source: Caselaw Access Project

author: LYONS, Justice.

license: Public Domain

text:
    Charles TUCK, as personal representative of the estate of Virginia Aleene Tuck v. HEALTH CARE AUTHORITY OF the CITY OF HUNTSVILLE d/b/a Huntsville Hospital.
    1011100.
    Supreme Court of Alabama.
    Nov. 27, 2002.

      Jay E. Emerson, Jr., and Robert D. Lee of Higgs & Emerson, Huntsville, for appellant.
    Daniel F. Beasley and Jeffrey T. Kelly of Lanier Ford Shaver & Payne, P.C., Huntsville, for appellee.
   LYONS, Justice.

Charles Tuck, as personal representative of the estate of Virginia Aleene Tuck, appeals from a judgment as a matter of law for Health Care Authority of the City of Huntsville d/b/a Huntsville Hospital (“the Hospital”). We affirm.

Facts and Procedural History

On December 16, 1999, Virginia Tuck was admitted to the Hospital for treatment of respiratory problems and “confusion.” Nurses Connie Cowan and Paul Mizelle cared for Virginia Tuck during her stay. Mizelle testified that he was the admitting nurse for Virginia Tuck on December 16. Mizelle determined that Virginia Tuck was at risk for a fall, and he initiated a fall-management protocol. This protocol called for safety measures, such as explaining the call bell to Virginia Tuck, raising the rails on her bed, and placing the bed in its lowest position.

Cowan testified that on December 17, 1999, she cared for Virginia Tuck for the first time. She placed the call bell within Virginia Tuck’s reach and told her to call for help if she needed anything. Shortly after this conversation, Cowan found Virginia Tuck out of bed despite the fact that the bed rails were still in the raised position. When Cowan found her, Virginia Tuck was hallucinating and she believed that people were in her room. Cowan said that she tried to reorient Virginia Tuck to reality and told her not to get out of bed. Cowan then turned on the “bed-check alarm,” which alerts the nursing staff if a patient gets out of the bed. Around two hours later, Cowan again found Virginia Tuck out of the bed, and she was hallucinating. The bed rails were still raised and the bed-check alarm remained activated. Cowan attempted to reorient Virginia Tuck and to divert her from getting up again. Approximately one and a half hours later, Cowan found Virginia Tuck out of bed. Cowan initiated a restraint protocol.

Cowan, who is trained in the use of patient restraints, testified that she ordered that Virginia Tuck be placed in a belt restraint to prevent her from getting out of bed and possibly injuring herself. A belt restraint is positioned around a patient’s midsection and is less restrictive than wrist or ankle restraints. If the belt restraint moves below the hips or above the chest, it should be reapplied to the area around the midsection. Virginia Tuck did not leave her bed for the rest of Cowan’s shift.

Virginia Tuck’s family testified that throughout their visits on December 16, 17, and 18, Virginia Tuck suffered from hallucinations and she was agitated and fearful. Virginia Tuck’s son, Charles, testified that on December 18 he noticed a cloth strap above Virginia Tuck’s breast. Charles Tuck testified that he had not discussed the use of restraints on his mother with any of the nursing staff.

Mizelle came back on duty and cared for Virginia Tuck at the end of Cowan’s shift on December 18, 1999. Mizelle continued the restraint protocol because Virginia Tuck was cognitively impaired and at risk for injury. Mizelle, like Cowan, had been trained in the selection and use of patient restraints. Mizelle testified that if a patient moved the belt restraint above the breast and below the arms, he would reposition the restraint to the mid-section, but that it would still be effective if located above the breast line. Mizelle testified that a belt restraint would be “inappropriate” if it were located around a patient’s neck.

Mizelle testified that he checked Virginia Tuck every two hours, in accordance with hospital policy, and that during those checks he made sure the belt restraint was in the proper location. Around 5:30 p.m. on December 18,1999, Mizelle found Virginia Tuck sitting on the floor at the foot of her bed; her leg was folded underneath her. Virginia Tuck told Mizelle that she thought the room was on fire, and she apparently had worked her way out of the restraint and had gotten out of the bed and fallen. Mizelle then added wrist and ankle restraints to Virginia Tuck. The on-call doctor examined Virginia Tuck and determined that she had broken her hip in the fall.

On April 10, 2000, Virginia Tuck sued the Hospital for medical malpractice. Subsequently, Virginia Tuck died from unrelated causes, and her son, Charles Tuck, was substituted as the plaintiff in his capacity as the personal representative of Virginia Tuck’s estate. On February 2, 2001, the Hospital filed a motion for a summary judgment. Charles Tuck opposed the motion; his evidence in opposition included an affidavit of his expert witness, Cecilia Cantrell, a former nurse and an administrator at a school of nursing. The Hospital filed a motion to strike the affidavit, and the trial court denied both the Hospital’s motion for a summary judgment and its motion to strike Cantrell’s affidavit.

On October 29, 2001, a jury trial began. On October 31, 2001, the Hospital filed a motion to exclude the testimony of Charles Tuck’s expert witness, Cantrell, on the grounds that she did hot qualify as a similarly situated health-care provider as required by § 6-5-548, Ala.Code 1975, a part of the Alabama Medical Liability Act (“AMLA”). The trial court granted the motion. After this ruling, Tuck’s attorney sought to call Phillip Buchmann, a Hospital employee who provides training in the use of patient restraints, to testify as an expert on the standard of care in applying restraints. Tuck had deposed Buchmann and had submitted his testimony at the summary-judgment stage and had introduced at trial, before the Hospital filed its motion to exclude Cantrell’s testimony, a training video featuring Buchmann. The trial court did not allow Tuck to use Buch-mann as an expert because Tuck had not disclosed Buchmann as an expert witness in accordance with Rule 26(b)(4), Ala. R. Civ. P., in response to the Hospital’s interrogatories. Tuck moved for a mistrial, and the trial court denied the motion. At the close of Tuck’s case, the trial court granted the Hospital’s preverdict motion for judgment as a matter of law (“JML”) and entered a judgment in favor of the Hospital. Tuck filed a motion for a new trial; the trial court denied the motion, and Tuck appealed.

Standard of Review

The standard of review applicable to a JML is the same standard the trial court used in initially deciding the motion. If there was substantial evidence, when viewed in the light most favorable to the plaintiff, to warrant a jury determination then a JML is not proper. City of Birmingham v. Sutherland, 834 So.2d 755 (Ala.2002).

In determining whether the trial court properly precluded a designated expert from testifying under § 6-5-548, we apply the abuse-of-discretion standard of review. See, e.g., Husby v. South Alabama Nursing Home, Inc., 712 So.2d 750 (Ala.1998); Rodgers v. Adams, 657 So.2d 838 (Ala.1995). The abuse-of-discretion standard of review is also applied when evaluating whether the trial court properly precluded an expert from testifying because the expert was not designated in the party’s answers to interrogatories as required by Rule 26, Ala. R. Civ. P. See Coca-Cola Bottling Co. United, Inc. v. Stripling, 622 So.2d 882 (Ala.1993).

Analysis

Tuck first argues that the trial court’s judgment should be reversed because the trial court erred in not granting Tuck’s motion for a mistrial. Tuck filed the motion for a mistrial after the trial court had granted the Hospital’s motion to disqualify Cantrell as an expert witness and had refused to allow Buehmann to testify as an expert witness. Tuck contends that Cantrell’s disqualification was unjust and prejudicial. Tuck points to the trial court’s denial of the Hospital’s motion for a summary judgment and of its motion to strike Cantrell’s affidavit as the basis for what he says was “manifest prejudice” against Tuck created by Cantrell’s subsequent disqualification. In response to the Hospital’s' summary-judgment motion, Tuck submitted Cantrell’s affidavit and curriculum vitae. The curriculum vitae showed that Cantrell has a bachelor of science degree in nursing, a master of science degree in medical-surgical nursing, and a doctor of philosophy degree in medical sociology, social psychology theory development, and psychology. The curriculum vitae also stated, among other things, that she was a professor of sociology and nursing at Georgia State University. The Hospital moved to strike Cantrell’s affidavit on the grounds that she was not a similarly situated health-care provider under § 6-5-548. Section 6-5-548(b) defines “similarly situated health-care provider” as a person who:

“(1) Is licensed by the appropriate regulatory board or agency of this or some other state.
“(2) Is trained and experienced in the same discipline or school of practice.
“(3) Has practiced in the same discipline or school of practice during the year preceding the date that the alleged breach of the standard of care occurred.”

The trial court denied the Hospital’s motion to strike. When Cantrell testified at trial, she testified that she was not similarly situated to Cowan and Mizelle and that she had not been a staff nurse at a hospital in the year preceding Virginia Tuck’s accident in December 1999. The Hospital moved to disqualify Cantrell under § 6-5-548(b), and the trial court granted the motion. Tuck argues that Cantrell should have been deemed qualified to testify as an expert. Tuck points to Rodgers v. Adams, supra, which states:

“The [AMLA] does not require that the defendant health care provider and the expert witness have identical training, experience, or types of practice, or even the same specialities. To be ‘similarly situated,’ an expert witness must be able to testify about the standard of care alleged to have been breached in the procedure that is involved in the case.”

657 So.2d at 842. Tuck also refers to Dowdy v. Lewis, 612 So.2d 1149 (Ala.1992), in which this Court held that the trial court had not erred in admitting the testimony of two nursing-care experts despite the fact that they had not practiced nursing in the year preceding the claim at issue in that case. 612 So.2d at 1152. This Court stated that the nurses were capable of testifying as to the standard of care, because they were both highly qualified individuals who taught nursing and held advanced degrees. Id. Tuck submits that Cantrell’s training, education, and work experience qualify her as an expert and that if Cantrell is not “similarly situated” with Cowan and Mizelle, it is because Cantrell is more qualified than the Hospital’s nurses.

Tuck also contends that because the trial court denied the Hospital’s motion to strike Cantrell’s affidavit, Tuck assumed that Cantrell’s testimony would be allowed into evidence at trial. The trial court’s subsequent disqualification of Cantrell caused him, he says, to suffer “manifest prejudice,” because the trial court did not give any notice that Cantrell would not be qualified to testify at trial. Tuck asserts that the circumstances of Cantrell’s disqualification created a “manifest necessity” for a mistrial as provided in § 12-16-233, Ala.Code 1975, and that the trial court erred in not granting a mistrial and giving him the opportunity to obtain another expert witness to present at retrial.

We are not persuaded by these arguments that the trial court erred in disqualifying Tuck’s expert witness and in not granting a mistrial. For Cantrell to have been qualified as an expert in this case, she needed to be a health-care provider “similarly situated” to Cowan and Mizelle. See Husby v. South Alabama Nursing Home, Inc., 712 So.2d at 753 (stating that when the defendant is not an individual but rather is an entity like the Hospital, “the focus should be on the individual practitioner whose specific action is alleged to have fallen below the standard of care”). Cantrell testified that she had not worked as a staff nurse in a hospital since 1978 and that she had last worked as a nurse in 1992. Cantrell’s role at Georgia State University School of Nursing was administrative; she has not taught nursing courses in a clinical setting since 1978; and she has never used the type of belt restraint that was used on Virginia Tuck. Cantrell testified that she had never written about patient restraints, that she was not an expert on restraints, and that she did not consider herself similarly situated to Cowan and Mizelle in the year preceding Virginia Tuck’s injury. In view of all of the above, it is clear that the trial court properly determined that Cantrell was not a health-care provider similarly situated to Cowan and Mizelle and that she was not qualified to testify as to the standard of care in this case.

Tuck’s assertion that Cantrell is qualified to testify despite her failure to meet the requirements of § 6-5-548 is also unpersuasive. This Court has, in two circumstances, deviated from the requirement that an expert in a medical-malpractice case must have practiced in the same discipline as the individual accused of negligence in the year preceding the alleged negligence. They are: (1) where the expert was highly trained and experienced in the area of practice and (2) where the expert’s work in the year preceding the alleged negligence demonstrated the expert’s competence to testify as to the standard of care. See Health-Trust, Inc. v. Cantrell, 689 So.2d 822, 827 (Ala.1997) (holding that despite the fact that the expert had not worked as an operating-room technician in the previous year, the expert could testify as to the applicable standard of care because he was “highly qualified” and had worked the previous year as the director of medical services for a major hospital); Dowdy, 612 So.2d at 1151-52.

Despite Tuck’s claims to the contrary, Cantrell is not “highly qualified” and experienced in the area of physical restraints. Cantrell testified that she had not received training in patient restraints or taught the use of restraints since the 1970’s, that the standard of care had changed since she received her training in the use of patient restraints, and that she had never used the belt restraint used on Virginia Tuck. Cantrell did not perform work in 1998 that qualified her to testify as to the standard of care used by nurses in selecting, applying, and maintaining restraints on patients. Cantrell does not come within the exceptions recognized in HealthTrust and Dowdy.

Nor is the fact that the trial court denied the Hospital’s motion to strike Cantrell’s affidavit a sufficient justification for finding that the trial court erred in disqualifying Cantrell from testifying as an expert. Tuck cites no caselaw to support his claim that Cantrell’s disqualification prejudiced him and that he was without notice that she would be disqualified because the motion to strike her affidavit had been denied. The Hospital’s arguments in the motion to strike placed Tuck on notice that Cantrell’s qualifications were a potential problem if further discovery of her educational and employment background supported the Hospital’s motion to strike. Cantrell cannot be allowed to testify as an expert, in view of her lack of qualifications, simply because Tuck made an incorrect assumption as to the sufficiency of her credentials.

Tuck next argues that the trial court abused its discretion and prejudiced his case in not ordering a mistrial after it refused to allow Buchmann to testify as an expert. The trial court refused to allow Buchmann to testify because he was not disclosed in Tuck’s answers to the Hospital’s interrogatories as an expert as required by Rule 26, Ala. R. Civ. P. Rule 26(b)(4)(A)(i) provides:

“A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.”

Tuck argues that Buchmann should have been allowed to testify despite Rule 26 because, he says, at the time he responded to the Hospital’s interrogatories, he did not expect to call Buchmann as an expert witness. Tuck attempted to call Buch-mann as a witness only after the trial court refused to allow Cantrell, whom Tuck had designated as an expert witness, to testify. Tuck states that had he known that Cantrell would be disqualified, he would have designated Buchmann in his answers to the interrogatories. Tuck also contends that the deposition testimony of Buch-mann, as the corporate representative of the Hospital, was material and relevant to the applicable standard of care in positioning and maintaining belt restraints. Tuck asserts that a “manifest necessity” for a mistrial was created when the trial court did not let Buchmann testify as to the standard of care. Tuck also argues that allowing Buchmann to testify would not have been an unfair surprise to the Hospital, because Buchmann had already been deposed by Tuck and was featured in a training video that was presented at trial.

Tuck’s arguments are without merit. The trial court did not abuse its discretion in refusing to allow Buchmann to testify as an expert witness and in denying Tuck’s motion for a mistrial. This Court has held that it is not an abuse of discretion to disallow an expert’s testimony when the expert was not timely identified in answers to interrogatories. See, e.g., Coca-Cola Bottling Co. United, Inc. v. Stripling, 622 So.2d at 887-88; CSX Transportation, Inc. v. Battiste, 578 So.2d 1065, 1067-68 (Ala.1991); Electrolux Motor AB v. Chancellor, 486 So.2d 414, 416-18 (Ala.1986). Tuck did not designate Buchmann as an expert witness in response to the Hospital’s interrogatories, as required by Rule 26. Tuck’s assertion that had he known that Cantrell was going to be disqualified he would have designated Buchmann provides no legal basis for finding that the trial court erred or abused its discretion in not allowing Buchmann to testify as an expert, especially where Tuck was on notice that the credentials of the expert he had designated were being vigorously challenged.

In addition, Tuck has made no showing that Buchmann would have met the requirements of § 6-5-548. Even if Buch-mann had met all the requirements, there is no evidence indicating that he would have testified that Cowan and Mizelle had breached the standard of care as to Virginia Tuck. The deposition testimony Tuck points to as addressing the standard of care contains no mention of the standard of care or whether the standard was breached in this case. Tuck’s argument that Buchmann’s admission as an expert would not have constituted an “unfair surprise” to the Hospital because Buchmann had been deposed is also unpersuasive. As mentioned above, Buchmann’s deposition testimony did not give notice as to what his “expert” opinion would have been in this case.

This Court has stated that it will not reverse a trial court’s ruling on a motion for a mistrial “unless it is absolutely clear that its discretion has been abused.” Wright v. Terry, 646 So.2d 11, 14 (Ala.1994). The same circumstances that justified the trial court’s exercise of discretion in not allowing Buchmann to testify also justify the exercise of the trial court’s discretion in denying Tuck’s motion for a mistrial.

Tuck’s final argument is that the trial court erred in granting the Hospital’s motion for a JML. Tuck contends that the Hospital’s expert testimony, provided by Cowan and Mizelle, was sufficient to establish the standard of care. Tuck points to Tant v. Women’s Clinic, 382 So.2d 1120 (Ala.1980), where this Court recognized that a plaintiffs burden of proving the standard of care in a medical-malpractice case can be met by expert testimony of the health-care provider or its employees. Id. Tuck asserts that there is substantial evidence, when viewed in the light most favorable to his position, of the standard of care and of a breach of the standard of care and indicating that the breach was the proximate cause of Virginia Tuck’s injuries. Consequently, Tuck argues that the evidence should have been presented to the jury and asks us to reverse the JML.

Tuck’s argument that the expert testimony of Cowan and Mizelle was sufficient to meet his burden of proof is misplaced. Cowan and Mizelle both testified that the belt restraint was the proper type of restraint to be used on Virginia Tuck, and that they adhered to the required standard of care in all aspects of their treatment of Virginia Tuck. Tuck argues that “neither nurse appeared to be able to articulate exactly what the standard of care is for this situation during [his or her] deposition statement” and that the nurses’ “assertions [that they followed the standard of care] should be weighed against the facts they testified about.” Tuck cannot claim, on the one hand, that Cowan’s and Mi-zelle’s testimony established the standard of care, and, on the other, say that they did not clearly articulate the applicable standard of care. We cannot embrace Tuck’s contention that the testimony of the nurses establishes the standard of care when those same witnesses testified that they did not breach the standard of care.

Tuck also argues that even without expert testimony establishing the standard of care, the trial court erred in granting the Hospital’s motion for a JML. Tuck points to this Court’s decision in Walker v. Southeast Alabama Medical Center, 545 So.2d 769 (Ala.1989). In Walker, this Court stated that expert testimony is not required where “the want of skill or lack of care is so apparent as to be understood by a layman, and only common knowledge and experience are required to understand it.” 545 So.2d at 771. Tuck also refers to Heath v. HealthSouth Medical Center, 851 So.2d 24 (Ala.Civ.App.2002), where the Court of Civil Appeals held that expert testimony was not needed to determine the standard of care required when a nurse failed to respond to a patient’s routine call for assistance. The Court of Civil Appeals stated that under the circumstances of the case, a layperson could determine the standard of care by using his or her own “common knowledge” and “experience.” 851 So.2d at 24. Tuck contends that it was reasonably foreseeable that his mother, in her confused condition, would continue to attempt to leave her bed and that a layperson could understand the standard of care applicable to the routine hospital care used to keep such patients safe, without expert testimony.

This Court recently granted Health-South’s request for certiorari review in Heath. We are today releasing an opinion in Ex parte HealthSouth Corporation, 851 So.2d 33 (Ala.2002), affirming the Court of Civil Appeals’ judgment in Heath and reformulating the applicability of the exception. In HealthSouth, we held:

“A plaintiff need not offer testimony of an expert witness in a medical-malpractice case (a) when the act or omission is in a class of cases ‘ “where want of skill or lack of care is so apparent ... as to be understood by a layman, and requires only common knowledge and experience to understand it,” ’ [Tuscaloosa Orthopedic Appliance Co. v.] Wyatt, 460 So.2d [156,] 161 [ (Ala.1984) ] (quoting Dimoff v. Maitre, 432 So.2d 1225, 1226-27 (Ala.1983)), such as when a foreign object is left in, the wrong body part is operated on, or a call for assistance is ignored for an unreasonable time; or (b) when a plaintiff either relies on ‘ “ ‘a recognized standard or authoritative medical text or treatise,’ ” ’ Anderson[ v. Alabama Reference Labs.], 778 So.2d [806,] 811 [ (Ala.2000) ], or is himself a qualified medical expert.”

851 So.2d at 33. However, the facts of this case are not analogous to those in Health-South and do not fit into this exception, even as reformulated.

We also do not agree with Tuck’s contention that the standard of care in this case would be comprehensible to a layperson, -without expert testimony. This Court has repeatedly held:

“As a general rule, in a medical-malpractice action, the plaintiff is required to produce expert medical testimony to establish the applicable standard of care and a breach of that standard of care, in order to satisfy the plaintiffs burden of proof. See Allred v. Shirley, 598 So.2d 1347, 1350 (Ala.1992) (citing Tuscaloosa Orthopedic Appliance Co. v. Wyatt, 460 So.2d 156,161 (Ala.1984)).”

Anderson v. Alabama Reference Labs., 778 So.2d 806, 811 (Ala.2000). The issue here is whether Cowan and Mizelle breached the standard of care in using, applying, and maintaining the belt restraint on Virginia Tuck. The trial court correctly found that Cantrell, an individual with an extensive nursing-education background, was unqualified to testify as to the applicable standard of care. If Cantrell is inexperienced and lacks knowledge of the proper restraint procedures and applications, it is inconceivable that a layperson, with no nursing background, could determine and understand the appropriate standard of care. In addition, the use of restraints on patients in Virginia Tuck’s condition is not a practice that is considered part of the routine, custodial care of a patient. Compare HealthSouth, where the issue was a 30-minute to one-hour delay in responding to a call for assistance, activity that can be classified as a part of routine, custodial care. We hold that expertise was required in implementing the restraint protocol used by Cowan and Mizelle and that expertise was necessary to determine the applicable standard of care.

Conclusion

We affirm the trial court’s JML for the Hospital. Expert testimony was required in this case, and Tuck cannot use the testimony of Cowan and Mizelle to establish the requisite standard of care. The trial court did not abuse its discretion 1) in disqualifying Cantrell as Tuck’s expert witness; 2) in not allowing Buchmann to be called as an expert witness; and 3) in denying Tuck’s motion for a mistrial.

' AFFIRMED.

HOUSTON, SEE, BROWN, JOHNSTONE, HARWOOD, WOODALL, and STUART, JJ., concur.

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


text:
    LEE L. SAAD CONSTRUCTION COMPANY, INC. v. DPF ARCHITECTS, P.C., et al.
    1010505.
    Supreme Court of Alabama.
    Nov. 27, 2002.
    Rehearing Denied Jan. 31, 2003.

      E.J. Saad of Atchison, Crosby, Saad & Beebe, Mobile, for appellant.
    Philip H. Partridge, Thomas H. Nolan, Jr., and Misty T. Long of Brown, Hud-gens, P.C., Mobile, for appellees DPF Architects, P.C., Lee Turberville, and Richard Mueller.
    John M. Laney, Jr., of Laney & Foster, P.C., Birmingham, for appellees Lee Tur-berville, and Richard Mueller.
    L. Graves Stiff III, J. Scott Dickens, and Catherine R. Steinwinder of Starnes & Atchison, L.L.P., Birmingham, for appel-lees Todd M. Capes and Capes Engineering, Inc.
    Mark E. Spear and David P. Shepherd of Richardson, Spear, Spear & Hamby, P.C., Mobile, for appellee Larry Kerr.
    J. Marshall Gardner of Vickers, Riis, Murray & Curran, L.L.C., Mobile, for ap-pellee H.M. Yonge & Associates, Inc.
   LYONS, Justice.

Lee L. Saad Construction Company, Inc. (“Saad Construction”), appeals from summary judgments against it. We affirm in part and reverse in part.

I. Facts and Procedural History

On October 27, 1997, Saad Construction entered into a contract with the Baldwin County Board of Education (“the Board”) for the construction of an addition to the Spanish Fort Elementary School (“the Spanish Fort project”). DPF Architects, P.C. (“DPF”), was identified in the contract as the architect for the project, but DPF was not a party to the contract between Saad Construction and the Board. The Board and DPF had executed a separate contract in August 1997, under which DPF was to serve as the architect for the Spanish Fort project. DPF’s contract with the Board provided that DPF would act as the Board’s representative regarding the Spanish Fort project. DPF’s project architects for the Spanish Fort project were Lee Turberville and Richard Mueller. DPF hired Todd M. Capes and his company, Capes Engineering, Inc., as the structural engineers for the Spanish Fort project and H.M. Yonge & Associates, Inc., as the project’s electrical engineers.

On March 25, 1999, DPF conducted what was to be a final inspection of the Spanish Fort project. Turberville found a bulge in the lower portion of the eastern wall of the addition. He decided that the remaining work on the job should be stopped, and both Turberville and Mueller ordered Saad Construction to cease all work pending testing on the wall.

According to DPF, the initial testing revealed that the wall was out of plumb. Over Saad Construction’s objections, DPF conducted further testing and those additional tests, which included drilling holes in the wall, showed that the reinforcing steel had not been installed within the wall in accordance with the specifications in the construction contract. At DPF’s request, Capes reviewed the test results and determined that the wall did not meet building-code requirements and did not comply with the specifications in Saad Construction’s contract with the Board. Capes proposed two plans for remedial work on the wall. Turberville asked Saad Construction to fix the wall, implementing one of Capes’s proposals. Saad Construction declined to use either of the plans proposed by Capes to perform the remedial work, and instead proposed a third plan. The Board rejected Saad Construction’s plan and hired another contractor to complete the remedial work.

In April 1999, the Board sued Saad Construction and one of its suppliers, Jim Boothe Contracting & Supply Company (“Boothe Contracting”), seeking a declaratory judgment as to the rights and obligations of the parties under the construction contract and seeking to interplead certain funds it claimed were in dispute between the parties concerning the Spanish Fort project. In its answer to the Board’s complaint, Saad Construction demanded a jury trial on all issues for which a jury trial was appropriate. The Board then filed an amended complaint adding claims against Saad Construction relating to Saad Construction’s work on another construction project at the Rosinton Elementary School, another school under the Board’s supervision (“the Rosinton project”). Shortly thereafter, DPF and Tur-berville moved to intervene in the Board’s action against Saad Construction; the trial court granted their motion.

In its answer to the Board’s amended complaint, Saad Construction raised as an affirmative defense that the Board was contractually obligated to submit disputes related to the construction contract to the Alabama Building Commission. Saad Construction’s contracts with the Board concerning both the Spanish Fort project and the Rosinton project contained identical paragraphs numbered 44; paragraph 44 stated:

“Except as hereinabove provided, any dispute, claim or question concerning the meaning of contract documents, or concerning a breach of the contract, shall be submitted to the Director [of the Alabama Building Commission] and his decision shall be final, binding and conclusive on the parties to the contract. He shall have executive [sic] authority to enforce and make effective such decisions or orders as the Contractor fails to carry out promptly.”

Pursuant to paragraph 44, Saad Construction also filed a motion to compel arbitration “with respect to any dispute, claim, or question concerning the interpretation or meaning of the contract documents, or concerning a breach of the contract, involving Spanish Fort Elementary School and/or Rosinton Elementary School.”

The Board objected to Saad Construction’s motion to compel arbitration. In pertinent part, the Board argued:

“[U]pon provision of the issues Saad desires to arbitrate, it is clear that Saad makes allegations of tort claims. These tort claims of the parties are beyond the scope of the provisions of paragraph 44 and any ‘arbitration’ of this matter pursuant to paragraph 44 will still require the Court to resolve the tort issues between the parties.”

(Emphasis original.) In support of its argument, the Board cited decisions of this Court to the effect that a party may be required to submit to arbitration only those issues it has specifically agreed to arbitrate. The Board continued:

“By its very terms, the language of paragraph 44 only relates to questions concerning the interpretation or meaning of the contract documents or concerning a breach of the contract. The allegations of Saad that the Board has engaged in wrongful conduct and is responsible for the acts of the architect by respondeat superior and is guilty of a trespass and has engaged in ‘wrongful acts and/or negligence’ are all allegations of tortuous [sic] conduct which are not subject to resolution by the Director pursuant to the language of paragraph 44.”

The Board attached to its objection to the motion to compel arbitration a letter from the director of the Alabama Building Commission (“the director”) dated June 4, 1999, addressing the scope of his decisions as arbitrator. The director stated: “Please understand that I will not hear matters that are being decided in court.” The director continued:

“Based on the correspondence that I am presently receiving from you, it appears that I should clarify the scope of decisions rendered by the Director. The Director does not determine a correct or acceptable remedy to an alleged or proven deficiency, but will determine whether work directed by an owner or design professional is for the account of the contractor or the owner.”

On July 26, 1999, Saad Construction filed a supplemental motion to compel arbitration; the motion stated:

“Saad Construction insists on arbitration of appropriate issues between Saad Construction and the Board in accordance with the appropriate provisions of the Rosinton and Spanish Fort Contracts. Saad Construction has never and does not now consent to arbitration of issues between the contractor, Saad Construction, and the architect, DPF, or any other person who is not a party to the Rosinton and Spanish Fort Contracts’ arbitration provisions. There is no contract containing an arbitration provision requiring arbitration between Saad Construction and any person other than the Board, which said contract is applicable to the Rosinton Project and/or the Spanish Fort Project.”

The trial court granted Saad Construction’s motion to compel arbitration with the Board. Its order stated:

“The defendant’s motion to compel arbitration as provided for in paragraph 44 of the contract is granted to the extent set out in this contract. All proceedings in this court are stayed pending said arbitration.”

Before the arbitration hearing, both Saad Construction and the Board submitted their claims to the director. In its submission to the director, Saad Construction argued:

“1. [T]he Board authorized and/or ratified the conduct of the Architect who wrongfully seized the building and declared the building to be ‘structurally unsound.’ The conduct of the Board, directly and/or by its Architect constituted a breach of contract....
“2. [T]he Board, directly and/or through its Architect, conducted a series of destructive tests on the eastern interi- or walls.... These tests were [conducted] after [those] walls had been accepted, without exception.... The Board has demanded that Saad pay for the testing. Saad contends that the Board is responsible for the cost of the tests.... Saad also claims that the conduct of the Board, directly and/or through its Architect, delayed and prevented Saad from expeditious completion of punch-list items....
“3.... Saad contests the existence of any deficiency meriting remedial work on the subject wall. Saad protested the failure and refusal of the Board to provide information requested concerning the design, engineering and evaluation of the subject wall and information concerning the details of the justification for the demanded remedial action. Saad appealed the Board’s demand for remedial work to the Director in accordance with the terms of the contract. Within days of the appeal, the Board insisted that Saad go forward with the remedial work notwithstanding the existence of the appeal. On Thursday June 10, 1999, and acting under protest, Saad acceded to the Board’s demand and agreed to go forward with the work beginning Monday, June 14, 1999. On Friday June 12, 1999,[] the Board gave notice that Saad would not be allowed to do the remedial work and that the Board would move forward using a different contractor, while seeking to collect the cost from Saad. The Board also demanded that Saad surrender the keys to the building to the Board. Saad appealed the Board’s decision to the Director on June 13,1999....
“7. There exists a change order of $14,408.50 for a change of the power connection from overhead to underground. Saad had substantially completed the installation of this overhead power before the Board, through its Architect, demanded that the overhead installation be removed and an underground installation be constructed. Saad contends that the contract documents, when reasonably and properly read, call for overhead power. Saad also contends that the Board, by its conduct and that of its Architect, is es-topped to deny the propriety of the overhead installation of the power....
“10. Saad claims the additional general conditions of approximately $125,000 caused by the wrongful acts and/or negligence of the Board, directly and/or through its Architect.
“11. Saad claims the cost overruns of approximately $250,000 on this Project caused by the wrongful acts and/or negligence of the Board, directly and/or through its Architect.
“14. Saad claims that the conduct of the Board, directly and/or through its Architect, has been such as to cause increased cost in the performance of the work. The Board has acted and has allowed and/or authorized the Architect to act in violation of the requirements for professional services. The conduct of the Board, directly and/or through its Architect, has been done in such a manner as to impede and prevent Saad from the timely and proper completion of the work. As a result ... Saad claims that it is excused from responsibility for the delay and other problems, if any there be, and that the Board is liable for breach of contract.”

The Board claimed in its submission to the director that Saad Construction had breached the contract.

Saad Construction also submitted to the director an extensive document entitled “Statement of Facts and Position of Contractor,” in which Saad Construction elaborated on its claims and responded to the Board’s breach-of-contract claim. Saad Construction argued, among other things, that parties other than the Board had committed various wrongful acts and omissions acting on behalf of the Board; therefore, it argued, Saad Construction did not breach the contract. Saad Construction also claimed that neither DPF nor Capes performed the required inspections earlier in the project. Saad Construction also quoted Capes’s deposition testimony in which he stated that the out-of-plumb condition of the wall did not necessitate the requested remedial work. Pursuant to an agreement between Saad Construction and the Board, contract issues concerning the Ros-inton project were not presented to the director. Before the arbitration hearing, the director prepared an agenda that included all of the claims submitted by Saad Construction and the Board.

The director conducted an arbitration hearing between Saad Construction and the Board on June 27, 28, and 29, 2000. There is no transcript of that arbitration hearing. On July 14, 2000, the director issued his decision, which consisted of a list of the claims made by Saad Construction and the Board with a note beside each claim, “Award” or “No Award.” The director did not explain his reasons behind the decision. The director noted “no award” concerning both parties’ claims related to the remedial work on the wall. The director made an award for Saad Construction on its claims for the changes to the overhead electrical installations and also made awards to Saad Construction for weather-related delays and for the addition of fire dampers that were also the subject of a dispute between the parties. The director made awards to the Board for remedial work performed by the remedial-work contractor unrelated to the wall, “future remedial work,” and liquidated damages under the contract. The director made no award concerning any of Saad Construction’s other claims. Both the Board and Saad Construction satisfied the awards.

In September 2000, Saad Construction filed a cross-claim against DPF and Tur-berville and a third-party complaint against Mueller, Capes, Capes Engineering, Yonge & Associates, and Larry Kerr, a former employee of Saad Construction who worked on the Spanish Fort project. In count one, Saad Construction alleged “Breach of Contract, Innocent, Negligent, Wilful, Wanton, and/or Intentional Misrepresentation and Suppression of Material Facts.” Specifically, Saad Construction alleged that DPF, Turberville, Mueller, and/or Yonge & Associates withheld from Saad Construction information regarding changes ordered by the Alabama Building Commission to the “plans and specifications” for the Spanish Fort project. In count two, Saad Construction alleged that DPF, Turberville, Mueller, and Yonge & Associates “knew or should have known that the written specifications called for overhead electric service installation, while the drawings referred to underground installation of the electric service.” Saad Construction alleged that DPF, Turber-ville, Mueller, and Yonge & Associates “acted negligently, wilfully, wantonly, recklessly and/or intentionally by providing incorrect information and/or by representing that an overhead electric service connection was called for and/or permitted in the construction of the Spanish Fort project.” In count three, Saad Construction alleged that DPF, Turberville, Mueller, and Yonge & Associates knew or should have known that the plans and specifications did not call for fire dampers even though Saad Construction’s contract with the Board did call for fire dampers, and that those defendants withheld their knowledge about this discrepancy from Saad Construction. In count four, Saad Construction alleged that DPF, Turber-ville, Mueller, and Yonge & Associates issued a notice to proceed with the Spanish Fort project binding Saad Construction to performance, even though those defendants had failed to secure proper authorization for the project from the City of Spanish Fort.

In count five, Saad Construction alleged that DPF, Turberville, Kerr, Mueller, Capes, and Capes Engineering intentionally interfered with Saad Construction’s contractual relationship with the Board. Saad Construction also alleged that these defendants “acted negligently, wantonly, intentionally, and/or maliciously and oppressively” resulting in injury to Saad Construction, and that they engaged in a civil conspiracy against Saad Construction. Saad Construction specifically alleged that Turberville, Mueller, and Kerr “engaged in a scheme to destroy [Saad Construction] and to interfere with its contractual relationship with the Board.” Saad Construction alleged that Kerr violated his fiduciary duty as an employee of Saad Construction by furnishing information concerning Saad Construction to DPF, Turberville, and Mueller for purposes contrary to the interest of Saad Construction, and by failing to perform assigned tasks despite reporting to Saad Construction that those tasks had been performed. Saad Construction further alleged that DPF, Turberville, and Mueller used their position as architect for the Spanish Fort project to prevent Saad Construction from properly and timely performing its contract with the Board and to increase the costs of performance. Saad Construction also alleged that DPF, Turberville, and Mueller knowingly “made false, slanderous and defamatory statements about the quality of work performed by Saad” by stating that the addition to the school was unsafe, and that DPF, Turberville, Mueller, Capes, and Capes Engineering continued to assert that the addition was unsafe despite actual knowledge that that claim was not supported. Finally, Saad Construction alleged that DPF, Turberville, Mueller, Capes, Capes Engineering, and Yonge & Associates frustrated Saad Construction’s efforts to resolve its claims with the Board by making false claims about the project and by creating “false and overstated invoices for the cost of alleged remedial work on the Project.”

The trial court dismissed the Board and realigned the parties to identify Saad Construction as the plaintiff and the other remaining parties as defendants. The dismissal of the Board also resulted in the dismissal of Boothe Contracting as a party because the only claims against Boothe Contracting were those alleged by the Board. DPF, Turberville, Mueller, Capes, and Capes Engineering subsequently filed motions for a summary judgment. The trial court entered summary judgments in favor of those parties, stating: “The Court is of the opinion that all issues are or were covered by arbitration. All motions for summary judgment are granted.” Kerr and Yonge & Associates then filed motions for a summary judgment; the trial court also entered summary judgments in their favor. Saad Construction appeals.

II. Standard of Review

We review a trial court’s ruling on a summary-judgment motion de novo. Verchot v. General Motors Corp., 812 So.2d 296, 299 (Ala.2001); Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988). “Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant.” Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997).

III. Preclusive Effect of the Arbitration Proceeding

Saad Construction argues that the trial court erred in entering the summary judgments for DPF, Turberville, Mueller, Capes, Capes Engineering, Kerr, and Yonge & Associates (hereinafter referred to collectively as “the appellees”) because none of the appellees were parties to the arbitration proceeding and because the claims made by Saad Construction in the arbitration proceeding are not identical to the claims made by Saad Construction in its action against the appellees.

The appellees argue that the summary judgments in their favor are proper because, they argue, Saad Construction’s claims were barred by the doctrines of “collateral estoppel and/or res judicata” because they were decided in the arbitration proceeding.

Both collateral estoppel and res judicata are affirmative defenses; thus, the party raising the defense has the burden of proving each element. Rule 8(c), Ala. R. Civ. P.; Wal-Mart Stores, Inc. v. Smitherman, 743 So.2d 442, 448 (Ala.1999); Ex parte Aratex Servs., Inc., 622 So.2d 367, 368 (Ala.1993). In Alabama, the “ ‘doctrines of [res judicata and collateral estoppel] apply as well to awards in arbitration as they do to adjudications in judicial proceedings.’ ” Old Republic Ins. Co. v. Lanier, 790 So.2d 922, 928 (Ala.2000) (quoting American Ins. Co. v. Messinger, 43 N.Y.2d 184, 189-90, 371 N.E.2d 798, 801, 401 N.Y.S.2d 36, 39 (1977)). See also Ex parte Messer, 797 So.2d 1079, 1085 (Ala.2001).

A. Res Judicata Argument

Res judicata and collateral estop-pel are two closely related, judicially created doctrines that preclude the relitigation of matters that have been previously adjudicated or, in the case of res judicata, that could have been adjudicated in a prior action.

“The doctrine of res judicata, while actually embodying two basic concepts, usually refers to what commentators label ‘claim preclusion,’ while collateral es-toppel ... refers to ‘issue preclusion,’ which is a subset of the broader res judicata doctrine.”

Little v. Pizza Wagon, Inc., 432 So.2d 1269, 1272 (Ala.1983) (Jones, J., concurring specially). See also McNeely v. Spry Funeral Home of Athens, Inc., 724 So.2d 534, 537 n. 1 (Ala.Civ.App.1998). In Hughes v. Martin, 533 So.2d 188 (Ala.1988), this Court explained the rationale behind the doctrine of res judicata:

“Res judicata is a broad, judicially developed doctrine, which rests upon the ground that public policy, and the interest of the litigants alike, mandate that there be an end to litigation; that those who have contested an issue shall be bound by the ruling of the court; and that issues once tried shall be considered forever settled between those same parties and their privies.”

533 So.2d at 190. The elements of res judicata are

“(1) a prior judgment on the merits, (2) rendered by a court of competent jurisdiction, (3) with substantial identity of the parties, and (4) with the same cause of action presented in both actions.”

Equity Res. Mgmt., Inc. v. Vinson, 723 So.2d 634, 636 (Ala.1998). “If those four elements are present, then any claim that was, or that could have been, adjudicated in the prior action is barred from further litigation.” 723 So.2d at 636. Res judica-ta, therefore, bars a party from asserting in a subsequent action a claim that it has already had an opportunity to litigate in a previous action.

The corollary to the above-stated rationale is that the doctrine of res judica-ta will not be applied to bar a claim that could not have been brought in a prior action. Old Republic, supra, 790 So.2d at 928. See also United States v. Maxwell, 189 F.Supp.2d 395, 406 (E.D.Va.2002); Restatement (Second) of Judgments, § 26(l)(c) (1982), Restatement (Second) of Judgments, § 51(l)(a). “In order for a judgment between the same parties to be res judicata, it must, among other things, ... involve a question that could have been litigated in the former cause or proceeding.” Stephenson v. Bird, 168 Ala. 363, 366, 53 So. 92, 93 (1910). See also Dekle v. Vann, 284 Ala. 142, 223 So.2d 30 (1969), in which this Court held that a prior judgment in equity ordering the defendants to open a wall adjacent to the plaintiffs land was not res judicata in a subsequent action seeking damages for trespass, because the equity court lacked jurisdiction to award punitive damages.

When deciding whether an arbitrator’s award is res judicata as to a subsequent claim, we must also consider whether the claim was within the scope of the submission to the arbitrator. Old Republic, 790 So.2d at 929; Restatement (Second) of Judgments, § 26(l)(c); Restatement (Second) of Judgments, § 84, comment d. (“A preliminary question in giving res judicata effect to an arbitration award is whether the claim or issue was within the scope of the reference to arbitration.”). Because an arbitrator’s jurisdiction is limited to the scope of the submission, claims not within the scope of the submission are not barred by the doctrine of res judicata in a subsequent action. Old Republic, 790 So.2d at 929-30; Restatement (Second) of Judgments, § 26(l)(c). In Old Republic, we held that a prior arbitration award on claims alleging fraud and breach of contract was res judicata as to two claims against the same defendant for tortious interference with a subagency contract. We held that the plaintiffs tortious-interference claims, albeit labeled differently in the subsequent civil action, arose from the same “nucleus of operative facts” as did the fraud and breach-of-contract claims. 790 So.2d at 933. However, we also held that the tor-tious-interference claims were “ ‘within the scope of the submission’ to arbitration.” 790 So.2d at 929 (quoting Fink v. Golenbock, 238 Conn. 183, 196, 680 A.2d 1243, 1252 (1996)). This holding was critical to the result in Old Republic, because had those claims not been “within the scope of the submission,” the arbitrator would have lacked subject-matter jurisdiction over those claims and the arbitrator’s decision, therefore, would not have been res judica-ta as to those claims. (“[T]he issue in this case is ... whether the claims Lanier litigated ‘were within the scope of the submission’ to arbitration.”) 790 So.2d at 929. See also Restatement (Second) of Judgments, § 26(l)(c); Restatement (Second) of Judgments, § 84, comment d.

Saad Construction’s tort claims were not within the scope of the submission to arbitration. The trial court ordered arbitration “to the extent set out in [paragraph 44 of the Board/Saad Construction] contract.” The arbitration clause provided for arbitration of “any dispute, claim or question concerning the meaning of contract documents, or concerning a breach of the contract.” The director explained that in the arbitration proceeding he would “determine whether work directed by an owner or design professional is for the account of the contractor or the owner.” It is also instructive that the Board, the other party to the contract containing the arbitration provision at issue, objected to Saad Construction’s motion to compel arbitration, arguing that Saad Construction’s tort claims “are beyond the scope of the provisions of paragraph 44 and any ‘arbitration’ of this matter pursuant to paragraph 44 will still require the Court to resolve the tort issues between the parties.” (Emphasis in Board’s objection.)

“A party to a contract can be forced to arbitrate only those issues he or she specifically agrees to submit to arbitration.” Ryan Warranty Servs., Inc. v. Welch, 694 So.2d 1271, 1273 (Ala.1997). Whether the parties agreed to submit certain claims to arbitration requires a determination of the intent of the parties. Id. “General rules of contract interpretation require that the intent of the parties be derived from the words of the contract, unless an ambiguity exists.” 694 So.2d at 1273. The arbitration clause in Saad Construction’s contract with the Board was unambiguously limited to matters concerning interpretation of the contract or a breach of the contract. The limiting language of the arbitration clause did not encompass Saad Construction’s tort claims against the appellees; thus, those claims were not within the scope of submission to arbitration. Additionally, the appellees presented no evidence indicating that the director possessed the authority to award Saad Construction all the damages it now seeks. Res judicata will not apply to bar a subsequent action for a remedy that was not available in a prior action. Dekle, supra, 284 Ala. at 144, 223 So.2d at 31; Restatement (Second) of Judgments, § 26(l)(c). Because the director lacked subject-matter jurisdiction over Saad Construction’s tort claims and could not award punitive damages, res judicata does not bar Saad Construction from asserting those claims in a subsequent action. Old Republic, 790 So.2d at 929-30; Restatement (Second) of Judgments, § 26.

Moreover, the appellees offered no evidence indicating that Saad Construction could have asserted in the arbitration the claims it now asserts against them. The Board and Saad Construction were the only signatories to the contract containing the arbitration provision, and the Board and Saad Construction were the only parties that actually participated in the arbitration. The arbitration provision explicitly stated that the director’s decision “shall be final, binding and conclusive on the parties to the contract.” (Emphasis added.) “[T]he doctrine of estoppel operates to prevent a signatory to an arbitration agreement from frustrating arbitration of a related claim against a nonsignatory where the nonsignatory seeks arbitration.” Ex parte Tony’s Towing, Inc., 825 So.2d 96, 98 (Ala.2002).

There is no evidence in the record indicating that DPF, Turberville, Mueller, Capes, Capes Engineering, Yonge & Associates, or Kerr sought to join the arbitration or that they were even willing to participate in the arbitration of Saad Construction’s claims against them. DPF, Turberville, and Mueller argue that they did not seek to intervene in the arbitration because, they said, Saad Construction had already indicated that it did not intend to arbitrate its claims against them. However, there is no factual basis in the record for the implication by those appellees that, in the absence of Saad Construction’s objections, they would have sought to intervene. For all that appears, the Board — a signatory to the arbitration clause — or the arbitrator would have objected to the join-der of any of the appellees in the arbitration.

The appellees had the burden of proving that Saad Construction could have arbitrated its tort claims against them. Rule 8(c), Ala. R. Civ. P.; Smitherman, supra, 743 So.2d at 448. Saad Construction could not have done so without the appellees’ cooperation. Because the appellees did not satisfy their burden of proving that Saad Construction could have arbitrated its tort claims against them, res judicata does not apply to bar Saad Construction from subsequently asserting its tort claims against the appellees.

As this Court has previously recognized:

“ ‘[T]he relevant federal law requires piecemeal resolution when necessary to give effect to an arbitration agreement. Under the Arbitration Act, an arbitration agreement must be enforced notwithstanding the presence of other persons who are parties to the underlying dispute but not to the arbitration agreement.’ ”

Terminix Int’l Co. v. Jackson, 669 So.2d 893, 897 (Ala.1995) (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 20, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) (footnote omitted; emphasis in Moses H. Cone)). Because we hold that the appellees have not met their burden of proving that Saad Construction could have brought its tort claims against them in the arbitration, we need not determine whether the other elements necessary for the application of res judicata are present.

B. Collateral Estoppel Argument

Although Saad Construction could not have asserted its tort claims against the appellees before the director, collateral estoppel might still apply to prevent Saad Construction from relitigating factual issues common to its claims against the ap-pellees that have already been determined by the director if the elements of collateral estoppel are satisfied. Abramson v. Pennwood Inv. Corp., 392 F.2d 759, 762 (2d Cir.1968); Cream Top Creamery v. Dean Milk Co., 388 F.2d 358, 362-63 (6th Cir.1967); Restatement (Second) of Judgments, § 26, Reporter’s Note to comment c(l). After holding that the doctrine of res judicata did not bar federal claims over which the state court in the prior action lacked jurisdiction, the United States Court of Appeals for the Second Circuit in Abramson further held: “Of course, where both the state and federal suits are based on the same transactions, collateral estop-pel would apply with regard to the facts determined in the state action.” 392 F.2d at 762. Thus, although the prior adjudication in the arbitral forum would not, under the doctrine of res judicata, bar Saad Construction’s claims against the appellees, the doctrine of collateral estoppel might nonetheless apply if the requirements for that doctrine are satisfied.

For the doctrine of collateral estoppel to apply, the following elements must be established:

“ ‘(1) that an issue in a prior action was identical to the issue litigated in the present action; (2) that the issue was actually litigated in the prior action; (3) that resolution of the issue was necessary to the prior judgment; and (4) that the same parties are involved in the two actions.’
“Smith v. Union Bank & Trust Co., 653 So.2d 933, 934 (Ala.1996). ‘ “Where these elements are present, the parties are barred from relitigating issues actually litigated in a prior [action].” ’ Smith, 653 So.2d at 934 (quoting Lott v. Toomey, 477 So.2d 316, 319 (Ala.1985)).”

Biles v. Sullivan, 793 So.2d 708, 712 (Ala.2000). “Only issues actually decided in a former action are subject to collateral es-toppel.” Leverette ex rel. Gilmore v. Leverette, 479 So.2d 1229, 1237 (Ala.1985) (emphasis added). The burden is on the party asserting collateral estoppel to prove that the issue it is seeking to bar was determined in the prior adjudication. See Adams v. Sanders, 811 So.2d 542, 545 (Ala.Civ.App.2001) (“Because we have no transcript of the trial in the district court, the burden is on Sanders to show that the district court determined that he was not negligent.”). See also United States v. Cala, 521 F.2d 605, 608 (2d Cir.1975) (“The burden ... is on [the one asserting collateral estoppel] to establish that the issue he seeks to foreclose from litigation in the present prosecution was necessarily decided in his favor by the prior verdict.”).

The appellees have not satisfied their burdens of proof as to their affirmative defense of collateral estoppel. As previously noted, one who claims the defense of collateral estoppel must prove, among other things, that the issue was “actually decided,” Leverette, 479 So.2d at 1237, and “that resolution of the issue was necessary to the prior judgment,” Biles, 793 So.2d at 712. Moreover, because we are reviewing a summary judgment, we “must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant.” Hobson, supra, 690 So.2d at 344.

The director did not explain the rationale for his arbitration decisions, and he made no specific findings of fact. Instead, he merely entered the words “Award” or “No Award” next to each of the claims made by Saad Construction and the Board. The mere entries of “No Award” on Saad Construction’s claims against the Board, which included allegations of misconduct by the appellees, does not necessitate a finding that the arbitrator resolved against Saad Construction its arguments concerning the appellees’ alleged misconduct. The appellees have not met their burden of proving that the arbitrator actually decided that the appellees were not responsible for Saad Construction’s damage or “that resolution of the issue was necessary to the prior judgment.” Biles, 793 So.2d at 712. Because we hold that the appellees did not satisfy their burden of proving that the director actually decided that the appellees did not commit the wrongful acts Saad Construction alleged, we need not consider whether the appellees satisfied their burdens of proof as to the other elements of collateral estoppel.

C. Satisfaction-of-Judgments Argument

The appellees also argue that the summary judgments should be affirmed because Saad Construction was awarded judgments by the director and those judgments have been satisfied. Although the trial court entered the summary judgments based upon its conclusion that “all issues are or were covered by arbitration,” our review is not limited to that reasoning, and we may affirm the summary judgments if they are proper for any reason supported by the record. Smith v. Equifax Servs., Inc., 537 So.2d 463 (Ala.1988).

“It has long been the law in Alabama that a person can sue any number of parties, obtain a judgment against any one, or several of them, but can gain but one satisfaction.” Mobile Ins., Inc. v. Smith, 441 So.2d 894, 896 (Ala.1988). “Once the judgment has been satisfied for a single injury, no other suits by the plaintiff against any tort-feasor are permitted in regard to the same injury.” Ex parte Rudolph, 515 So.2d 704, 708 (Ala.1987). Moreover, a judgment awarding damages to an injured person in one proceeding acts as a limitation on the amount of damages that might be recovered in a subsequent proceeding against others responsible for the injury. Restatement (Second) of Judgments, § 51(2)(a). However, if “[t]here were limitations on the competence of the forum in the first action preventing him from obtaining the full measure of his damages, as stated in § 26(l)(c), [Restatement (Second) of Judgments ],” then the injured party may still be entitled to seek those damages unavailable to him in the first action. Id.

In count two of its cross-claim/ third-party complaint, Saad Construction alleged that DPF, Mueller, Turberville, and Yonge & Associates knew or should have known that the written specifications for the Spanish Fort project called for electrical service connections to be installed overhead while the drawings referred to underground installation, but that they nevertheless permitted and/or affirmatively instructed Saad Construction to install the connections overhead. In its submission to the director, Saad Construction argued that DPF permitted Saad Construction to complete the electrical service connections overhead. Saad Construction also argued that Yonge & Associates directed Saad Construction’s subcontractor to install the electrical service connections overhead. Saad Construction argued that only after the connections were completed did DPF insist that the electrical service connections should be installed underground. Saad Construction argued that “DPF either failed to inspect or concealed its findings about the overhead system .... ” Saad Construction further argued that either the failure or the concealment was attributable to the Board.

In count three, Saad Construction alleged that DPF, Turberville, Mueller, and Yonge & Associates knew or should have known that Saad Construction’s contract with the Board required the installation of fire dampers, but that the plans and specifications for the project did not call for fire dampers. Saad Construction further alleged that DPF, Turberville, and Yonge & Associates “remained silent and allowed [Saad Construction] to act to its detriment by performing certain construction on the Spanish Fort Project without installing dampers.”

On both of those claims, Saad Construction sought “economic damages, including and not limited to, delay in the work, increased overhead, increased cost of performance, interruption of work progress, damage to Saad Construction’s reputation, unnecessary disruption of the work of subcontractors and other damages.” Saad Construction also sought punitive damages.

In the arbitration, the director awarded Saad Construction $11,211 and a 10-day extension for the completion of the project on its claims related to changes in the electrical service connections. The director also awarded Saad Construction $3,022 and a 14-day extension for the completion of the project on Saad Construction’s claims related to the fire dampers. It is uncontroverted that the Board satisfied the director’s awards to Saad Construction. However, as the director explained the scope of his decisions:

“The Director does not determine a correct or acceptable remedy to an alleged or proven deficiency, but will determine whether work directed by an owner or design professional is for the account of the contractor or the owner.”

Certain damages were unavailable to Saad Construction in the arbitration. Thus, Saad Construction is not foreclosed from seeking in its subsequent action against the appellees those damages it could not have recovered in the arbitration. Restatement (Second) of Judgments, § 51(2)(a); see also Dekle, supra, 284 Ala. at 144, 223 So.2d at 31.

TV. Separate Argument of Capes and Capes Engineering

Finally, we address a separate argument made by only Capes and Capes Engineering. In addition to arguing that the trial court should enter a summary judgment in their favor because the arbitration barred Saad Construction’s claims, Capes and Capes Engineering also presented to the trial court Capes’s sworn affidavit addressing the merits of Saad Construction’s claims. In his affidavit, Capes denied that DPF requested that either he or Capes Engineering form any opinions or recommendations concerning the termination of the Board’s contract with Saad Construction. Capes also stated that all services he performed were in accordance with the applicable standard of care. Capes denied that he made any false claims concerning the project, created any false or overstated invoices for the cost of the remedial work, or created or approved any false or fraudulent damage claims associated with the Spanish Fort project.

Capes’s affidavit was sufficient to shift to Saad Construction the burden to produce substantial evidence in support of its claims against Capes and Capes Engineering. Anderson v. Alabama Reference Labs., 778 So.2d 806, 811 (Ala.2000). Saad Construction presented no evidence creating a genuine issue of material fact concerning its claims against Capes or Capes Engineering. “In opposing a motion for summary judgment, the nonmovants cannot merely rely on the allegations in their complaint.” Rhodes v. General Motors Corp., 621 So.2d 945, 949 (Ala.1993). Thus, Capes and Capes Engineering were entitled to a summary judgment. Smith, 537 So.2d at 463.

V. Conclusion

We affirm the summary judgments in favor of Capes and Capes Engineering, but reverse the summary judgments in favor of DPF, Turberville, Mueller, Yonge & Associates, and Kerr, and we remand the case for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . In March 1999, Saad Construction sued the Board, DPF, Turberville, and Mueller in the Mobile Circuit Court alleging breach of contract and intentional interference with the contract. Saad Construction also sought a temporary restraining order or an injunction mandating the return of the Spanish Fort project to it and ordering the Board, DPF, Turberville, and Mueller to stop interfering with Saad Construction’s performance under its contract with the Board. Saad Construction voluntarily dismissed that action pursuant to Rule 41, Ala. R. Civ. P., on May 13, 1999.

      . The Board cited Ryan Warranty Services, Inc. v. Welch, 694 So.2d 1271 (Ala.1997); Allied-Bruce Terminix Cos. v. Dobson, 684 So.2d 102 (Ala.1995); and Old Republic Insurance Co. v. Lanier, 644 So.2d 1258, 1261 (Ala.1994).

      . June 12, 1999, was a Saturday, not a Friday. However, whether that date was a Friday or a Saturday is not material to our decision in this case.

      . Section 26(l)(c) of the Restatement (Second) of Judgments states:
      "(1) When any of the following circumstances exists, the general rule of § 24 does not apply to extinguish the claim, and part or all of the claim subsists as a possible basis for a second action by the plaintiff against the defendant:
      "(c) The plaintiff was unable to rely on a certain theory of the case or to seek a certain remedy or form of relief in the first action because of the limitations on the subject matter jurisdiction of the courts or restrictions on their authority to entertain multiple theories or demands for multiple remedies or forms of relief in a single action, and the plaintiff desires in the second action to rely on that theory or to seek that remedy or form of relief."

      . Section 51(l)(a) of the Restatement (Second) of Judgments states:
      "(1) A judgment against the injured person that bars him from reasserting his claim against the defendant in the first action extinguishes any claim he has against the other person responsible for the conduct unless:
      "(a) The claim asserted in the second action is based upon grounds that could not have been asserted against the defendant in the first action.”

      . The reporter’s note to comment c(l) of § 26 states:
      “When the plaintiff, after having lost a state action, seeks relief with respect to the same transaction under a federal statute enforceable only in federal court, it may be argued that he should be held barred especially if he could have instituted his original suit in federal court where both federal and state grounds could have been considered. ... It appears sounder, however, not to preclude the federal action by the doctrine of bar, but rather to allow a carry-over decided issue from the state to the federal action by way of issue preclusion ...."

      (Emphasis added.) In other words, although res judicata does not bar claims over which the first court lacked jurisdiction, the first court’s decisions on issues common to those before the second court may be "carried over” and given binding effect in the second court by the application of the doctrine of collateral estoppel.

      . The comments to Restatement (Second) of Judgments, § 51, include the following discussion:
      "d. Preclusion as to amount of damages (Subsection (2)). A judgment for the injured person, even though favorable to him on the question of liability, is adverse to him insofar as it determines that his damages did not exceed those awarded. It is therefore ordinarily conclusive as a ceiling on the damages that may be recovered in the second action. However, there are circumstances in which he would be able to maintain a claim for additional damages against the original defendant. See § 26(l)(c).... When those circumstances exist, his first recovery should not limit the damages he may recover in an action against the other obligor....”

        The Restatement then provides the following illustration:
      "7. P is injured as the result of the deliberate act of S, who is M's employee. P brings an action against M, the applicable law limiting his recovery to compensatory damages. P obtains judgment for $10,000. In a subsequent action against S, P may obtain judgment for no more than $10,000 in compensatory damages but is not precluded from recovering punitive damages.”


author:
YATES, Presiding Judge.
     PITTMAN, Judge,

text:
    DRUMMOND COMPANY, INC. v. Terry HIGGINBOTHAM.
    2000722.
    Court of Civil Appeals of Alabama.
    May 3, 2002.
    Rehearing Denied July 12, 2002.
    Certiorari Denied Dec. 13, 2002 Alabama Supreme Court 1012028.

      Edward R. Jackson of Tweedy, Jackson, Beech & Fikes, Jasper, for appellant.
    Robert T. Wilson, Jr., and Patricia Frederick of Wilson & Wilson Attorneys & Counselors, P.C., Jasper, for appellee.
   YATES, Presiding Judge.

Terry Higginbotham sued his employer, Drummond Company, Inc., on December 29, 1997, seeking to recover workers’ compensation benefits for an injury he sustained to his lower back in September 1996, during the course of his employment with Drummond. Drummond answered on January 15, 1998, denying the allegations. On May 26, 1998, Higginbotham amended his complaint to allege a hearing loss caused by a continuous exposure to dangerous and hazardous levels of noise during the course of his employment with Drummond. On November 19, 1998, Drummond answered Higginbotham’s amended complaint, raising as a defense the statute of limitations. Following an ore tenus proceeding, the trial court, on March 1, 2001, entered a judgment finding that Higginbotham had suffered a 100% loss of earning capacity and that he was 100% permanently and totally disabled. Drummond appeals.

This case is governed by the 1992 Workers’ Compensation Act. This Act provides that an appellate court’s review of the standard of proof and its consideration of other legal issues shall be without a presumption of correctness. § 25 — 5—81(e)(1), Ala.Code 1975. It further provides that when an appellate court reviews a trial court’s findings of fact, those findings will not be reversed if they are supported by substantial evidence. § 25 — 5—81(e)(2). Our supreme court “has defined the term ‘substantial evidence,’ as it is used in § 12-21-12(d), to mean ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ” Ex parte Trinity Indus., Inc., 680 So.2d 262, 268 (Ala.1996), quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). This court has also concluded: “The new Act did not alter the rule that this court does not weigh the evidence before the trial court.” Edwards v. Jesse Stutts, Inc., 655 So.2d 1012, 1014 (Ala.Civ.App.1995).

The trial court made the following findings of fact and conclusions of law:

“1. That on the dates of the injuries made the basis of plaintiffs Complaint, as amended, and at all times material thereto, that is: September 17, 1996, for the back injury, and on and prior to plaintiffs last date of employment in January 1997, for the claim of occupational loss of hearing, the plaintiff was employed by defendant and all parties were subject to and operating under the Workers’ Compensation Act of Alabama.
“2. That the plaintiff, at the time of filing of his Complaint, had three (3) dependents, namely his wife, and two (2) minor children, dependent on him for their support.
“3. That the plaintiff suffered two (2) injuries, which arose out of and in the course of his employment with the defendant, Drummond Company, Inc.; one (1) injury was an occupational hearing loss, and the other was an injury to his back and to his body as a whole.
“4. That on to-wit; September 17, 1996, the plaintiff suffered a permanent disability to his back and to his body as a whole as a result of an accident arising out of and in the course of his employment with defendant.
“5. That on and prior to plaintiffs last date of employment with the defendant in January 1997, and while working and acting within the line and scope of his employment for the defendant, the plaintiff suffered a hearing loss, which occupational disease arose out of and in the course of, his employment with defendant, and resulted from the nature of plaintiffs employment in and about the mining of coal due to large noisy machinery, which emits noises with high frequencies on a regular and recurring [basis] in said work environment, and which adversely affects coal miners’ hearing; and in particular, the Court finds that the coal mining industry has attached to it the particular hazard of hearing loss, and such hazards are different from and distinguishable from hazards associated with those ordinarily incident to employment in general. The hazard of hearing loss due to the large noisy machines used in the extraction and preparation of coal introduce noises that create hazardous hearing loss conditions for coal miners greater than those ordinarily incident to employment in general, and plaintiff was exposed to such hazards from the commencement of his employment by the defendant and continuing until termination of said employment.
“8. That the plaintiffs injuries are continuing and cause him to suffer problems with his hearing, including his inability to distinguish speech when there are competing background noises, as well as, to suffer intractable pain in his back, and leg, which causes plaintiff to lose his concentration, limits his range of motion, and limits his ability to exert himself and to perform manual labor, which is the only type of employment for which he was trained, and the only type of work he has performed almost all of his life.
“10. That the plaintiff has a High School education and joined the United States Marine Corps the day after he graduated from High School in 1973. The Court finds that after his military service, plaintiff enrolled in welding classes at Walker State Technical College, and that while enrolled in classes, he was hired to work full time at Baptist Medical Center-Princeton in the maintenance department performing heavy manual labor. That following his employment at BMC-Prineeton, and before being employed in the underground coal mines in 1978, plaintiff worked several other jobs, all of which required heavy manual labor.
“11. That the plaintiff began working in the coal mines in 1978 and continued working in said coal mines until his injury on September 17, 1996. That plaintiff performed lighter work after September 17, 1996, until the defendant laid him off in January 1997. That the defendant removed plaintiff from the track crew where he worked with witness McKinley Hatcher, and placed him on a job that required him to perform lighter work after he suffered his back injury on September 17,1996.
“12. That the plaintiff is approximately six foot two inches tall and on September 17, 1996, weighed approximately 295 pounds. The Court finds that all of plaintiffs past work required physical exertion, a full range of motion of his body, including the ability to bend, twist, crawl, stoop, lift, and carry tools and equipment, and that while he worked in the coal mines plaintiff did work in spaces ranging in height at times from thirty-six (36) inches to sixty (60) inches, which made it impossible for the plaintiff to stand up straight while he worked, and further that almost all of plaintiffs previous work would be classified as heavy manual labor.
“13. That prior to the accident which occurred on September 17, 1996, the plaintiff was able to perform the full duties of an underground coal miner and was, in fact, performing those duties at the time of his work-related injury on September 17, 1996, even though the plaintiff had previously suffered other work-related injuries during the course of his employment by this defendant in the underground coal mines, including a previous injury or injuries to his back, including surgery on his back in 1987....
“14. That on or about September 17, 1996, the plaintiff and his co-workers, including witness McKinley Hatcher, were attempting to pick up an acetylene or oxygen bottle that weighed around 200 pounds; that the plaintiff turned after picking up the bottle and experienced a sudden sharp pain run down his legs and in his back so severe that he had to put his end of the bottle down and squat down on one knee. That after that incident the plaintiff walked out of the mines in a lot- of pain and reported the injury to an employee of defendant. That the plaintiff returned to work after the accident for several weeks, but since the pain he was experiencing did not subside the defendant referred plaintiff to a physician, Dr. Randolph George.
“15. The Court finds from the records of Randolph George, M.D., along with and the deposition testimony of Dr. George, that the plaintiff was prescribed an anti-inflammatory medication, a nonnarcotic pain reliever, a steroid, and a muscle relaxer, that the plaintiff was in constant, agonizing, excruciating pain and that a lumbar myelogram was performed on the plaintiff and that the results of the lumbar myelogram indicated to Dr. George that the plaintiff was suffering from a disk herniation large enough that his spinal canal was completely narrowed, and thereafter on December 16, 1997, Dr. George performed surgery on the plaintiffs back to remove the ruptured disk and also performed a foraminotomy. That subsequent to this surgery, the plaintiffs medical condition improved for a time but plateaued around January or February 1998 and that the plaintiff was still having problems and his medical condition was not improving, and that the plaintiff was taking at least two Lortab pain pills per day when Dr. George found the plaintiff to have reached maximum medical improvement on January 19, 1998, and assigned the plaintiff a medical impairment rating under the AMA guidelines of fifteen percent (15%) to the whole man. That it was the opinion of Dr. George that the plaintiff could not return to work as an underground coal miner and that the reason he could not return to such work was due to the injury the plaintiff suffered on September 17, 1996, and the recurrent pain and symptoms that the plaintiff suffered, even after the December 16, 1997, surgery.
“16. That the plaintiff continued to see Dr. Charles Cross for pain management after his surgery. Dr. Cross had prescribed pain medication for plaintiff for lower back pain and muscle spasms prior to the incident in September 1996, and the plaintiff was able to function reasonably well and to continue working when he took said medication. The testimony of Dr. Cross shows that plaintiff could not return to work in the coal mines with the degree of pain he exhibited in February 1998, and furthermore, plaintiff could no longer perform coal mining work, nor any type of work that requires a high degree of flexibility and strength and absence of pain.
“17. That on and prior to his last date of employment in late January 1997, the plaintiff also suffered an occupational hearing loss as the same is defined in the Alabama Worker’s Compensation Act. That plaintiff was exposed to extremely loud noises in the coal mines in the normal course of his work.
“That during the entire course of his employment at the defendant’s Mary Lee Mine, plaintiff was exposed to extremely loud noises from belts, conveyors, and diesel equipment. Plaintiff was examined and evaluated by Dr. John Simmons; Dr. Simmons directed audio-grams be performed on plaintiff on January 5, 1992, and again on January 30, 1998. Both audiograms showed that plaintiff had suffered nerve type loss in both ears. Dr. Simmons stated that the type pattern on plaintiffs graphs was consistent with loss due to either industrial or some sort of a loud chronic noise exposure or hunting. Dr. Simmons agreed that plaintiffs hearing loss would be consistent with being exposed to the noise of machinery that they have in the underground coal mines around here. Dr. Simmons testified that a person suffering a hearing loss from chronic loud noise exposure is not able to understand exactly what is being said, especially if there is competing background noise.
“20. The Court observed the plaintiff and his witnesses, Steve Higginbotham and McKinley Hatcher, closely during the trial and listened carefully to all of their testimony and finds the plaintiffs testimony and the testimony of his two witnesses to be credible. Dr. William Crunk, plaintiffs vocational expert, testified by deposition, and he assigned plaintiff a one hundred percent (100%) disability, and a one hundred percent (100%) loss of earning capacity, and Vocational Expert, Renee Smith, a witness for defendant, assigned plaintiff a thirty-eight percent (38%) loss of vocation.
“21. The Court has reviewed all of the depositions and exhibits offered and made a part of the record in this cause, and this Court is of the opinion that due to the plaintiffs severe, intense, and intractable pain, as well as, and in addition to his physical limitations, (which is sufficient in itself to permanently and totally disable plaintiff), which in this case is compounded by plaintiffs occupational hearing loss, all as a result of his aforesaid work-related injuries, that plaintiff has sustained total and permanent injuries or impairments which totally incapacitate him from working or being retrained for gainful employment, and resulted in a one hundred percent (100%) loss of earning capacity since August 1, 1997.”

Drummond argues that Higginbotham’s claim alleging the occupational-hearing loss is barred by the applicable statute of limitations. Hearing loss caused by noise on one’s job is considered an “occupational disease” pursuant to § 25-5-110(1), Ala.Code 1975. The statute of limitations for Higginbotham’s hearing-loss claim is governed by § 25-5-117, Ala.Code 1975, which provides that a claim for compensation for such a loss must be filed within two years of the date of injury, and for occupational diseases such as hearing loss, the date of injury is “the date of the last exposure to the hazards of the disease.” § 25-5-117(b), Ala.Code 1975. This court has held that in order for an employee to be exposed to the hazards of harmful noise, the “occupational noise [must be] sufficient both in intensity and duration to have the potential to cause damage to the employee’s hearing.” Dueitt v. Scott Paper Co., 695 So.2d 40, 44 (Ala.Civ.App.1996); see also Scott Paper Co. v. Morris, 708 So.2d 185 (Ala.Civ.App.1997).

Drummond argues that Higginbotham was last exposed to harmful noise levels several years before he filed his compensation claim based on a hearing loss. Higginbotham contends that his exposure to harmful noise levels continued up until he was laid off by Drummond in January 1997; therefore, he argues, his claim filed on May 26, 1998, alleging hearing loss is timely.

The record indicates that while Higginbotham was employed as an underground coal miner for Drummond he was constantly exposed to high levels of noise from machinery and explosives. Higginbotham began wearing hearing protection, at the latest in 1989 or 1990, and had hearing protection available to him when he began working at Drummond in 1978. He stated that he used hearing protection “pretty much off and on the whole time [he] worked at the mines.” During the course of his employment with Drummond, Higginbotham worked in several positions, including that of rock drill operator. The rock drill was a large hydraulic hammer with an approximately 18-foot-long “boom” that extended out to the face of the rock. Higginbotham testified that the operator would be exposed to the noise produced by the rock drill for the entire shift and that, even with hearing protection, by the “end of the shift your whole head would be rattling from listening to it.” As a rock drill operator, Higginbotham was also required to “shoot” explosives. He testified that he would “shoot” the explosives approximately 24 times per week and that he did this for approximately 3 years. After Higginbotham transferred off the rock drill operator’s position, he continued to use explosives to clear rock falls, and he testified that this continued up until he was laid off by Drummond. He also testified that there were times when he would have to remove his hearing protection in order to communicate with co-employees.

Dr. John Simmons first diagnosed Higginbotham with a high frequency or nerve-type hearing loss in 1992 and again in 1998. Dr. Simmons noted that the hearing loss had worsened from 1992 to 1998. Dr. Simmons testified that Higginbotham’s hearing loss is consistent with industrial noise or other loud chronic noise exposure, or with hunting. Finally, Dr. Simmons testified that the hearing protection used by Higginbotham should have protected Higginbotham from the harmful effects of the noise and that he believed the hearing protection worn by Higginbotham was approved by the Occupation Safety and Health Administration (“OSHA”).

Drummond relies upon this court’s opinion in Singleterry v. ABC Rail Products Corp., 716 So.2d 1241 (Ala.Civ.App.1998). In Singleterry, this court affirmed a summary judgment in favor of the employer in a hearing-loss case based on the defense of statute of limitations. The employer had presented evidence from an occupational-safety expert indicating that the employer’s hearing-conservation program complied with OSHA regulations and that the earplugs provided by the employer were state-of-the-art devices that blocked all harmful noises. Additionally, the employer presented evidence from a medical expert that it was “highly unlikely” that the employee was exposed to harmful occupational noise if he was wearing his earplugs. 716 So.2d at 1241-42. Here, Dr. Simmons could testify only that Higginbotham’s hearing protection should have protected him from the harmful effects of the noise and that he believed the hearing protection worn by Higginbotham complied with OSHA regulations. The evidence presented in Singleterry, indicating that the employee had not been exposed to harmful occupational noise was much more definitive than the evidence presented in this ease. Further, Dr. Simmons testified that the hearing protection worn by Higginbotham should have protected him from the harmful effects of the noise, without having knowledge of the level and volume of the noise to which Higginbotham had been exposed.

Accordingly, we conclude that substantial evidence exists indicating that Higginbotham was exposed to harmful occupational noise during the entire course of his employment with Drummond, and, therefore, his claim alleging an occupational hearing loss is not barred by the statute of limitations.

Drummond next argues that the trial court erred in finding Higginbotham to be 100% permanently and totally disabled. We note that we apply a presumption of correctness to the court’s findings of fact, including its determination of disability. Where ore tenus evidence is presented to the trial court, the court’s findings of fact based on that evidence are presumed correct and will not be disturbed on appeal unless they are clearly erroneous and without supporting evidence. Mutual Savings Life Ins. Co. v. Hogue, 693 So.2d 530 (Ala.Civ.App.1997). The test for permanent total disability is the inability to perform one’s trade and to find gainful employment. Michelin North America, Inc. v. Hamby, 722 So.2d 770 (Ala.Civ.App.1998). The court must apply a two-pronged test in determining whether a permanent total disability exists: the employee must be found to be incapable of returning to his trade, as well as incapable of being retrained for gainful employment. Id. “Total disability does not mean an entire physical disability or absolute helplessness.” 722 So.2d at 773. The court is not required to make a specific finding that an employee cannot be retrained for gainful employment, because such a finding is implicit when the trial court concludes that the employee is permanently and totally disabled. Star Rails, Inc. v. May, 709 So.2d 44 (Ala.Civ.App.1997). This court has stated that ‘[g]ainful employment means employment similar in remuneration to that earned prior to the injury. Implicit in this is that the gainful employment sought to be restored must be “suitable.” By “suitable” we mean employment which is compatible with the employee’s pre-injury occupation, age, education, and aptitude.’ ” Trans Mart, Inc. v. Brewer, 630 So.2d 469, 471 (Ala.Civ.App.1993), quoting Ex parte Beaver Valley Corp., 477 So.2d 408, 412 (Ala.1985). It is the duty of the trial court to make some determination as to the extent of disability. Hamby, 722 So.2d at 773. In making this determination, the trial court is not bound by expert testimony, but must consider all the evidence, including its own observations, and interpret that evidence to its own best judgment. Burden v. Huckaba, 708 So.2d 199 (Ala.Civ.App.1997). The court, in determining disability, may also consider the employee’s subjective complaints of pain. Hamby, 722 So.2d at 773.

The evidence indicates that Higginbotham’s employment history has been one of primarily heavy manual labor. He is in constant pain, for which he takes medication on a daily basis. Higginbotham’s treating physicians are both of the opinion that he could not return to work as a coal miner. The record further indicates that Higginbotham is incapable of performing work that involves heavy physical labor. Higginbotham’s vocational expert stated that he is 100% vocationally disabled. Further, Higginbotham’s disability related to his back condition is only compounded by his hearing loss. Accordingly, after carefully reviewing the record in this case, we cannot say that the trial court abused its discretion in determining that Higginbotham is 100% permanently and totally disabled.

AFFIRMED.

CRAWLEY, THOMPSON, and MURDOCK, JJ., concur.

PITTMAN, J., dissents.

PITTMAN, Judge,

dissenting.

I conclude that the employee’s workers’ compensation claim is barred by the two-year statute of limitations provided by § 25 — 5—117(b), Ala.Code 1975. For occupational diseases, such as hearing loss, the limitations period begins on “the date of the last exposure to the hazards of the disease.” I agree with the employer that the employee was last exposed to harmful noise levels several years before he filed his claim.

This court has held that in order for an employee to be exposed to the hazards of harmful noise, the “occupational noise [must be] sufficient both in intensity and duration to have the potential to cause damage to the employee’s hearing.” Dueitt v. Scott Paper Co., 695 So.2d 40, 44 (Ala.Civ.App.1996). See also Scott Paper Co. v. Morris, 708 So.2d 185, 187 (Ala.Civ.App.1997). This court also addressed a workers’ compensation claim for hearing loss in Singleterry v. ABC Rail Products Corp., 716 So.2d 1241 (Ala.Civ.App.1998). The Singleterry court affirmed the trial court’s summary judgment for the employer because the evidence indicated that the employee began wearing earplugs several years before he filed his claim, and an occupational safety expert witness testified that the earplugs made it unlikely that the employee was exposed to harmful noise.

The evidence in this case is akin to that presented in Singleterry. The employee, a coal miner, was exposed to loud noises in the mine, such as machinery and explosions. The evidence indicates that the employee began wearing earplugs, at the latest, beginning in 1989 or 1990, which is several years before he filed his claim based upon hearing loss. The employee testified that at times he briefly removed his earplugs for work-related discussions with his coworkers. Dr. John Simmons diagnosed the employee with hearing loss in 1992, several years before the employee filed his claim, and again in 1998, after the employee filed his claim. Dr. Simmons testified that the earplugs worn by the employee should have eliminated the harmful effects of the noise.

The employee argues that his exposure to the harmful noise continued past the time he began wearing earplugs because he would have to briefly remove the earplugs for work-related discussions with his coworkers. In Scott Paper Co. v. Morris, 708 So.2d at 186, the employee also removed his earplugs for brief periods for work-related conversations, which exposed him for those brief periods to harmful noise levels. This court reversed the trial court’s judgment finding that the worker timely filed his claim for hearing loss and cited the holding of Dueitt that the exposure to the harmful noise must be “sufficient both in intensity and duration.” 708 So.2d at 187.

I conclude that the employee in this case did not timely file his claim for hearing loss because just like the employee in Scott Paper Co. v. Morris, the employee in this case removed the earplugs only for brief periods. As stated in Dueitt and subsequently applied in Scott Paper v. Morris, that type of exposure to harmful noise was not “sufficient both in intensity and duration” to toll the statute of limitations. I would hold that the employee’s claim for hearing loss is barred by the statute of limitations.

Because I conclude that the hearing-loss claim is time-barred, I would reverse the trial court’s finding of permanent total disability and remand the cause for the trial court to base its disability rating solely on the employee’s back injury. Therefore, I dissent from Presiding Judge Yates’s opinion affirming the trial court’s judgment.

      . This case was originally assigned to another judge on the Court of Civil Appeals. It was reassigned to Presiding Judge Yates on March 11, 2002.