), was decided, and I dissented in Lowman v. Piedmont Executive Shirt Manufacturing Co., 547 So.2d 90 (Ala.1989). Even though stare decisis impels me to follow those cases, it does not require that I expand the holdings in those cases. To impose liability on the Hospital in this case would be a significant expansion of Swann Chemical and Lowman.

Although I sympathize with Ms. Britt, I know of no common-law cause of action for injuring oneself by falling asleep while driving one’s own vehicle that would be protected by Art. I, § 13, of the Constitution of Alabama of 1901.

WOODALL, Justice

(concurring in the result in part).

Insofar as the majority opinion reverses a portion of the judgment of the Court of Civil Appeals, I concur in the result. I express no opinion on any other issue or with regard to any other holding.

LYONS, Justice

(concurring in part and dissenting in part).

I concur in Part I of the main opinion, which holds that Britt’s claim was not covered by the Alabama Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975 (hereinafter “the Act”), and that she is permitted to bring a civil action against her employer.

I respectfully dissent as to Part II, which affirms the trial court’s summary judgment in favor of the Hospital on Britt’s tort claims. That part of Britt’s complaint seeking damages as a result of the Hospital’s alleged negligence or wanton misconduct alleged that the Hospital “had a duty to use reasonable care to protect the plaintiff from hazardous conditions at work, and otherwise to provide a reasonably safe place to work.” Britt then alleged that the Hospital “negligently and/or wantonly breached said duty by requiring, causing and/or allowing the Plaintiff to work two consecutive 16 hour shifts with a minimal break between shifts, and by failing to implement measures designed to eliminate or reduce this hazardous condition and the risks imposed.” The main opinion finds Britt’s common-law count deficient under § 25-1-1.

Section 25-1-1 provides:

“(a) Every employer shall furnish employment which shall be reasonably safe for the employees engaged therein and shall furnish and use safety devices and safeguards and shall adopt and use methods and processes reasonably adequate to render such employment and the places where the employment is performed reasonably safe for his employees.”

In the context where the employee’s claim is covered by the Act, this Court has held that the employee does not have a remedy in tort against the employer, regardless of whether the conduct of the employer is alleged to be intentional and willful. This is so because § 25-5-11, the savings provision of the Act permitting actions arising from intentional and willful conduct, is limited to actions against co-employees. See Ex parte McCartney Constr. Co., 720 So.2d 910 (Ala.1998). Because Britt does not have a claim under the Act, I consider cases such as McCartney Construction to be distinguishable. Consequently, I cannot embrace the views expressed in Judge Thompson’s dissenting opinion to the Court of Civil Appeals’ opinion, in which he cites McCartney Construction as authority for trial court’s summary judgment in favor of the Hospital.

My research has not revealed any recent occasion when this Court has had the opportunity to consider the viability of a claim against the employer for damages alleged to be the proximate consequence of a failure to provide a safe place to work when the employee’s injury is not covered by the Act. However, in Gentry v. Swann Chemical Co., 234 Ala. 313, 174 So. 530 (1937), abrogation by statute on other grounds recognized, Ex parte Harris, 590 So.2d 285 (Ala.1991), the Court found the plaintiffs claim not covered by the Act, and yet upheld the injured employee’s right to sue under a count described as asserting the “common-law duty to furnish the plaintiff with a safe place to work.” 234 Ala. at 315, 174 So. at 531.

The predecessor to § 25-1-1, imposing a statutory duty on an employer to provide its employees a safe place to work, was hot enacted until 1939, two years after the opinion in Gentry was issued. I find no basis upon which to conclude that § 25-1-1 is anything other than cumulative to whatever rights the plaintiff might have enjoyed at common law. Judge Seybourne H. Lynne, a former Alabama circuit judge, observed in Minyard v. Woodward Iron Co., 81 F.Supp. 414, 418 (N.D.Ala.), aff'd, 170 F.2d 508 (5th Cir.1948), that “the effect of the statute [imposing a duty on employers as to safety] was to enlarge the common law duty of the employer, as it formerly obtained under the judge-made law of Alabama.”

The main opinion properly analyzes the issue whether the trial court erred in entering a summary judgment on the common-law claim on its merits rather then holding that it is barred by the exclusivity provisions of the Act. I part company with the main opinion in its analysis of the validity of the claim for failure to provide a reasonably safe workplace by parsing the language found within the four corners of § 25-1-1 and then finding Britt’s common-law count deficient. Britt states her claim alleging negligent and/or wanton breach of a “a duty to use reasonable care to protect the plaintiff from hazardous conditions at work, and otherwise to provide a reasonably safe place to work” without reference to § 25-1-1. The issue before us is the propriety of the summary judgment in favor of the Hospital on the common-law claim. In our review of that issue we should not confine Britt to a theory dependent entirely on § 25-1-1.

We can affirm the trial court for any reason, not necessarily the reason given by the trial court. Cutler v. Orkin Exterminating Co., 770 So.2d 67, 71 (Ala.2000); Ex parte City of Fairhope, 739 So.2d 35, 39 (Ala.1999); Smith v. Equifax Servs., Inc., 537 So.2d 463 (Ala.1988). Here, the trial court relied solely on the incorrect conclusion that Britt’s “sole remedy is workers’ compensation for which the [Hospital] is immune from all other forms of liability, including traditional common law tort remedies.” (Order of Oct. 6,1998.) This holding was no accident; the Hospital’s motion for a summary judgment relied exclusively upon the preclusion provision of the Act. Our rule permitting affirmance for any reason is limited to matters supported by the record. See Chazen v. Parton, 739 So.2d 1104, 1108 (Ala.1999)(a judgment may be affirmed on any valid ground supported by the record).

Justice Houston, in his special concurrence, states that he knows of no common-law basis for liability on these facts. I cannot take such a dim view of the merits of Britt’s claim at this stage of the proceedings — confined as we are to the record before us. I express no opinion as to the appropriate disposition of a motion for a summary judgment filed by the Hospital grounded solely on the lack of merit of Britt’s claim seeking damages on a common-law tort theory and supported by a record of evidence dealing with the pivotal issue of proximate cause. I therefore must respectfully dissent from Part II of the main opinion.

JOHNSTONE, Justice

(concurring in part and dissenting in part).

I concur in the rationale and judgment of the main opinion insofar as it affirms the affirmance of the judgment in favor of the defendant Hospital on the plaintiff Britt’s worker’s compensation claim. I further concur in the main opinion in its analysis of § 25-5-52 and § 25-5-53, Ala. Code 1975, and concur in the holdings as well, to the effect that these two Code sections embodying the exclusivity provisions of the Workers’ Compensation Act do not bar Britt’s tort claims against the Hospital.

I do not agree to reject the rationale of the Court of Civil Appeals for its conclusion that the exclusivity provisions do not bar Britt’s tort claims. Rather, this rationale by the Court of Civil Appeals is a correct and consistent alternative and complement to our own rationale for the same conclusion.

I respectfully dissent from the main opinion and its judgment insofar as it reverses the Court of Civil Appeals in its reversal of the summary judgment in favor of the Hospital on Britt’s tort claims. The record contains substantial evidence that Britt’s injuries resulted proximately from violations of duties imposed on the Hospital by § 25-l-l(a), Ala.Code 1975, as follows:

“Every employer shall furnish employment which shall be reasonably safe for the employees engaged therein ... and shall adopt and use methods and processes reasonably adequate to render such employment ... reasonably safe for his employees ..., and he shall do everything reasonably necessary to protect the life, health and safety of his employees.... ”

The plain meaning of these provisions in no way restricts these duties to the physical conditions of the workplace. Imposing a dangerously exhausting schedule on an employee may be a violation of these duties. I respectfully submit that we should affirm the Court of Civil Appeals in its reversal of the summary judgment against Britt on her tort claims against the Hospital.


author: CRAWLEY, Judge.

text:
    Debra L. BRITT v. SHELBY COUNTY HEALTH CARE AUTHORITY d/b/a Shelby Medical Center.
    2991083.
    Court of Civil Appeals of Alabama.
    Jan. 17, 2003.
    James M. Patton of Patton & Veigas, P.C., Birmingham, for appellant.
    Mark W. Lee and Dorothy A. Powell of Parsons, Lee & Juliano, P.C., Birmingham; and Michael J. Cohan of Webb & Eley, P.C., Montgomery, for appellee.
   On Remand from the Supreme Court

CRAWLEY, Judge.

Debra L. Britt, a respiratory technician employed by Shelby County Health Care Authority d/b/a Shelby Medical Center (“the Hospital”), was seriously injured in an automobile accident when she fell asleep at the wheel of her vehicle while driving home after working two 16-hour shifts in a 40-hour period. She sued the Hospital, asserting tort claims based on negligence and wantonness and a workers’ compensation claim. On the negligence claims, the circuit court entered a summary judgment for the Hospital. On the workers’ compensation claim, the circuit court, after a bench trial, entered a judgment for the Hospital.

On April 13, 2001, this court affirmed the judgment on the workers’ compensation claim; it reversed the judgment on the negligence claims and remanded the cause for further proceedings. The Hospital petitioned the Alabama Supreme Court for a writ of certiorari to review the decision. The supreme court granted the writ to decide the following question of first impression: “whether an employee who falls asleep and is injured in an automobile accident while driving her personal vehicle home after having worked two 16-hour shifts with an 8-hour break between shifts can sustain a workers’ compensation claim or negligence and wantonness claims against her employer.” See Ex parte Shel by County Health Care Auth., 850 So.2d 332, 335 (Ala.2002).

The supreme court affirmed that part of this court’s judgment that affirmed the circuit court’s judgment on the workers’ compensation’s claim. However, the supreme court reversed this court’s judgment “insofar as it reverse[d] the trial court’s summary judgment in favor of the Hospital on Britt’s negligence and wantonness claims.” See Ex parte Shelby County Health Care Auth., 850 So.2d at 340. Therefore, in compliance with the supreme court’s opinion, the judgment of the Shelby Circuit Court is affirmed in its entirety.

AFFIRMED.

YATES, P.J., and THOMPSON, PITTMAN, and MURDOCK, JJ„ concur.


author: CRAWLEY, Judge. PITTMAN, Judge,

text:
    IPSCO STEEL, INC. v. ALABAMA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT et al.
    2000071.
    Court of Civil Appeals of Alabama.
    March 22, 2002.
    Certiorari Quashed Nov. 8, 2002 Alabama Supreme Court 1011327.

      Ronald W. Farley, F.A. Flowers III, and Warren C. Matthews of Burr & Forman, L.L.P., Birmingham; and James E. Atchi-son and Frank G. Taylor of Atchison, Crosby, Saad & Beebe, P.C., Mobile, for appellant.
    Tommy E. Bryan and Olivia H. Jenkins, asst, attys. gen., Alabama Department of Environmental Management; and Robert D. Tambling, asst. atty. gen., Alabama Environmental Management Commission, for appellees.
   CRAWLEY, Judge.

In October 1998, the Alabama Department of Environmental Management (“ADEM”) issued to IPSCO Steel, Inc., a permit authorizing the construction and operation of various air-pollution-control devices on a steel mill IPSCO proposed to build and operate in Axis, Alabama. One of the requirements of the permit was that IPSCO’s mill have an emissions smokestack equipped with an instrument known as a “continuous opacity monitor” (“COM”). In November 1999, IPSCO requested a modification of the permit, seeking, among other things, to be allowed to use a continuous ridge vent, rather than a smokestack, as the exhaust point for the emissions from the mill and proposing to substitute triboelectric sensors for the COM. On May 10, 2000, ADEM denied IPSCO’s request for a modification of its permit with respect to the elimination of the smokestack and the COM.

On May 25, 2000, IPSCO filed with the Environmental Management Commission (“the Commission”) a timely request for a hearing, pursuant to § 22-22A-7(c)(3), Ala. Code 1975, to contest the denial. The Commission referred the matter to a hearing officer for findings and recommendations. After a three-day evidentiary hearing, the hearing officer, on July 31, 2000, filed his findings of fact, conclusions of law, and recommendations to the Commission.

The hearing officer recommended that the Commission approve IPSCO’s design-modification request, conditioned upon IP-SCO’s undertaking additional modifications and monitoring measures. The hearing officer also made the following additional recommendation:

“I recommend that the Commission’s modification of this permit as outlined above be conditioned upon compliance with the public participation requirements in ADEM Admin. Code R. 335-3-14-.04(16). Should comments thereafter be received which indicate that the Commission’s conditional decision should be modified further in some way, I recommend that the matter be remanded to the Hearing Officer for consideration of those comments so that a recommendation can then be made to the Commission based upon those comments and any additional comments provided by [ADEM] and IPSCO with respect to the public comments. The Commission’s decision at that point will become final.”

(First emphasis original; later emphases added.) On August 1, 2000, the Commission adopted the findings and recommendations of the hearing officer without modification.

On August 31, 2000, IPSCO appealed to the Mobile Circuit Court, arguing that the Commission had no authority to conduct a second review of IPSCO’s design-modification request after receipt of public comments and also seeking an injunction that would allow it to continue the construction of its mill pending the outcome of the appeal. The circuit court dismissed IP-SCO’s appeal because, it held, the purported appeal was from a nonfinal order of the Commission. The circuit court also denied IPSCO the injunctive relief it sought. We affirm.

In Alabama Environmental Management Commission v. Fisher Industrial Service, Inc., 586 So.2d 908 (Ala.Civ.App.1991), this court outlined the statutory authority for judicial review of an order of the Commission as follows:

“Section 41-22-27(f)[, Ala.Code 1975], which took effect with regard to ADEM on. October 1, 1986, provides, in pertinent part, as follows:
“ ‘Except as provided in subdivision (6) of subsection (c) of section 22-22A-7, judicial review of any order of the environmental management commission modifying, approving or disapproving an administrative action of [ADEM] shall be in accordance with the provisions for review of final agency decisions of contested cases in sections 41-22-20 and 41-22-21.’
“Section 22-22A-7(c)(6) provides as follows:
“ ‘(6) Any order of the environmental management commission made pursuant to the above procedure, modifying, approving or disapproving the department’s administrative action, constitutes a final action , of the department and is appealable to the Montgomery county circuit court or the circuit court in which the applicant does business or resides for judicial review on the administrative record provided that such appeal is filed within 80 days after issuance of such order.’
“Therefore, judicial review of an order of the Commission will be in accordance with § 22-22A-7(c)(6), if the order was entered pursuant to the procedures in § 22-22A-7(c). Ex parte Baldwin County Commission, 526 So.2d 564 (Ala.1988). In the present case the order was entered in. accordance with § 22-22A-7(c); therefore, judicial review of the Commission’s decision is exempted from the application of § 41-22-20, which provides for judicial review of agency orders under the Alabama Administrative Procedure Act (AAPA). See Dawson v. Alabama Dep’t of Environmental Management, 529 So.2d 1012 (Ala.Civ.App.1988).”

Alabama Envtl. Mgmt. Comm’n v. Fisher Indus. Serv., Inc., 586 So.2d at 909-10.

The hearing officer’s July. 31, 2000, recommendation to the Commission — that it approve IPSCO’s requested modification conditioned on IPSCO’s making additional modifications and undertaking certain monitoring measures, and conditioned on receiving public comment pursuant to the requirements of ADEM Admin. Code R. 335-3-14-.04(16) — was not, in the words of § 22-22A-7(c)(6), an order “modifying, approving or disapproving [ADEM’s] administrative action.” Likewise, the Commission’s August 1 “order” adopting the hearing officer’s findings and recommendations in toto was not an order “modifying, approving or disapproving [ADEM’s] administrative action.” An “order” that will support an appeal is a final order, not a conditional order. See generally Ex parte Gilmer, 64 Ala. 234 (1879) (holding that a final judgment, decision or order that will support an appeal is one that puts an end to the proceedings between the parties and leaves nothing further to be done); Ford Motor Co. v. Tunnell, 641 So.2d 1238, 1240 (Ala.1994) (holding that when an order leaves the exact nature or extent of a party’s liability “for a later determination based on uncertain conditions,” it is not final).

The hearing officer’s recommendation, which the Commission adopted as its decision, was, by its very terms, a conditional approval, not a final determination, of IPSCO’s request. “[T]he inclusion of conditional language is a good indication that an administrative determination is not final.” Soil Remediation Sys., Inc. v. Department of Envtl. Protection, 703 A.2d 1081, 1084 (Pa.Commw.Ct.1997). See also Takao v. Zoning Bd. of Adjustment, 656 So.2d 873 (Ala.Civ.App.1995); McCurry v. Gold Kist, Inc., 647 So.2d 732 (Ala.Civ.App.1993).

In Takao, this court held that a decision by a city zoning board was not a final decision and therefore not appealable because its overturning of an urban planner’s determination was conditional, i.e., “ ‘subject to the [property owner’s] providing income tax records indicating rental. income for the ... property during the time [he] owned the ... property.’ ” Takao, 656 So.2d at 873.

In McCurry, this court decided that an order conditionally granting a post-judgment motion to allow the trial court to consider additional evidence and to take the matter under advisement was not final and appealable. We held: “The decision of the trial court ... to grant the post-judgment motion, albeit conditionally, effectively delayed a final, appealable determination of this case until the ... final order was issued.” McCurry, 647 So.2d at 735.

Section 22-22A-7(c)(6), when read together with § 41-22-27(f), merely removes ADEM from the rehearing provisions established for other administrative agencies by § 41-22-17, Ala.Code 1975. See Ex parte Baldwin County Comm’n, 526 So.2d 564 (Ala.1988). In other words, a party litigating with ADEM has no opportunity to apply for a rehearing, and the Commission has no authority to reconsider its actions on rehearing. Id. As our supreme court recognized in Ex parte Baldwin County Commission, by enacting § 22-22A-7(e)(6) and § 41-22-27(f), “the legislature exempted [ADEM] from those provisions of the Administrative Procedure Act that dealt with rehearing.” 526 So.2d at 566 (emphasis added).

Admittedly, the Baldwin County Commission court stated that “§ 22-22A-7(c)(6) expressly provides that any order of [the Commission] shall constitute & final order.” 526 So.2d at 567. However, when read in the context of the facts and the legal issue presented in that case, the word “final” must be understood to mean “last,” in the sense that the agency action is not subject to being reconsidered on rehearing. On the other hand, the word “order” in the same statement must be understood to mean “final order,” in the 'sense that the agency action conclusively adjudicates all claims and leaves nothing further to be done. See Ex parte Gilmer, supra; Ford Motor Co. v. Tunnell, supra.

If, as IPSCO argues, all Commission orders are automatically “final orders” merely by virtue of § 22-22A-7(c)(6), then ADEM would never have the power to enter a conditional order. Accepting that argument under the circumstances of the present case would prevent ADEM from fulfilling its statutory responsibility to the citizens of Alabama.

In § 22-22A-2, Ala.Code 1975, the Legislature stated its intent in creating ADEM. It charged ADEM with the statutory responsibility, among other things, of “protectfing] human health and safety, ... developing] and providing] for a unified environmental regulatory and permit system, ... [and] insuring] that government is responsive to the needs of the people and sufficiently flexible to meet changing conditions.” By conditioning its approval of IPSCO’s request on input from the public, pursuant to ADEM Admin. Code R. 335-3-14-04(16), ADEM was obviously attempting to fulfill its statutory responsibility to ensure public participation in its decisions regarding environmental matters. As the circuit court aptly observed in this case:

“The modification requested by IPSCO goes to the very heart of its pollution control and cannot be considered a ‘minor modification,’ the consideration of which would not require public participation. The Commission correctly conditioned its decision on compliance with the public participation requirement. To have allowed the modification without compliance would have made a mockery of the rights of the public.”

Because the Commission’s order was clearly conditional, the trial court’s dismissal of IPSCO’s purported appeal as being from a nonfinal judgment is due to be affirmed.

AFFIRMED.

YATES, P.J., and MURDOCK, J., concur.

THOMPSON, J., concurs in the result only.

PITTMAN, J., dissents.

PITTMAN, Judge,

dissenting.

I conclude that the Commission exceeded its statutory authority entering a conditional order to retain jurisdiction allowing it to “reconsider” that order following notice and comment. Section 22-22A-7(c)(6), Ala.Code 1975, provides:

“Any order of the Environmental Management Commission made pursuant to the [Alabama Environmental Management Act’s administrative review] procedure, modifying, approving or disapproving the [Alabama Department of Environmental Management’s] administrative action, constitutes a final action of the department and is appeal-able to the Montgomery County Circuit Court or the circuit court in which the applicant does business or resides for judicial review on the administrative record provided that such appeal is filed within 30 days after the issuance of such order.”

(Emphasis added.) In fact, throughout § 22-22A-7, Ala.Code 1975, the provision of the Environmental Management Act that sets forth the administrative-review procedure, rigid time frames, and deadlines are established with which the Commission, its designated hearing officer, and the parties must comply. A continuance of the action after the commencement of the hearing is granted only if one seeking the postponement can demonstrate adequate justification. Dawson v. Cole, 485 So.2d 1164 (Ala.Civ.App.1986). The interests of competitive industry in a timely resolution of the hearing process must be carefully balanced with the rights of the aggrieved party to a meaningful hearing.

I conclude that the Commission, acting within its discretion, could have required public comment on the requested modification. However, I believe the proper method for the Commission to have followed to achieve this purpose would have been to enter a final judgment pursuant to § 22-22A-7, rejecting ADEM’s denial of the requested modification, and remanding the matter to the department with appropriate instructions, including those pertaining to notice and comment.


author: MURDOCK, Judge.

text:
    Lashedrick Varkeith RICHARD v. STATE of Alabama.
    2001067.
    Court of Civil Appeals of Alabama.
    June 28, 2002.
    Rehearing Denied Oct. 4, 2002.
    Certiorari Denied Dec. 13, 2002 Alabama Supreme Court 1020134.
    Brenda A. Dixon, Tuscaloosa, for appellant.
    William H. Pryor, Jr., atty. gen., and Stephanie N. Morman, asst. atty. gen., for appellee.
   MURDOCK, Judge.

On August 19, 2000, the State of Alabama (“State”) filed a complaint against Lashedrick Varkeith Richard (“Richard”) in the Tuscaloosa Circuit Court. The complaint alleged, among other things, that the State had seized $806 in United States currency from Richard that was subject to condemnation and forfeiture under § 20-2-93, Ala.Code 1975. The clerk’s record reflects that on August 23, 2000, service of process was perfected by personal service of the summons and complaint on Richard by the sheriff of Tuscaloosa County. On September 19, 2000, the State filed an application for the entry of a default judgment against Richard. On October 2, 2000, the trial court entered a default judgment against Richard in the amount of $806.

On December 29, 2000, Richard filed a motion for relief from the default judgment under Rule 60(b)(6), Ala. R. Civ. P., alleging, among other things, that he had not been served with the complaint and that the State and law-enforcement officials had attempted to conceal the filing of the complaint from him. In the motion, Richard requested a hearing. The trial court set a hearing for April 2, 2001.

On April 2, 2001, the trial court held a hearing on the motion. Also on that date, Richard filed an amendment to the motion; that amendment alleged that he had a meritorious defense to the default judgment and included several conclusory statements in support of his meritorious-defense claim. At that hearing, the trial court instructed the State to provide the court with a copy of the police report relating to the forfeiture complaint.

On April 3, 2001, the State filed a police report “in compliance with the Court’s instructions at the hearing on [Richard’s] Motion for Relief From Judgment.” On April 5, 2001, Richard filed a document styled “I. Objection to State’s Failure to Comply with Court’s Preliminary Order and Motion to Compel Production [relating to the State’s failure to provide an additional law-enforcement report]) and II. Motion for Open Court Hearing with Court Reporter regarding the Motion for Relief from Judgment .... ” On April 12, 2001, the trial court denied Richard’s Rule 60(b) motion and Richard’s motion requesting a hearing.

On May 4, 2001, Richard filed a “Motion to Vacate Judgments,” requesting that the trial court vacate its April 12, 2001, order denying the Rule 60(b)(6) motion and the motion for a hearing. On June 7, 2001, the trial court held a hearing on Richard’s motion. On June 20, 2001, the trial court purported to enter an order denying Richard’s motion. Richard appeals.

On appeal, Richard argues that the trial court abused its discretion in denying the Rule 60(b) motion because, he says, he had a meritorious defense, the State did not show that it would be unfairly prejudiced if the default judgment were set aside, the default judgment was not the result of his own culpable conduct, and his due process rights had been violated. Because we agree with the State and conclude that this appeal is due to be dismissed for lack of jurisdiction, we do not reach the merits of Richard’s arguments.

In Ex parte Keith, 771 So.2d 1018, 1022 (Ala.1998), our Supreme Court stated:

“After a trial court has denied a post-judgment motion pursuant to Rule 60(b)[, Ala. R. Civ. PJ, that court does not have jurisdiction to entertain a successive postjudgment motion to ‘reconsider’ or otherwise review its order denying the Rule 60(b) motion, and such a successive postjudgment motion does not suspend the running of the time for filing a notice of appeal. We note, as the Court of Civil Appeals has done on several occasions, that the Alabama Rules of Civil Procedure do not contain any provision for a ‘motion to reconsider’ a ruling on a Rule 60(b) motion.”

Accord Ex parte Jordan, 779 So.2d 183, 184 (Ala.2000) (reiterating that “This Court has held that ‘[a] trial court does not have jurisdiction to entertain a motion to reconsider the denial of a Rule 60(b) ... motion.’ ”) (quoting Ex parte Vaughan, 539 So.2d 1060, 1061 (Ala.1989)). The only review of that denial is by appeal. Ex parte Dowling, 477 So.2d 400, 404 (Ala.1985).

In this case, Richard filed a Rule 60(b)(6) motion on December 29, 2000, and amended that motion on April 2, 2001, to assert the additional ground of a meritorious defense. On April 12, 2001, the trial court entered an order denying the Rule 60(b) motion.

An appellant shall file a notice of appeal “within 42 days ... of the date of the entry of the judgment or order appealed from.” Rule 4(a)(1), Ala. R.App. P. Richard therefore had 42 days, i.e., until May 24, 2001, from the date of the denial of his Rule 60(b) motion to file a notice of appeal. Richard did not file a notice of appeal until July 20, 2001.

“An appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.” Rule 2(a)(1), Ala. RApp. P. Because Richard’s notice of appeal was not timely filed, we must dismiss this appeal. Keith, 771 So.2d at 1022.

APPEAL DISMISSED.

YATES, P.J., and CRAWLEY, THOMPSON, and PITTMAN, JJ„ concur.


author: THOMPSON, Judge.

text:
    Richard M. WALL v. Beth J. BOROSKY.
    2010562.
    Court of Civil Appeals of Alabama.
    Sept. 13, 2002.
    Rehearing Denied Nov. 8, 2002.

      Hayes D. Brown of Monroe, Trippe, Brown & Adair, L.L.P., Birmingham, for appellant.
    Sheila F. Morgan, Tuscumbia, for appel-lee.
   THOMPSON, Judge.

On November 16, 1987, the Circuit Court of Boone County, Missouri, entered a judgment in which it divorced Richard M. Wall (“the father”) and Beth J. Boro-sky (“the mother”) (hereinafter “the Missouri divorce judgment”). Two children were born of the parties’ marriage; both children were minors at the time of the parties’ divorce. The Missouri divorce judgment, among other things, awarded the mother physical custody of the parties’ children, awarded the father visitation rights, and ordered the father to pay $150 per month in child support until September 1988, at which time his child-support obligation would be either $150, or 20% of his net income, whichever amount was greater.

On March 5, 1996, the Chancery Court for Montgomery County, Tennessee, entered a judgment that modified certain provisions of the Missouri divorce judgment, including the father’s child-support obligation (hereinafter “the Tennessee modification judgment”). The Tennessee modification judgment provided, in relevant part:

“3. [The father’s] child-support obligation shall be modified prospectively from February 16, 199[6][] as follows: [the father] shall pay child support in the amount of $781 per month directly to [the mother]. The Court finds that [the father’s] net income as of the date of the hearing is $2,625 per month. The Court finds that the amount corresponding to said net income would be $833 per month, pursuant to the Tennessee Child Support Guidelines; however, said amount has been reduced by one half during and because of the extra six weeks of visitation that has been allocated to [the father] herein.
“4. In the future, nineteen percent (19%) of [the father’s] net income shall be the basis for setting [the father’s] support obligations in addition to [the mother’s] being required to purchase two (2) round-trip airline tickets for both children each year.
“6. Finally, any modification of the amount of child support ordered herein above, whether a petition seeking an increase or decrease, shall be predicated only upon a showing of a difference of ten percent (10%).”

On March 3, 2000, the mother filed in the trial court a petition seeking to domesticate the Missouri divorce judgment and the Tennessee modification judgment. The mother also petitioned the trial court to modify the father’s child-support obligation, to determine any child-support ar-rearage, and to find the father in contempt for his alleged failure to pay child support. The father counterpetitioned, seeking a reduction in his child-support obligation.

The trial court conducted an ore tenus hearing. On October 3, 2001, the trial court entered a judgment in which it, among other things, determined the father’s. child-support arrearage and his future child-support obligation. The father filed, a postjudgment motion; the trial court denied that motion. The father appealed.

The record indicates that in July 1996, the mother, her current husband, and the children moved to Alabama. The mother is retired from the United States Army; she receives $23,900 annually in retirement pay. The mother has a master’s degree in nursing, but she testified that she has chosen not to seek employment as a nurse.

The oldest child, a daughter, was a junior in college and past the agé of majority at the time of the hearing in this matter. The mother testified that the daughter’s college tuition was $8,000 per year and that she generally incurred $3,000 of additional expenses during the course of the school year. The Missouri divorce judgment, which was based on an agreement reached by the parties, provided that the parties are each to pay one-half of the children’s college expenses. The Tennessee modification judgment did not alter the postminority-support provision contained in the Missouri divorce judgment. The record indicates that each party has paid one-half of the daughter’s college expenses.

The father has remarried and resides in Arizona. At the time of the hearing in this matter, the father worked as an independent consultant. The mother maintained at trial that, pursuant to the terms of the Tennessee modification judgment, the father was. required to pay 19% of his net monthly income as child support. The father paid $781 per month in child support from March 1996 through November 1998. The father stated that in approximately November 1998, the mother’s attorney contacted him about paying approximately 19% of his net income as child support. The father testified that he then began paying child support in an effort to comply with the mother’s requests. After November 1998, the father paid child support in amounts varying from $560 per month to $903 per month. The parties apparently attempted to settle the child-support issue several times, but no agreement was ever incorporated into a judgment. This litigation eventually ensued.

At the trial of this matter, the parties presented evidence regarding the father’s net monthly income since 1996. Based on that evidence, the trial court determined that the father’s net monthly income for the years 1996 through 2000 had been as follows: $2,997 per month in 1996; $1,073 per month in 1997; $1,073 per month in 1998; $1,273 per month in 1999; and $7,767 per month in 2000. The trial court found that the father had earned net income of $1,648 per month in the first half of 2001 and that he had earned $1,140 per month for the last half of 2001. The father has not challenged the trial court’s factual findings regarding his net monthly income for the years 1996 though 200Í. In its judgment, the trial court determined that the Tennessee modification judgment required the father to pay 19% of his net income in child support, and it calculated the fathers child-support arrearage accordingly. The trial court determined that the father owed a total child-support ar-rearage of $28,137.95.

On appeal, the father first argues that the trial court failed to give “full faith and credit” to the Tennessee modification judgment because, he contends, the trial court misinterpreted that judgment in determining his child-support arrearage.

“Judgments are to be construed like other written instruments. The rules applicable to the construction and interpretation of judgments are those applicable to the construction and interpretation of contracts. Hanson v. Hearn, 521 So.2d 953 (Ala.1988). Separate provisions of judgments, like provisions of contracts, should be construed in pari materia, and the entire judgment — all provisions considered — should be read as a whole in the light of all the circumstances, as well as of the conduct of the parties. Id. Further, if the terms of a judgment are not ambiguous, they should be given their usual and ordinary meaning. McClure v. Cassady, 426 So.2d 430 (Ala.Civ.App.1982).”

Moore v. Graham, 590 So.2d 293, 295 (Ala.Civ.App.1991). Further, our supreme court has held that:

“Whether a judgment is ambiguous is a question of law to be determined by the court. If the terms of a judgment are not ambiguous, then they must be given their .usual and ordinary meaning and their ‘legal effect must be declared in the light of the literal meaning of the language used’ in the judgment. However, if a term in a trial court’s judgment is ambiguous, then the trial court’s interpretation of that term ‘is accorded a heavy presumption of correctness and will not be disturbed unless it is palpably erroneous.’ ”

State Pers. Bd. v. Akers, 797 So.2d 422, 424-25 (Ala.2000) (citations omitted).

After reviewing the applicable provisions of the Tennessee modification judgment, we conclude that that judgment is unambiguous. Therefore, this court must enforce that judgment according to its clear and literal terms. State Pers. Bd. v. Akers, supra; Vainrib v. Downey, 565 So.2d 647 (Ala.Civ.App.1990). The Tennessee modification judgment unambiguously provides that the father pay $781 per month in child support. Paragraph 8 of the Tennessee modification judgment clearly provides that the Tennessee court established the father’s child-support obligation pursuant to the Tennessee child-support guidelines and that, under those guidelines, the father was to pay $781 per month in child support. Paragraph 4 of the Tennessee modification judgment addresses a potential future modification of the father’s child-support obligation. However, that prospective determination regarding a future modification of child support is not binding; a court’s determination of whether it should modify the child-support obligation set forth in paragraph 3 of the Tennessee modification judgment would necessarily be based on circumstances that existed at the time the court considered the merits of the proposed modification.

Further, in interpreting possibly conflicting provisions in a judgment, specific terms are given more weight than are more general provisions. Ex parte Dan Tucker Auto Sales, Inc., 718 So.2d 33 (Ala. 1998). See also Moore v. Graham, 590 So.2d at 295 (the rules of construction applicable to contracts apply to the interpretation of a judgment). In this case, paragraph 3 specifically modifies the father’s child-support obligation to the amount of $781 per month. Paragraph 4 contains a general reference to a “future” modification of the father’s child-support obligation; however, paragraph 4 does not set forth the date at which the future modification should become effective. Therefore, the specific language of paragraph 3 of the Tennessee modification judgment governs in this case. See Ex parte Dan Tucker Auto Sales, Inc., supra. Given the foregoing, we must conclude that the trial court erred in its calculation of the father’s child-support arrearage.

The father also argues that the trial court erred in failing to establish his child-support obligation pursuant to the Alabama child-support guidelines. In its October 3, 2001, judgment, the trial court ordered the father to pay child support of $1,140 per month, an amount equal to 19% of the father’s net monthly income for the year 2001. In reaching that child-support determination, the trial court purported to deny the mother’s petition to modify the father’s child-support obligation. However, as we have held in this opinion, the father’s actual child-support obligation for the parties’ two children, as it existed after the entry of the Tennessee modification judgment and before the trial court’s October 3, 2001, judgment, was $781 per month. The child-support obligation established by the trial court is $1,140 per month for the parties’ one remaining minor child. Thus, in its October 3, 2001, judgment, the trial court has modified the amount of the father’s monthly child-support obligation.

The Alabama Uniform Interstate Family Support Act, § 30-3A-101 et seq., Ala. Code 1975, governs whether the trial court had jurisdiction to modify the child-support provisions of the Tennessee modification judgment. Section 30-3A-611, Ala. Code 1975, governs the modification of a child-support order or judgment issued by another state where one of the parties has registered the out-of-state child-support order or judgment in Alabama. In order to register an out-of-state child-support order, one of the parties must “file a support order or judgment determining parentage with the clerk of the appropriate court.” § 30-3A-10K15), Ala.Code 1975. In this case, the mother sought to “domesticate,” or register, both the Missouri divorce judgment and the Tennessee modification judgment. The father did not object, and the trial court granted the mother’s motion. Thus, we conclude that the two out-of-state judgments were registered in this state.

At the same time she sought to register the out-of-state judgments, the mother also petitioned for a modification of the father’s child-support obligation. See § 30-3A-609, Ala.Code 1975 (“A petition for modification may be filed at the same time as a request for registration, or later.”). An Alabama court may modify the registered out-of-state child-support order only if the requirements of § 30-3A-611, Ala.Code 1975, are met. § 30-3A-610, Ala.Code 1975. Section 30-3A-611, Ala. Code 1975, provides:

“(a) After a child-support order issued in another state has been registered in this state, the responding court of this state may modify that order only if Section 30-3A-613 does not apply and after notice and hearing it finds that:
“(1) the following requirements are met:
“(i) the child, the individual obli-gee, and the obligor do not reside in the issuing state;
“(ii) a petitioner who is a nonresident of this state seeks modification; and
“(iii) the respondent is subject to the personal jurisdiction of the court of this state; or
“(2) the child, or a party who is an individual, is subject to the personal jurisdiction of the court of this state and all of the parties who are individuals have filed written consents in the issuing tribunal for a court of this state to modify the support order and assume continuing, exclusive jurisdiction over the order. However, if the issuing state is a foreign jurisdiction that has not enacted a law or established procedures substantially similar to the procedures under this chapter, the consent otherwise required of an individual residing in this state is not required for the court to assume jurisdiction to modify the child-support order.
“(b) Modification of a registered child-support order is subject to the same requirements, procedures, and defenses that apply to the modification of an order issued by a court of this state and the order may be enforced and satisfied in the same manner.
“(c) A court of this state may not modify any aspect of a child-support order that may not be modified under the law of the issuing state. If two or more tribunals have issued child-support orders for the same obligor and child, the order that controls and must be so recognized under Section 30-3A-207 establishes the aspects of the support order which are nonmodifiable.
“(d) On issuance of an order modifying a child-support order issued in another state, a court of this state becomes the court having continuing, exclusive jurisdiction.”

In this case, the mother and the child had moved from Tennessee to Alabama, and the father had moved from Tennessee to Arizona. See § 30-3A-611(a)(l)(i). The mother, a resident of Alabama, petitioned for a modification of the father’s child-support obligation. The father, a nonresident, then counterpetitioned, also seeking a modification of his child-support obligation. See § 30-3A-611(a)(l)(ii). The mother is subject to the jurisdiction of Alabama’s courts. See § 30-3A-611(a)(l)(iii). Thus, the trial court had jurisdiction, pursuant to § 30-3A-611(a)(1), Ala.Code 1975, to modify the father’s child-support obligation.

The Alabama court’s modification of the child-support provisions of the Tennessee modification judgment, however, was subject to the same requirements and procedures that apply to modifications of child-support orders issued by courts of this State. § 30-3A-611(b), Ala.Code 1975.

“A noncustodial parent’s child-support obligation is determined by the application of the Rule 32 Child Support Guidelines; the application of those guidelines is mandatory. Nelson v. Landis, 709 So.2d 1299 (Ala.Civ.App.1998). The trial court may, within its discretion, deviate from the child-support guidelines; however, in doing so, it must enter a written finding, supported by the evidence, that the application of the child-support guidelines would be unjust or inequitable. State ex rel. Waites v. Isbell, 718 So.2d 85 (Ala.Civ.App.1998); Nelson v. Landis, supra. ‘A trial court’s failure to follow the guidelines or to make a written finding that application of the guidelines would be unjust, is reversible error.’ State ex rel. Waites, 718 So.2d at 86.”

Allegro v. State ex rel. Lett, 747 So.2d 913, 914 (Ala.Civ.App.1999).

In this case, the trial court modified the father’s child-support obligation by raising that obligation from $781 per month to $1,140 per month. However, in reaching its determination of child support, the trial court did not apply the Rule 32, Ala. R. Jud. Admin., child-support guidelines. The trial court also failed to make •any written finding that it had deviated from the Rule 32 child-support guidelines because the application of those guidelines would be inequitable under the facts of this case. See Allegro v. State ex rel. Lett, supra. Therefore, we conclude that the trial court erred in failing to determine the father’s child-support obligation in compliance with the Rule 32 child-support guidelines.

The father also raises an issue related to postminority support for the parties’ two children. The Missouri divorce judgment, which incorporated an agreement reached by the parties, provided that each party was to pay one-half of the children’s postminority college expenses; the Tennessee modification judgment did not alter that provision. In its October 3, 2001, judgment, the trial court did not make a specific provision regarding the parties’ responsibilities regarding post-minority support. In paragraph 6 of its October 3, 2001, judgment, the trial court ordered that any provisions of the Missouri divorce judgment or the Tennessee modification judgment that were not modified in its October 3, 2001, judgment would remain in effect. On appeal, the father argues that his postminority-support obligation is not subject to the limitations applicable under Alabama law. See Manring v. Manring, 744 So.2d 919 (Ala.Civ.App.1999). However, the father makes this argument for the first time on appeal. An appellate court’s review is limited to the evidence and arguments raised before the trial court, and it may not consider an argument raised for the first time on appeal. Abbott v. Hurst, 643 So.2d 589 (Ala.1994); Andrews v. Merritt Oil Co., 612 So.2d 409 (Ala.1992). Therefore, we must affirm as to this issue.

We reverse the trial court’s judgment insofar as it pertains to the father’s child-support arrearage and the father’s monthly child-support obligation, and we remand this case for further proceedings consistent with this opinion. In all other respects, the judgment of the trial court is affirmed.

The mother’s request for an attorney fee is denied.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

PITTMAN, J., concurs.

YATES, P.J., concurs in the result.

      . The judgment actually states that the father's child-support obligation would be modified from “February 16, 1995,” but the record indicates that “1995” was a clerical error. The parties testified that the modification of the father's child-support obligation to $781 per month was effective on February 16, 1996. In her brief on appeal, the wife states, for the first time, that the Tennessee modification judgment modified the father's child-support obligation retroactively from February 16, 1995, “which was apparently the date the petition to modify was filed in the State of Tennessee.” (Appellee's brief at 5.) There is no evidence in the record to support that assertion, and that assertion directly contradicts the mother’s affirmative answer to a question asking whether the father was ordered to pay $781 commencing in March 1996.