author: PER CURIAM. MOORE, Chief Justice

text:
    JIM WALTER HOMES, INC. v. Martha Joan NICHOLAS.
    1001716.
    Supreme Court of Alabama.
    June 21, 2002.
    Rehearing Denied Aug. 23, 2002.

      George W. Walker III and J. David Martin of Copeland, Franco, Screws & Gill, P.A., Montgomery, for appellant.
    Clatus Junkin and Charles E. Harrison of Junkin & Harrison, Fayette, for appel-lee.
   PER CURIAM.

The defendant Jim Walter Homes, Inc. (“JWH”), appeals front'''a judgment entered against it on a jury verdict for the plaintiff Martha Joan Nicholas.

JWH builds houses to a percentage of completion agreed to by the buyer and JWH; the buyer then finishes the house. In November 1989 Nicholas signed a contract and related financing documents for the purchase of a house to be constructed by JWH on her property in Fayette County. A surveyor selected by JWH surveyed the property in 1989 for purposes of securing financing.

JWH constructed the house to the agreed-upon percentage of completion, and Nicholas assumed possession in February 1990. In 1995 she was informed that a corner of her house was located on real property belonging to an adjacent landowner. When she informed JWH of the problem, JWH purchased the land at no cost to Nicholas and deeded the land to her. In 1996, Nicholas was informed by another adjoining landowner that a 40-foot strip of property owned by that landowner ran through the middle of her house. Testimony indicated that JWH did not respond to Nicholas’s telephone inquiries about the landowner’s assertion that her house had been constructed partially on his property.

In 1997 Nicholas sued JWH, alleging negligence and wantonness, fraudulent suppression, and deceit. The case was tried in March 2001. The trial court denied JWH’s motions for a judgment as a matter of law made at the close of Nicholas’s case and again at the close of the evidence.

The jury returned a general verdict for Nicholas, awarding her $50,000 in compensatory damages and $50,000 in punitive damages. The trial court entered a judgment on the verdict and later denied JWH’s postjudgment motion for a judgment as a matter of law or for a new trial. On appeal, JWH argues that Nicholas’s negligence and wantonness count is barred by the two-year statute of limitations and that, because the jury entered a general verdict, we cannot know whether its verdict was based on that claim, and, therefore, that the judgment entered on that verdict must be reversed. We agree, and we reverse and remand.

Standard of Review
“An appellate court, when reviewing a ruling on a motion for a judgment as a matter of law, uses the same standard the trial court used initially in granting or denying the motion. Regarding questions of fact, the ultimate question is whether the nonmovant presented sufficient evidence to allow the case or the issue to be submitted to the jury for a factual resolution. ... [T]he nonmovant must present ‘substantial evidence’ in order to withstand a motion for a judgment as a matter of law. A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. In reviewing a ruling on a motion for a judgment as a matter of law, this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw. Regarding a question of law, however, this Court indulges no presumption of correctness as to the trial court’s ruling.”

Bell v. T.R. Miller Mill Co., 768 So.2d 953, 956 (Ala.2000)(footnote and citations omitted).

“[W]here several claims are submitted to the jury, over [motions for a judgment as a matter of law] by the defendant, and the jury renders a general verdict as to those claims, on appeal this Court must determine whether the plaintiff presented substantial evidence in support of each of the claims.”

Ex parte Grand Manor, Inc., 778 So.2d 173, 177 (Ala.2000) (emphasis added). “If the trial court should have directed a verdict as to one or more of [Nicholas’s] claims, then we cannot assume that the jury’s general verdict ... was returned on a ‘good’ claim or on good claims and the judgment based on the jury’s verdict must be reversed.” Glenlakes Realty Co. v. Norwood, 721 So.2d 174, 177 (Ala.1998).

Discussion

JWH contends that the trial court erred in denying its motion for a judgment as a matter of law with regard to the count alleging negligence and wantonness. Specifically, JWH maintains that this count is barred by the two-year statute of limitations set out in § 6-2-38(Z), Ala.Code 1975.

“Principles governing burden of proof at trial and accrual of causes of action are ... dispositive. Turning to burden of proof, we note that when it appears from the face of the complaint that the plaintiffs claim is time-barred, the defendant is entitled to a dismissal based upon the defense of the statute of limitations, without the necessity of offering any proof. See Travis v. Ziter, 681 So.2d 1348 (Ala.1996). However, the plaintiff can overcome a defense of limitations by averment and proof of circumstances permitting tolling of the running of the limitations period, such as fraud on the part of the defendant in concealing the wrongdoing, see Parsons Steel, Inc. v. Beasley, 522 So.2d 253 (Ala.1988), or estoppel by reason of unfulfilled promises of the defendant in exchange for the plaintiffs agreement to postpone commencement of an action, see Sokol v. Bruno’s, Inc., 527 So.2d 1245 (Ala.1988). In those instances, the burden of proof is on the plaintiff to overcome the defense of limitations. See Parsons Steel, Inc., supra.”

Payton v. Monsanto Co., 801 So.2d 829, 834 (Ala.2001).

In her complaint, Nicholas alleged that JWH

“acted negligently, carelessly, recklessly, willfully and wantonly by improperly and incorrectly surveying [her] real property, and by constructing a dwelling in accordance with that improper and incorrect survey ... located partially on the property of two (2) separate adjacent landowners.”

The evidence at trial indicated that the survey of Nicholas’s property was conducted in November 1989. JWH constructed Nicholas’s house and she took possession of the house in February 1990. This action was filed in 1997; the two-year statute of limitations bars recovery on her count alleging negligence and wantonness.

JWH specifically pleaded the statute-of-limitations defense in its motion for a judgment as a matter of law and properly preserved that issue for our review. Nicholas’s negligence and wantonness count is barred, as a matter of law, by the statute of limitations. Because the jury returned a general verdict, the judgment entered on that verdict must be reversed. Glenlakes Realty Co. v. Norwood, supra. Because we must reverse the judgment on this ground, we do not address JWH’s other contentions.

Conclusion

The judgment is reversed and the cause is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

SEE, LYONS, BROWN, JOHNSTONE, and WOODALL, JJ., concur.

HOUSTON, HARWOOD, and STUART, JJ., concur in the result.

MOORE, C.J., dissents.

MOORE, Chief Justice

(dissenting).

I respectfully dissent. I believe Nicholas produced sufficient evidence of fraudulent concealment so as to toll the running of the statute of limitations. Nicholas presented evidence indicating that a JWH representative had informed her that JWH would perform the survey and that it would be a waste of money for Nicholas to hire her own surveyor. Additionally, the cost of the JWH survey was incorporated into the price of the house. The JWH survey was purportedly conducted and signed by “Roy Moore,” who was a licensed surveyor. However, Moore had retired from surveying several years before the survey of Nicholas’s property, and he had informed JWH of his retirement. Moore testified that he did not perform the Nicholas survey and that the signature purporting to be his was, in fact, not his. Nicholas also presented evidence indicating that the invoice for payment for the survey was submitted by “Moore & Pratt Surveyors”; however, the address to which payment was to be sent belonged to Clarence W. “Billy” Pratt, an unlicensed surveyor who at one time worked for Moore. Moore testified that he did not authorize Pratt to conduct surveys in Moore’s name or to issue invoices in the name of “Moore & Pratt Surveyors.”

I believe Nicholas presented evidence from which a jury could properly infer that JWH fraudulently concealed from Nicholas the fact that it knew that Moore did not conduct the survey and that the actual surveyor of the property, Pratt, was not a licensed surveyor. Therefore, I respectfully dissent.

      . Section 6-2-38(1), Ala.Code 1975, provides: “All actions for any injury to the person or rights of another not arising from contract and not specifically enumerated in this section must be brought within two years.”


source: Caselaw Access Project

author: HOUSTON, Justice.

license: Public Domain

text:
    Ex parte Leland AVERY, Probate Judge of Hale County. (In re Leland Avery, Probate Judge of Hale County v. Hale County Democratic Party Executive Committee et al.)
    1011764.
    Supreme Court of Alabama.
    Aug. 23, 2002.

      Andrew J. Smithart III, Tuscaloosa, for petitioner.
    " Patrick S. Arrington, Greensboro, for respondent Hale County Democratic Executive Committee.
    Edgar W. Greene, Jr., district atty., Selma, for respondents.
   HOUSTON, Justice.

This is a dispute over the possession of certain election materials from the Democratic primary election in Hale County held in June 2002. Leland Avery, probate judge of Hale County, petitioned for a writ of mandamus directing Hale Circuit Judge Marvin W. Wiggins to vacate his order requiring Judge Avery to transfer all election materials from the June 2002 election to the circuit clerk of Hale County and Judge Wiggins’s subsequent order holding Judge Avery in contempt of court for failing to transfer those election materials and fining Judge Avery $200 a day for failing to comply. Furthermore, Judge Avery requests that this Court allow him to turn over the election materials to the Hale County district attorney, who has subpoenaed those materials. We grant the petition.

After the June 2002 Democratic primary election (hereinafter the “June election”), James “Buster” Brown, the losing candidate for Hale County commissioner, district four, filed an election contest with the Hale County Democratic Party Executive Committee (hereinafter the “Democratic Executive Committee”). The Democratic Executive Committee requested that Probate Judge Avery turn over to it all election materials from the June election. However, Judge Avery did not comply with the Democratic Executive Committee’s request because he had received information regarding voting irregularities in the June election.

Subsequently, the Hale County district attorney filed a motion in the Hale Circuit Court requesting that Judge Avery be instructed to turn over the election materials to the district attorney’s office so that it could conduct a criminal investigation of allegations of voter fraud in the June election. At the same time, Judge Wiggins issued an order requiring that all election materials from the June election be given to the circuit clerk of Hale County. Judge Avery did not comply with Judge Wiggins’s order. Judge Wiggins then entered a second order (1) holding Judge Avery in contempt of court for failing to turn over the election materials, (2) issuing a warrant for Judge Avery’s arrest, and (3) ordering that the election materials be seized by law-enforcement officials and taken to the clerk’s office. The district attorney filed an objection to Judge Wiggins’s order.

Judge Avery then filed a declaratory-judgment action in the Hale Circuit Court requesting that that court determine the appropriate disposition of the election materials. The district attorney subpoenaed Judge Avery to appear before the district attorney and to provide any and all absentee ballots, affidavits, applications, and assorted documents pertaining to the June election.

On June 21, 2002, Judge Avery petitioned this Court for an emergency writ of mandamus directing Judge Wiggins to vacate his orders. On the same day, we ordered all parties to submit briefs in response to Judge Avery’s petition, and we stayed all orders and proceedings relating to the June election.

On June 25, 2002, James “Buster” Brown, the candidate contesting the June election, filed a motion to dismiss his contest. On July 7, 2002, a fire occurred in the building where the election materials were being held; authorities suspect that the fire could have been arson.

“A writ of mandamus is an extraordinary remedy, and is appropriate when the petitioner can show (1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.”

Ex parte BOC Group, Inc., 823 So.2d 1270, 1272 (Ala.2001). Under the circumstances of this case, the issuance of a writ of mandamus is appropriate. As discussed below, the district attorney has a right to the election materials because he is conducting a criminal investigation of the June election. Furthermore, we hold that Judge Wiggins has no jurisdiction or authority to issue an order directing that the election materials be given to the clerk.

The district attorney, not the clerk, is entitled to the election materials. The district attorney has received several claims of irregularities in the June election, some of which, the district attorney believes, may constitute voter fraud. The district attorney is conducting a criminal investigation based on this information; he has the authority to seize records and documents to aid him in that investigation. See Rule 17.1(c)(2) and 17.3(a), Ala. R.Crim. P. (giving the district attorney the power to subpoena witnesses and to command those persons to produce documents).

Although the Democratic Executive Committee would be entitled to the election materials if the election to which those materials were pertinent was being contested by a candidate in the election, see McAdory v. Alabama Democratic Party, 729 So.2d 310, 311 (Ala.1999)(noting that the political parties are responsible for determining the results of a contested primary election), James “Buster” Brown’s contest has been dismissed on Brown’s own motion. The only purpose for the Democratic Executive Committee to keep the materials would be to destroy them pursuant to Ala.Code 1975, § 17-16-33. Therefore, the Democratic Executive Committee has no lawful interest in the election materials at this time.

Finally, as to Judge Wiggins’s order that the election materials be turned over to the clerk, we can find no statutory authority for such an order. Furthermore, we can find neither a case name nor a party who has filed an action in the Hale Circuit Court giving Judge Wiggins jurisdiction over this dispute at the time he issued his orders. Additionally, Judge Wiggins failed to submit a response to this petition for the writ of mandamus, after this Court on June 21, 2002, ordered him to answer; therefore, the allegation that Judge Wiggins erred in issuing the two orders is deemed admitted by Judge Wiggins.

Judge Avery should immediately turn the election materials over to the Hale County district attorney for the district attorney to conduct a criminal investigation into allegations of voter fraud in the June election. Additionally, Judge Wiggins’s order directing that the election materials be given to the clerk is vacated as is his subsequent order holding Judge Avery in contempt of court for failing to comply with the order and fining him $200 a day for his noncompliance.

PETITION GRANTED; WRIT ISSUED.

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

      . The following statutes are representative of those statutes that make voter fraud a crime: Ala.Code 1975, § 17-10-17(a), provides, in part:
      "(a) Any person who willfully changes an absentee voter’s ballot to the extent that it does not reflect the voter's true ballot, any person who willfully votes more than once by absentee in the same election, any person who willfully votes for another voter or falsifies absentee ballot applications or verification documents so as to vote absentee, or any person who solicits, encourages, urges, or otherwise promotes illegal absentee voting, upon conviction, shall be punished by imprisonment in the penitentiary for not less than one nor more than two years, or by a fine of not less than $500.00 nor more than $2,000.00, or by being both fined and imprisoned.”
      Ala.Code 1975, § 17-16-48, provides:
      "Any person who makes a false or fraudulent return of the result of any primary election, or who falsely or fraudulently changes the votes, ballots, figures or results of any election shall be deemed guilty of a misdemeanor, and on conviction thereof shall be fined not less than $50.00 and not more than $1,000.00, and may be sentenced to hard labor for a term not exceeding 12 months.”
      Ala.Code 1975, § 17-23-2, provides:
      "Any person who falsely impersonates another and thereby or otherwise fraudulently casts a vote to which he is not entitled, or having voted at such municipal election votes a second time, ... or shall aid or assist another not so entitled, knowing him not to be so entitled, to vote or to obtain registration as a voter, shall be guilty of a felony, and, on conviction in the circuit court, or court of like jurisdiction, of the county, shall be punished by imprisonment in the penitentiary for a period of not less than one nor more than two years.”


text:
    FEDERAL INSURANCE COMPANY and Pearce Construction Company, Inc. v. TRAVELERS CASUALTY AND SURETY COMPANY et al.
    1010895.
    Supreme Court of Aabama.
    Aug. 30, 2002.

      Robert M. Girardeau of Huie, Fernam-bucq & Stewart, Birmingham, for plaintiffs.
    Carol Ann Smith and Susan C. Haygood of Smith & Ely, L.L.P., Birmingham; and William J. Baxley and Joel E. Dillard of Baxley, Dillard, Dauphin & McKnight, Birmingham, for defendants.
   HOUSTON, Justice.

This case is before this Court on two certified questions from the United States Court of Appeals for the Eleventh Circuit. As modified by this Court, those questions are:

1) Whether, absent any specific contractual duty, a primary insurance carrier owes a duty of good faith in each, or all, of the following duties to an excess carrier in its conduct of the defense of an insured who is insured by both: duty of good faith to settle; duty of good faith in deciding whether to settle; and duty of good faith to keep the excess carrier informed of settlement negotiations and adverse developments.
2) Whether an excess carrier, whose insured was “never subject to a final judgment ordering the payment of money that [the insured] personally — and not his insurer — would have to pay,” can be equitably subrogated to the rights of the insured arising out of any of the foregoing duties against the primary carrier in the conduct of its defense of the mutual insured.

For the reasons given below, we answer each question in the negative.

I. Facts

This case arises from a judgment entered on a $4.5 million jury verdict in a wrongful-death action against Pearce Construction Company, Inc. (hereinafter “Pearce”), in the Morgan Circuit Court. The case had gone to trial after the parties had faded to reach a settlement; however, there was evidence indicating that the case could have been settled before trial for $350,000. While the appeal was pending in this Court, a settlement was reached in the amount of $4.6 million — $1 million was paid by Pearce’s primary insurer, Travelers Casualty and Surety Company (hereinafter “Travelers”), and the remaining $3.6 million was paid by Pearce’s excess insurer, Federal Insurance Company (hereinafter “Federal”).

In an attempt to recover the amounts it paid to satisfy the settlement, Federal and Pearce sued Travelers in the United States District Court for the Northern District of Alabama, alleging 1) equitable subrogation; 2) refusal to settle resulting in extracontractual damages; 3) negligent and/or wanton failure to settle; 4) assumption of duties wrongfully performed; and 5) recovery against Travelers by way of an assignment by Pearce of claims Pearce could assert against Travelers. The district court entered a summary judgment in favor of Travelers, noting that this Court has “not expressly adopted the doctrine of equitable subrogation between a primary and excess insurer” and that this Court has not decided “whether a primary insurance carrier owes a duty of good faith to an excess insurance carrier of its insured.” This ruling was appealed to the United States Court of Appeals for the Eleventh Circuit, which certified the above questions to this Court.

II. Analysis

A. Duty of Good Faith Regarding Settlement

The issue whether a primary insurer owes a duty of good faith to an excess insurer regarding settlement of a claim has been raised before, but never resolved by, this Court. In Nationwide Mutual Insurance Co. v. Hall, 643 So.2d 551 (Ala.1994), we were asked to make Alabama’s tort of bad faith failure to settle a claim available to one insurer (as subrogee of its insured) against another insurer; in that case we briefly discussed but refused to address the issue now before us:

“The third issue is whether under Alabama law an insurer, as the subrogee of its insured, may bring a claim of bad faith against another insurer. Although the circuit court concluded that sufficient evidence had been presented to establish a claim that Alfa had in bad faith failed to defend and indemnify, it held that Alabama law does not allow an insurer to bring such a claim as the subrogee of its insured.
“Citing Fireman’s Fund Ins. Co. v. Continental Ins. Co., 308 Md. 315, 519 A.2d 202 (1987); Continental Cas. Co. v. Reserve Ins. Co., 307 Minn. 5, 238 N.W.2d 862 (1976); Home Ins. Co. v. Royal Indem. Co., 68 Misc.2d 737, 327 N.Y.S.2d 745 (Sup.Ct.), affirmed, 39 A.D.2d 678, 332 N.Y.S.2d 1003, appeal denied, 31 N.Y.2d 641, 289 N.E.2d 565, 337 N.Y.S.2d 1025 (1972), Nation-wide urges this Court to follow those cases and hold that as the excess insurer and subrogee of Friedlander [the insured], it may bring a claim of bad faith against Alfa, Friedlander’s primary insurer.
“We recognize that a number of courts in other jurisdictions have recognized that a primary insurance carrier owes a duty of good faith to an excess insurance carrier of its insured and on that basis have allowed an excess insurer to bring a claim of bad faith against a primary insurer. Hartford Accident & Indem. Co. v. Aetna Cas. & Surety Co., 164 Ariz. 286, 792 P.2d 749, 752-53 & nn. 2-3 (1990) (survey of jurisdictions). See generally Excess Carrier’s Right to Maintain Action Against Primary Liability Insurer for Wrongful Failure to Settle Claim Against Insured, 10 A.L.R.4th 879 (1981). A few courts have even recognized a direct duty owed by a primary insurer to an excess insurer and have permitted excess insurers to bring claims of bad faith against primary insurers without being limited to asserting rights as subrogees of their insureds. E.g., Hartford Accident & Indem. Co. v. Michigan Mut. Ins. Co., 93 A.D.2d 337, 462 N.Y.S.2d 175 (1983), affirmed, 61 N.Y.2d 569, 463 N.E.2d 608, 475 N.Y.S.2d 267 (1984); Estate of Penn v. Amalgamated General Agencies, 148 N.J.Super. 419, 424, 372 A.2d 1124, 1127 (1977). See generally Annotation, Liability Insurance: Excess Carrier’s Right of Action Against Primary Carrier for Improper or Inadequate Defense of Claim, 49 A.L.R.4th 304 (1986).
“One factual premise of this cause of action, however, is that the insurer bringing the claim is an excess insurer of the insured. Because Nationwide’s insurance is primary, and not excess, we do not address the merits of this issue.”

Hall, 643 So.2d at 562-63.

The issue now squarely before us, we hold that, in the absence of contrary contractual obligations, a primary insurer owes no duty of good faith to an excess insurer with respect to the settlement of a lawsuit against an insured. The reasons which undergird Alabama’s tort of bad faith, currently available to insureds against their insurers, see Chavers v. National Security Fire & Casualty Co., 405 So.2d 1 (Ala.1981), are simply not present in the primary-insurer/excess-insurer scenario where, as here, contractual duties with regard to settlement of a claim are absent.

In a typical insurance contract, the insured expressly relinquishes to the insurer the right to control the defense and settlement of any action arising under the contract. The insured’s reliance on the abilities and the good faith of the insurer is ' therefore necessarily at a maximum. In this case, not only did Federal not in any way expressly relinquish that right to Travelers, Federal’s policy expressly reserved to Federal “[t]he right to participate in the investigation, settlement or defense of any claim or suit that we feel may create liability on our part under the terms of the policy.”

Furthermore, there is a difference in bargaining power between an insurer and an insured in drafting and negotiating the insurance contract. The contract shifts financial risk from the insured, with minimal litigation experience, to the insurer, with substantial litigation experience. However, in the absence of separate contractual duties, the primary and excess insurance carriers stand on more equal footing. Obviously, without a contract between the insurance carriers, there can be no lack of equality in contract negotiations. Each has the responsibility to draft its own insurance contract. Each is assumed to have litigation experience. Without a contract, there can be no contractual shifting of financial risk. Simply put, the primary-insurer/excess-insurer relationship does not involve the same policy considerations that justify imposing on those insurers the duty of good faith to settle that currently exists between an insured and his insurer. Therefore, we answer the first question in the negative.

B. Equitable Subrogation

As to the second certified question, Federal argues that even if Alabama law does not recognize a direct duty of good faith with regard to settlement owed to an excess insurer by a primary insurer, Federal should be able to sue as Pearce’s subrogee on a claim for bad faith failure to settle. The doctrine of equitable subrogation has long been recognized in Alabama, and can be applied in various situations:

“[American Cyanamid] rests its theory of subrogation on the principles enunciated in American Southern Insurance Co. v. Dime Taxi Service, Inc., 275 Ala. 51, 151 So.2d 783 (1963). Dime Taxi involved the liability of a taxi company for damages sustained by a passenger in an accident caused by the negligence of the taxi company’s driver. The taxi company was liable because of the negligence of its driver, and the Court allowed the employer to be subrogated to the rights of the injured party against the driver, its own employee, and the driver’s insurer. 275 Ala. at 56, 151 So.2d at 786.
“While Dime Taxi’s theory of subro-gation is limited, of course, to the factual context of that case — a master/servant relation — we cannot so limit the rule’s application. The Dime Taxi principle of subrogation is equally applicable here. When one, under a claim of right, discharges an obligation for which another should be held legally liable for payment, then the former stands in the shoes of the obligor and may seek reimbursement against the latter for the damages caused by its allegedly culpable conduct.”

American Cyanamid Co. v. United States Fid. & Guar. Co., 459 So.2d 851, 853-54 (Ala.1984) (emphasis added). Under this rule, an excess insurer, which pays an obligation incurred by its insured, could be equitably subrogated to the rights of its insured in order to seek reimbursement from some third-party wrongdoer.

However, when equitable subrogation is sought to assert a bad-faith-failure-to-settle claim in a primary-insurer/excess-insurer scenario, like the one involved here, a unique analysis must be undertaken. It is well-settled that an insurer that, through subrogation, “stands in the shoes” of its insured may assert only claims that would be validly asserted by the insured. See Allstate Ins. Co. v. Amerisure Ins. Cos., 603 So.2d 961, 966 (Ala.1992) (“Because Sherrill could not recover from Allstate any payments that he might make voluntarily, neither can Amerisure [who sought to be subrogated to the rights of Sher-rill].”). And, as we stated in Evans v. Mutual Assurance, Inc., 727 So.2d 66 (Ala.1999), it is also well-settled that a bad-faith-failure-to-settle claim does not exist where the insured is subject to no personal loss from a final judgment:

“Dr. Evans claims that, given Mutual Assurance’s knowledge of the risk of a large judgment, and its knowledge of the deleterious effect the malpractice action was having on him, Mutual Assurance should have settled the case before trial for the $1 million policy limits. Dr. Evans contends that even though Mutual Assurance fully paid the claim against him, he is still entitled to damages from Mutual Assurance for emotional distress, humiliation, damage to his reputation, and loss of business, all of which he says resulted from Mutual Assurance’s insistence that the malpractice claim be tried before the Mobile jury.
“In Waters v. American Cas. Co. of Reading, Pa., 261 Ala. 252, 73 So.2d 524 (1953), this Court recognized that if an insurer negligently failed to settle a case, the insurer should be hable for the full amount of any judgment, including any excess over the policy limits. This Court has on several occasions addressed the tort of negligent or bad-faith failure to settle. Each time, the Court has held that a cause of action arising out of a failure to settle a third-party claim made against the insured does not accrue unless and until the claimant obtains a final judgment in excess of the policy limits. See State Farm Mut. Auto. Ins. Co. v. Hollis, 554 So.2d 387 (Ala.1989); Turner Ins. Agency v. Continental Cas. Ins. Co., 541 So.2d 471 (Ala.1989); Hartford Accident & Indem. Co. v. Cosby, 277 Ala. 596, 173 So.2d 585 (1965). See also Boyd Bros. Transp. Co. v. Fireman’s Fund Ins., 540 F.Supp. 579, 582 (M.D.Ala.1982) (there is no injury from a failure to settle until there is a final judgment against the insured), aff'd, 729 F.2d 1407 (11th Cir.1984).
“Relying on a number of cases, Dr. Evans argues that a cause of action based on an insurer’s bad-faith failure to settle a claim should be held to accrue at the time the insurer first exhibits a bad-faith failure to settle. See Safeco Ins. Co. of America v. Sims, 435 So.2d 1219, 1222 (Ala.1983); Chavers v. National Sec. Fire & Cas. Co., 456 So.2d 293, 294 (Ala.1984); McLeod v. Life of the South Ins. Co., 703 So.2d 362, 364-65 (Ala.Civ.App.1996). Each of those cases, however, involved a first-party claim wherein the insured alleged that the insurer had, in bad faith, refused to pay a legitimate claim made by the insured on his own policy. Those cases hold that the cause of action accrues the moment the insurer refuses, in bad faith, to honor the claim, and that the insurer cannot absolve itself of liability by subsequently tendering payment.
“We find no basis for substituting the accrual rule applicable in first-party cases for the established accrual rule applicable in causes of action based on an insurer’s failure to settle third-party claims against its insured. It is clear from Dr. Evans’s complaint that he was never subject to a final judgment ordering the payment of money that Dr. Evans personally — and not his insurer— would have to pay, and that Mutual Assurance’s paying the settlement absolved Dr. Evans of any personal liability. The circuit court properly entered the judgment on the pleadings.”

727 So.2d at 67-68 (emphasis added).

Applying these principles to the primary-insurer/excess-insurer scenario leads us to conclude that, because an insured will never be able to assert a bad-faith-failure-to-settle claim against an insurer where the insured is “never subject to a final judgment ordering the payment of money that [the insured] personally — and not his insurer — would have to pay,” equitable subrogation is not available to an excess insurer whose insured is subject to no such final judgment. Simply put, equitable subrogation cannot exist to provide a conduit to assert what are conclusively nonexistent rights. Therefore, we answer the second question in the negative.

QUESTIONS ANSWERED.

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

MOORE, C.J., recuses himself.

      . Our modification of the certified questions is in accordance with both the leeway given by the United States Court of Appeals for the Eleventh Circuit, see Federal Insurance Co. v. Traveler's Casualty & Surety Co., 280 F.3d 1356, 1357 (11th Cir.2002) ("The particular phrasing used in the certified question is not to restrict the Supreme Court’s consideration of the issues in its analysis of the record certified in this case. This latitude extends to the Supreme Court’s restatement of the issue or issues and the manner in which the answers are given.”), and our desire to view the questions in their relevant context. See Palmore v. First Unum, 841 So.2d 233 (Ala.2002). The certified questions, as phrased by the Eleventh Circuit, were as follows:
      "1) Whether a primary insurance carrier owes a duty of good faith in each, or all, of the following duties to an excess carrier in its conduct of the defense of an insured who is insured by both. The relevant duties are: duty of good faith to settle; duty of good faith in deciding whether to settle; duly of good faith to keep excess carrier informed of settlement negotiations and adverse defense developments.
      "2) Whether an excess insurer can be equitably subrogated to the rights of an insured arising out of any of the foregoing duties against the primary carrier in the conduct of its defense of the mutual insured.”

      . Evans v. Mutual Assurance, Inc., 727 So.2d 66, 68 (Ala.1999).

      . Federal asserts that Alabama Farm Bureau Mutual Casualty Insurance Co. v. Dalrymple, 270 Ala. 119, 116 So.2d 924 (1959), allows an insured to bring a bad-faith-failure-to-settle claim even where the insured would not be subject to paying an amount greater than his amount of insurance. In this respect, Federal misreads the effect of Dalrymple, in which this Court merely held that an insured need not prepay a judgment before asserting a claim of bad-faith failure to settle. See Dalrymple, 270 Ala. at 122-23, 116 So.2d at 925-26.


author: LYONS, Justice.

text:
    Troy GRAYSON v. Horace B. HANSON III et al.
    1011352.
    Supreme Court of Alabama.
    Aug. 30, 2002.
    Douglas *L. Key, Birmingham, for appellant.
    John A. Russell III, Aliceville, for appel-lees.
   LYONS, Justice.

This appeal arises out of an action to quiet title. Troy Grayson, the appellant, and Horace B. Hanson III and others, the appellees (hereinafter referred to collectively as “the Hansons”), agreed to settle the action during a bench trial. The trial court recessed the proceedings and later entered a judgment purporting to reflect the terms of the parties’ agreement. Grayson appeals from that judgment. We reverse and remand.

I. Facts and Procedural History

The property in dispute is located in the “southeast corner of the southeast quarter section 12, township 24 north, range 3 west in Pickens County,” near the bank of the Tombigbee River. Grayson and the Han-sons dispute the facts regarding ownership of the subject property. Grayson alleges that, on December 1, 1949, his father, T.L. Grayson, purchased a parcel of property, which included the property in question. Grayson alleges that his father used the property as additional land for his farming operation. According to Grayson, on October 27, 1955, his father sold a portion of the property, approximately 48.63 acres, to F.C. Huyck & Sons, a New York corporation.

After the sale, Grayson alleges, his family constructed a fence to separate the property sold to F.C. Huyck & Sons from the property his family retained. According to Grayson, his father used the property within the perimeter of the fence as additional farmland until his death in 1981. Grayson alleges that, on January 9, 1982, the property formerly owned by his father was conveyed to him. Grayson alleges that, since 1949, he and his family have exercised open, notorious, hostile, continuous, peaceable, and exclusive possession of the disputed property.

The Hansons allege that the disputed property was a part of the old “Hanson Homeplace.” According to the Hansons, on February 15, 1922, the Hanson Home-place was mortgaged to the Federal Land Bank of New Orleans. On July 23, 1934, the Land Bank foreclosed on the Hanson Homeplace. The Hansons allege that, although the bank foreclosed on the property, the Hanson Homeplace was later re-conveyed to the Hanson family. The Hansons allege that they have paid property taxes on the disputed property for the past 23 years.

On May 18, 1998, Grayson brought an action to quiet title to the disputed property, alleging that he and his predecessors in title had been in “actual, clear, definite, notorious, continuous, adverse, peaceable and exclusive possession” of the disputed property for a period exceeding 20 years and had thereby acquired the property by adverse possession. On August 19, 1998, Grayson filed a motion for a summary judgment. On September 23, 1998, the Hansons filed a motion in opposition to Grayson’s summary-judgment motion. On October 13, 1998, the trial court denied Grayson’s motion for a summary judgment. On July 12,1999, Grayson amended the complaint in his action to quiet title, altering the description of the property in dispute. Grayson did not refile a motion for a summary judgment. On June 26, 2001, a bench trial of the case began. After approximately four hours of testimony, the parties advised the court that they had reached an agreement. The Hansons’ attorney read the agreement into the record.

The agreement provided that Grayson would quitclaim to the Hansons “tract number three as described in the Tax Assessor’s records,” which consisted of the west half of the disputed property, and that the Hansons would quitclaim to Gray-son “the property described on Exhibit Number 11,” which consisted of the east half of the disputed property. In addition, the agreement provided that Grayson would grant the Hansons a 20-fooh-wide easement, which was to be located on the south side of Grayson’s property line. The Hansons and Grayson told the trial court that after they agreed upon the “flagging” of the property by a surveyor, indicating the location of the easement and the boundary lines of their respective parcels of the disputed property, they would finalize the agreement and the trial court could then enter an order based upon that agreement.

The Hansons’ surveyor set out the initial flags marking the proposed location of the easement, and based on those flags the Hansons’ attorney prepared three proposed consent judgments, each incorporating a slightly different agreement, for approval by Grayson’s attorney. Grayson’s attorney, however, objected to each of the proposals, alleging after reviewing the second draft that the Hansons had added an additional .32 acres to the property Gray-son had agreed to quitclaim to the Han-sons, that the proposed easement did not follow the existing fence line, as the parties had allegedly agreed, and that the Han-sons had added an additional 108-foot by 20-foot section of Grayson’s property to the easement. Because the parties could not agree on the addition of the .32 acres and the location of the easement, Grayson filed a motion to set aside the agreement, alleging that both parties had agreed at trial that there would be no agreement until both parties agreed on the surveyor’s flagging and that both parties had not agreed on the flagging.

The trial court entered a final judgment, incorporating into that judgment the Han-sons’ third proposed agreement. The judgment provided that the east corner of the disputed property, which consisted of two parcels, one containing .32 acres and one containing 1.9 acres, was to be Gray-son’s property. The judgment provided that the west corner of the disputed property, which consisted of 1.58 acres, was to be the Hansons’ property. Finally, the judgment provided that the Hansons be awarded a 20-foot-wide easement, to be located where the Hansons’ surveyor had proposed. Grayson appeals from the trial court’s judgment, arguing that the trial court erred when it denied his motion for a summary judgment and when it incorporated the Hansons’ proposed agreement into its final judgment.

II. Summary Judgment

Grayson contends that the trial court erred when it denied his motion for a summary judgment because, Grayson argues, he presented substantial evidence indicating that he and his predecessors in title had exercised “open, notorious, hostile, continuous, peaceable and exclusive possession” of the disputed property for over 20 years. Grayson filed his motion for a summary judgment and a brief in support of that motion on August 19, 1998. Grayson attached to the motion his own affidavit and the affidavits of two other persons. Each of the affiants, including Grayson, stated that he was familiar with the property in question and that the property in question had been under the exclusive use and control of the Grayson family for over 20 years. According to Grayson, the affidavits in support of his motion for a summary judgment prove that there was no genuine issue as to any material fact and that Grayson was entitled to a judgment as a matter of law.

However, we cannot review the trial court’s denial of Grayson’s motion for a summary judgment because Grayson amended his complaint, changing the description of the property in dispute, after the trial court had denied his motion for a summary judgment. Grayson filed his initial complaint on May 18, 1998. Grayson moved for a summary judgment on August 19, 1998. The trial court denied Grayson’s motion for a summary judgment on October 13, 1998. Grayson then amended his complaint, altering the description of the property in dispute, on July 12,1999.

The amended complaint in this action changed the description of the property; thus, it superseded the original complaint, so that the original complaint is treated as though it had never been filed. See Holcomb v. Morris, 457 So.2d 973, 977 (Ala.Civ.App.1984). From the record before us, it appears that Grayson never renewed his motion for a summary judgment after he amended his original complaint. Thus, the trial court never had an opportunity to rule upon a summary-judgment motion, based upon the amended complaint, which changed the property description. This Court will not consider an issue raised for the first time on appeal. Crews v. Herman Maisel & Co., 524 So.2d 980, 983 (Ala.1988). “ ‘The trial court may not be put in error for failure to rule on a matter which was not presented to it or decided by it.’ ” Crews, 524 So.2d at 983, quoting City of Rainbow City v. Ramsey, 417 So.2d 172, 174 (Ala.1982). Because the initial complaint was, in effect, withdrawn by the amended complaint and the trial court was not asked to rule on the amended complaint, Grayson’s contention that he was entitled to a summary judgment as a matter of law is not before us.

We note, out of an abundance of caution, the rule stating that when the trial court’s denial of a motion for a summary judgment is followed by a trial and a judgment on the merits, we review for error only the denial of a motion for a judgment as a matter of law. See City of Birmingham v. Sutherland, 834 So.2d 755 (Ala.2002), citing Superskate, Inc. v. Nolen, 641 So.2d 231, 233 (Ala.1994)(“Ordinarily, any issue as to the denial of [a] summary judgment motion would be moot, because the sufficiency of the evidence at trial would be the significant question on appeal.”). We add this caveat because, in this case, the parties’ attempted settlement resulted in a record that does not contain all of the evidence. Rather than reach the issue whether the circumstances here presented are sufficiently similar to those in Sutherland to warrant application of the foregoing rule, we have decided this case based on the procedural ground of failure to renew the motion for a summary judgment after amendment of the original complaint. Our resolution of this case based on this procedural issue should not be read as legitimating a review of the alleged erroneous denial of a motion for a summary judgment after a trial on the merits.

III. Judgment Based on the “Settlement Agreement”

Grayson next contends that the trial court erred in incorporating into its judgment the Hansons’ proposed “settlement agreement.” Grayson contends that the parties agreed, on the record, that the “settlement agreement” settlement would not be finalized until both parties agreed upon the flagging of the easement and the boundary fines of the parties’ respective properties. In effect, Grayson contends that the “agreement” was not a final agreement but was rather an agreement to agree further, on another issue, at a later date. The record indicates that the parties initially agreed that Grayson would quitclaim to the Hansons “tract number three as described in the Tax Assessor’s records,” which consisted of the east half of the disputed property, and that the Hansons would quitclaim to Grayson “the property described on Exhibit Number 11,” which consisted of the west half of the disputed property. In addition, the parties agreed that Grayson would grant the Hansons a 20-foot-wide easement, which was to be located on the south side of Grayson’s property line. When the trial court asked the parties who would decide where the easement was to be located, the Hansons’ attorney stated that the surveyor would flag the location. The Hansons’ attorney then stated: “And before I submit it to [the Court] for signature, I’ll make sure that [Grayson’s attorney] and Gray-son have looked at it.”

In response to the statement by the Hansons’ attorney that the surveyor would perform the flagging, Grayson stated that his understanding was that the easement would be located along the existing fence line of his property. The Hansons’ attorney then stated:

“Let’s do it this way, we’re going to go out there and flag what we intend to use. We’ve got an agreement, and when we all agree on the flagging, we will finalize the agreement. I don’t know how to do it any other way. It’s going to have to be marked on the ground for us to see.”

(Emphasis added.) The Hansons’ attorney then stated that once the flagging was completed he would prepare a proposed settlement agreement and send it to Gray-son’s attorney for approval.

The Hansons’ surveyor flagged the proposed location of the easement and the boundary lines of the property. When Grayson viewed the proposal, he objected to the location of the easement and to the addition of .32 acres to the property he was agreeing to quitclaim to the Hansons. Grayson alleges that the trial court should not have entered an order based upon the Hansons’ proposed settlement agreement because, he says, he never agreed with the surveyor’s flagging. Grayson alleges that the parties never entered into a final settlement agreement; rather, he says, they agreed to agree on a settlement agreement only after the surveyor had flagged the property. Grayson contends that he cannot be bound by an agreement to agree.

At the outset, we note that the ore tenus rule is not applicable in this case. Although the trial court heard four hours of testimony from witnesses in the case, the trial ended when the parties stated that they had reached a settlement agreement. At that point, the trial concluded before all of the evidence was presented. Consequently, the trial court’s assessment of the credibility of the witnesses cannot support its determination.

The record contains a discussion between the Hansons’ attorney, Grayson, and Grayson’s attorney, regarding the terms of the settlement agreement at the time the settlement was announced in the courtroom. The trial court based its settlement order on this discussion and on the Han-sons’ proposed agreement. While attorneys are officers of the court and their statements require no oath, no one challenges the credibility of the statements made during the discussion of the settlement. Further, no one challenges the accuracy or completeness of the transcript.

A validly executed settlement agreement is as binding on the parties as any other contract. Sheridan v. Board of Water & Sewer Comm’rs of City of Prichard, 764 So.2d 526, 529 (Ala.2000). However, settlement agreements, like other agreements, are not valid when there has been no meeting of the minds with regard to the final terms of the agreement, see Ingram v. Pollock, 557 So.2d 1199, 1200 (Ala.1989), and Ex parte Industrial Technologies, Inc., 707 So.2d 234, 238 (Ala.1997), or when the parties have merely agreed to later agree, see Muscle Shoals Aviation, Inc. v. Muscle Shoals Airport Authority, 508 So.2d 225, 227 (Ala.1987); Dixieland Food Stores, Inc. v. Geddert, 505 So.2d 371, 373 (Ala.1987); Clanton v. Bains Oil Co., 417 So.2d 149, 151 (Ala.1982).

The trial court made no finding of ambiguity and heard no further testimony in the case concerning the import of the settlement. Thus, the trial court could have relied only upon the transcript of the parties’ discussion of a settlement agreement and the Hansons’ proposed settlement agreement when it incorporated that proposed agreement into its final judgment.

The transcript of the parties’ discussion of the proposed settlement agreement unambiguously reflects that the agreement was not final until both Grayson and the Hansons agreed on the location of the easement and the boundary lines of their respective properties as established by the surveyor’s flagging. Based upon the plain import of the terms of the agreement as set forth in the transcript, each party had to agree upon the flagging before it became bound by the settlement agreement. The transcript does not indicate that Gray-son agreed to be bound by the surveyor’s decision as to the flagging of the easement. The surveyor was in an advisory role, at best.

Grayson repeatedly objected to the surveyor’s flagging and to the Hansons’ proposed settlement agreement, which was based upon that flagging. The trial court erred when it failed to grant Grayson’s motion to set aside the agreement and entered the judgment incorporating the agreement submitted by the Hansons.

IV. Conclusion

We do not reach the trial court’s order denying Grayson’s motion for a summary judgment as to the original complaint. The trial court’s judgment in favor of the Hansons is due to be reversed and this cause remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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


author: BROWN, Justice.

text:
    Ex parte SOUTHERN UNITED FIRE INSURANCE COMPANY et al. (In re Bobby E. Dewrell, Jr. v. Southern United Fire Insurance Company, and Time Payment Plan). Southern United Fire Insurance Company, The Rider Agency, and Time Payment Plan v. Bobby E. Dewrell, Jr.
    1002027 and 1002093.
    Supreme Court of Alabama.
    Aug. 30, 2002.

      Anthony M. Hoffman and Robin B. Taylor of Zieman, Speegle, Jackson & Hoffman, L.L.C., Mobile, for Southern United Fire Insurance Company and Time Payment Plan.
    Russell J. Watson of Ball, Koons & Watson, Bay Minette, for Bobby E. Dewrell, Jr.
   BROWN, Justice.

Southern United Fire Insurance Company (“Southern United”), Time Payment Plan (“TPP”), and The Rider Agency petition this Court for a writ of mandamus directing the Baldwin Circuit Court to vacate its order compelling them to attend and to participate in an arbitration proceeding the respondent, Bobby E. Dewrell, Jr., unilaterally scheduled with an arbitrator unilaterally selected by him. We grant the petition and issue the writ. Southern United, TPP, and The Rider Agency also appeal the trial court’s order denying their motion to compel arbitration. In that appeal, we reverse and remand as to Southern United and TPP and dismiss the appeal as to The Rider Agency.

Facts and Procedural History

On November 8, 2000, Bobby E. Dew-rell, Jr., visited The Rider Agency to obtain automobile insurance coverage. While there Dewrell completed an application for coverage with Southern United and an application for premium financing from TPP.

Based on the information Dewrell had given, the insurance agent calculated the total annual premium amount for Dewrell’s automobile to be $1,952.60. Dewrell made an initial payment of $280, and he agreed to make 10 monthly payments of $167.26 for the Southern United policy. Southern United alleges that when it processed Dewrell’s application, it discovered that Dewrell had misrepresented his driving history, and it sent Dewrell a letter requesting an additional premium. Southern United asserts that the letter informed Dewrell that failure to submit the additional premium within the requested time would result in its canceling the policy on December 12, 2000. Because, Southern United alleges, Dewrell failed to submit the additional premium within the time specified, it canceled the policy on that date for nonpayment of premiums. The evidence in the record, however, merely indicates that Dewrell failed to timely make the monthly payment due on December 8, 2000. Accordingly, on December 13, 2000, TPP sent Dewrell a notice that the policy would be canceled if payment was not received by December 24, 2000.

Dewrell was involved in an automobile accident on December 16, 2000; the record reflects that Dewrell made a payment of $185 to The Rider Agency on December 22, 2000. After it was notified of Dewrell’s accident, Southern United issued a reservation-of-rights letter on December 28, 2000. In that letter, Southern United advised Dewrell that, although it was not yet denying coverage, Southern United’s records indicated that Dewrell’s policy had been canceled on December 12, 2000. Southern United subsequently denied coverage for Dewrell’s December 16, 2000, automobile accident.

Dewrell sued Southern United, TPP, and The Rider Agency, alleging breach of contract, bad faith, negligence, and wantonness. Southern United moved to compel arbitration pursuant to the arbitration agreement contained in the Southern United insurance policy; that agreement provided:

“ARBITRATION — Any and all disputed claims and controversies of any nature whatsoever between any insured and Southern United Fire Insurance Company, its agencies (or persons or entities alleged to be its agents), employees, representatives, and/or officers, whether such disputes, demands, claims or controversies are based upon, relate to or arise out of this Policy or the issuance or events leading up to or contemporaneous with the issuance of this Policy shall be submitted to binding arbitration. The arbitration proceedings shall be administered by an independent resolution party and it [sic] shall be conducted pursuant to said party’s Alabama insurance policy arbitration rules. Any party may initiate an arbitration proceeding. The applieani/insured may initiate arbitration and obtain a copy of said rules by contacting the Company .... ”

In support of its motion, Southern United submitted a copy of the policy and the affidavit of Alfred Trovinger, a Southern United employee who attested to the nature of Southern United’s business and its effect on interstate commerce.

Dewrell alleges that he had not received a copy of the Southern United policy and that he was thus unaware of the language of the arbitration agreement contained in the policy until Southern United submitted the policy in support of its motion to compel arbitration. Thereafter, Dewrell requested, and subsequently received, a copy of the arbitration rules referred to in the policy. On July 31, 2001, Dewrell’s attorney wrote counsel for Southern United, stating that Dewrell could not “agree to arbitrate this case under the provisions set forth in the policy or the rules because Mr. Dewrell was never provided a copy of the policy and had no opportunity to reject the provisions of arbitration set forth therein as specified in the application.” In the letter, Dewrell’s attorney informed counsel for Southern United that Dewrell “agree[d] to arbitrate this case under the arbitration provisions disclosed to Mr. Dewrell in the application,” and that Dew-rell had scheduled an arbitration before an arbitrator unilaterally selected by Dewrell for August 24, 2001.

On August 1, 2001, Southern United’s attorney responded to the July 31 letter, indicating that Southern United would not participate in the August 24, 2001, arbitration because, Southern United said, it had not been scheduled in accordance with the terms of the arbitration provision contained in the insurance policy. The letter also informed Dewrell that Southern United intended to proceed with its motion to compel arbitration that was still pending before the trial court.

On August 10, 2001, after receiving Southern United’s response, Dewrell moved the court to compel Southern United and the other defendants to attend and participate in the scheduled arbitration. Southern United opposed the motion, asserting that the arbitration had been unilaterally scheduled with a unilaterally selected arbitrator, and that, therefore, it did not comply with the terms of the arbitration agreement contained in the insurance policy.

On August 17, 2001, TPP moved to compel Dewrell to submit the claims against it to binding arbitration. TPP argued that it was entitled to arbitration based on the arbitration agreement included in the Southern United policy, and it cited several cases in which this Court held that an arbitration agreement in an insurance policy also applies to claims against third parties, such as TPP.

On August 21, 2001, the trial court granted Dewrell’s motion and ordered the defendants to attend and participate in the arbitration that Dewrell had scheduled. The trial court also denied the motions to compel arbitration filed by Southern United and TPP as moot.

On August 22, 2001, Southern United, TPP, and The Rider Agency petitioned this Court for a writ of mandamus directing the trial court to vacate its order requiring them to attend and participate in the unilaterally scheduled arbitration. On that same date, Southern United and TPP moved the trial court to reconsider its ruling that their motions to compel were moot. On August 28, 2001, Southern United and TPP filed a direct appeal regarding the trial court’s denial of their motions to compel arbitration as moot. Although The Rider Agency is listed as an appellant on the notice of appeal filed on August 28, 2001, the record indicates that The Rider Agency filed its motion to compel arbitration on August 22, 2001, and that the trial court never ruled on that motion. Moreover, the briefs contain no arguments regarding whether the trial court should have granted or denied The Rider Agency’s motion to compel arbitration. Because no final order exists from which The Rider Agency could appeal, any claims regarding its motion to compel arbitration are dismissed.

Analysis

Southern United, TPP, and The Rider Agency first argue that this Court should grant their petition and issue a writ of mandamus directing the trial court to vacate its order compelling them to attend and to participate in the arbitration Dew-rell had unilaterally scheduled before an arbitrator unilaterally selected by him. Southern United and TPP also argue on their direct appeal that the trial court erroneously denied as moot their motions to compel arbitration.

“ A writ of mandamus is an extraordinary remedy that requires the showing of: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty on the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.’ Ex parte McNaughton, [728 So.2d 592, 594] (Ala.1998). A petition for a writ of mandamus is the proper means by which to challenge a trial court’s order granting a motion to compel arbitration. Ex parte Phelps, 672 So.2d 790 (Ala.1995).”

Ex parte Napier, 723 So.2d 49, 52 (Ala.1998). “‘[T]he standard of review of a trial court’s ruling on a motion to compel arbitration at the instance of either party is a de novo determination of whether the trial judge erred on a factual or legal issue to the substantial prejudice of the party seeking review.’ ” Vann v. First Community Credit Corp., 834 So.2d 751, 752-53 (Ala.2002)(quoting Ex parte Roberson, 749 So.2d 441, 446 (Ala.1999)).

Specifically, Southern United, TPP, and The Rider Agency contend that they are entitled to relief because the trial court ordered them to attend and to participate in an arbitration that did not comply with the terms outlined in the insurance policy. The arbitration agreement contained in the policy stated that arbitration “shall be conducted pursuant to [an independent resolution] party’s Alabama insurance policy arbitration rules.” Those rules provide:

“1. Initiation of Arbitration
“These rules shall apply to any and all disputed claims and controversies of any nature whatsoever between any insured and Southern United Fire Insurance Company, its agencies (or persons or entities alleged to be its agents), employees, representatives, and/or officers. Either party to the dispute, claim, and/or controversy may initiate an arbitration under these rules by contacting Resolute Systems, Inc.’s Case Consulting Division at (800) 776-6126.
“2. Panel of Arbitrators
“Resolute shall establish and maintain a Panel of Distinguished Neutrals from which parties may select a mutually agreeable arbitrator.
“3. Selection of Arbitrator
“Unless prohibited by law, the dispute shall be decided by one arbitrator. Resolute will submit a Panel of Distinguished Neutrals from which each party shall have the right to find a mutually acceptable arbitrator. Resolute will facilitate the appointment of the arbitrator from the names chosen by the parties.
“If the parties fail to agree on any of the persons named, or if acceptable arbitrators are unable to act, or if for any reason the selection cannot be made from the submitted Panel(s), Resolute shall appoint the arbitrator from among the members of the Panel of Distinguished Neutrals.”

Conversely, Dewrell contends that, because he did not receive a copy of the policy and because he was not afforded an opportunity to reject the arbitration agreement contained in the policy, he can be made to arbitrate his claims pursuant only to the language contained in the application. The application for insurance executed by Dewrell provided:

“READ THE FOLLOWING INFORMATION CAREFULLY.
“1. The policy for which you have applied includes a binding arbitration agreement.
“2. The arbitration agreement requires that any disagreement related to this policy must be resolved by arbitration and not in a court of law.
“3. The results of the arbitration are final and binding on you and the insurance company.
“4. In an arbitration, an arbitrator, who is an independent, neutral party, gives a decision after hearing the positions of the parties.
“5. When you accept this insurance policy you agree to resolve any disagreement related to the policy by binding arbitration instead of a trial in court including a trial by jury.
“6. Arbitration takes the place of resolving disputes by a judge and jury and the decision of the arbitrator cannot be reviewed in court by a judge and jury.
“ACKNOWLEDGMENT OF ARBITRATION AGREEMENT
“I have read this statement. I understand that I am voluntarily surrendering my right to have any disagreement between the insurance company and myself resolved in court. This means that I am waiving my right to a trial by jury.
“I understand that upon receipt of the policy I should read the arbitration clause contained in the policy and that I have the right to reject this policy within three (3) days of the date of delivery if I do not want to accept the requirement for arbitration.
“ARBITRATION AGREEMENT
“I understand that this same type of insurance may be available through an insurance company that does not require that policy related disagreements be resolved by binding arbitration.”

(Capitalization in original.) Dewrell’s signature appears on the application just below this statement.

“ ‘An application for insurance is an offer to enter into an insurance contract, and if the insurer issues a policy materially different from that applied for, the policy is a counter-offer which becomes binding only when accepted by the applicant.’ ” Ex parte Rager, 712 So.2d 333, 335 (Ala.1998) (quoting Connell v. State Farm Mut. Auto. Ins. Co., 482 So.2d 1165, 1167 (Ala.1985)). Although Dewrell contends that he did not, and could not, accept the terms of the Southern United policy because he did not receive a copy of either the policy or the arbitration rules referenced in the policy, it is undisputed that he is seeking to recover damages based on allegations that, among other things, Southern United breached the contract of insurance. Therefore, Dewrell is relying on the Southern United insurance policy to support his claim for damages. Because Alabama law prohibits a person from picking and choosing those provisions in a contract that he wants to apply, if Dewrell wants to recover for a breach of the insurance policy, he has no choice but to pursue his remaining claims under the terms of that contract. See Delta Constr. Corp. v. Gooden, 714 So.2d 975, 981 (Ala.1998). Thus, arbitration in this ease must comply with the terms outlined in the Southern United policy and the arbitration rules referred to in that policy. Accordingly, the trial court erred when it compelled Southern United, TPP, and The Rider Agency to attend and to participate in the arbitration unilaterally scheduled by Dewrell because that arbitration did not comply with the terms of the arbitration agreement in the insurance policy.

Because Southern United, TPP, and The Rider Agency have demonstrated a clear legal right to the relief sought, we grant their petition and we issue a writ of mandamus directing the trial court to vacate its order compelling them to participate in the arbitration arranged by Dewrell. Moreover, because the trial court’s order compelling Southern United and TPP to attend and to participate in the arbitration is to be vacated, Southern United’s and TPP’s motions to compel arbitration are not moot. Accordingly, we reverse the trial court’s order denying their motions to compel as moot and remand the case for the trial court to consider and to rule upon those motions.

1002027 — PETITION GRANTED; WRIT ISSUED.

1002093 — REVERSED AND REMANDED AS TO SOUTHERN UNITED AND TPP; APPEAL DISMISSED AS TO THE RIDER AGENCY.

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

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

      . In his brief to this Court, Dewrell correctly points out that none of the facts Southern United alleges regarding the misrepresented driving record and the additional premium request were before the trial court and that none of those facts are supported by the record. Those facts have been included in this opinion merely for the background they provide regarding Dewrell's cause of action. Their inclusion should not be read as an acceptance by this Court of the accuracy of those facts.

      . The record indicates that the trial court never ruled on the motion to reconsider.

      . This Court adopted Rule 4(d), Ala. R.App. P., effective October 1, 2001, to provide that orders granting or denying motions to compel arbitration are reviewable by direct appeal. However, both the trial court's order compelling arbitration and this petition were filed before the effective date of the new rule. Thus, a petition for writ of mandamus is the proper vehicle by which to challenge the trial court's order in the instant case.


author: WOODALL, Justice. LYONS, Justice

text:
    Roxanne GREENE, as administratrix of the estate of George Greene, deceased; et al. v. CSX TRANSPORTATION, INC.
    1010357.
    Supreme Court of Alabama.
    Aug. 30, 2002.
    John C. Hall III of Hah & Hall, L.L.C., Birmingham, for appellants.
    Stephen A. Rowe and Todd M. Higey of Lange, Simpson, Robinson & Somerville, L.L.P., Birmingham, for appellee.
   WOODALL, Justice.

This case presents the question whether the “latent-illness-discovery rule” applies to actions brought by the personal representatives of deceased railroad employees, pursuant to 45 U.S.C. § 59, a part of the Federal Employers’ Liability Act, for personal injuries allegedly suffered by the employees in the course of their employment. We answer that question in the negative, and we affirm the summary judgment for the defendant.

According to the undisputed facts, Edward L. Parker, Jr., was employed by CSX Transportation, Inc. (“CSX”), from 1947 to 1971. During that time, his brother, Charles Parker, also worked for CSX. On April 6, 1971, Edward Parker died of lung cancer.

In 1997, Charles Parker sought medical treatment for breathing difficulties. He was diagnosed with mesothelioma, a form of lung cancer, from which he subsequently died. Dr. Alan Stansfield, one of Charles Parker’s physicians, attributed the illness to exposure to asbestos, and suggested a possible connection between the illness and his employment.

Based on Dr. Stansfield’s diagnosis of her uncle, Martha P. Johnson, Edward Parker’s daughter, sued CSX on January 10, 2000, as “personal representative with the will annexed of Edward L. Parker, deceased.” The complaint alleged that Parker’s fatal cancer resulted from exposure to asbestos and other toxic substances in the course of his employment with CSX. It alleged violations of various federal acts, including the Federal Employers’ Liability Act, 45 U.S.C. § 51 et seq. (“FELA”), the Locomotive Boiler Inspection Act, 45 U.S.C. § 22 et seq., and the Federal Railroad Safety Act, 45 U.S.C. § 421 et seq. Johnson sought compensation for Parker’s personal injuries, pursuant to 45 U.S.C. § 59, which provides:

“Any right of action given by this chapter to a person suffering injury shall survive to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee, and, if none, then of such employee’s parents; and, if none, then of the next of kin dependent upon such employee, but in such cases there shall be only one recovery for the same injury.”

(Emphasis added.)

Joining Johnson in the complaint was Roxanne Greene, as the administratrix of the estate of George Greene, her deceased husband. The allegations of Greene, whose husband died of lung cancer on November 29, 1993, paralleled those of Johnson, namely, that George Greene’s cancer resulted from exposure to asbestos and other toxic substances in the course of his employment by CSX. Like Johnson, she sought compensation for the personal injuries of her decedent, pursuant to 45 U.S.C. § 59.

CSX moved for a summary judgment as to the claims of both plaintiffs, on the ground that their claims were barred by the limitations period in 45 U.S.C. § 56 (“No action shall be maintained under this chapter unless commenced within three years from the day the cause of action accrued.”).

The trial court granted the motion, and the plaintiffs appealed. On appeal, the plaintiffs contend that their respective decedents died from latent occupational diseases, and, consequently, that their actions were timely filed, pursuant to the latent-injury-discovery rule recognized by Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949), and refined by United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979).

Urie was a FELA personal-injury action commenced by a former railroad employee, who allegedly developed silicosis in the course of his employment. 337 U.S. at 165-66, 69 S.Ct. 1018. The United States Supreme Court stated: ‘“[Ijnasmuch as the injurious consequences of the exposure are the product of a period of time rather than a point of time ... the afflicted employee can be held to be “injured” only when the accumulated effects of the deleterious substance manifest themselves....’” 337 U.S. at 170, 69 S.Ct. 1018 (quoting Associated Indem. Corp. v. Industrial Accident Comm’n, 124 Cal.App. 378, 381, 12 P.2d 1075, 1076 (1932)). Kubrick was a Federal Tort Claims Act (“FTCA”) action, commenced by an alleged victim of medical malpractice, arising out of his treatment at a Veterans’ Administration hospital. 444 U.S. at 113-14, 100 S.Ct. 352. There, the United States Supreme Court held that a FTCA action accrues when “a plaintiff [is] in possession of the critical facts that he has been hurt and who has inflicted the injury.” 444 U.S. at 122, 100 S.Ct. 352. The rule stated in Kubrick is applicable in FELA actions. Fries v. Chicago & Northwestern Transp. Co., 909 F.2d 1092 (7th Cir.1990). Together, Urie and Kubrick stand for the proposition that a FELA “cause of action accrues for statute of limitation purposes when a reasonable [employee] knows or in the exercise of reasonable diligence should have known of both the injury and its governing cause.” 909 F.2d at 1095. See also Kindred v. Burlington Northern R.R., 742 So.2d 155, 157 (Ala.1999) (“a FELA cause of action accrues when an injured [employee] knows, or in the exercise of reasonable diligence should know, of facts indicating that the cause of the injury is work-related”).

Johnson and Greene insist that they did not learn of a possible connection between their decedents’ lung cancers and their employment until less than three years before commencing this action. They contend that a jury question is presented as to whether their causes of action accrued more than three years before the commencement of this action, that is, whether they acted reasonably in failing to discover the possible connections between their decedents’ illnesses and their employment. In neither Urie nor Kubrick, however, had the plaintiff died as a result of his injuries. Thus, Johnson and Greene propose that the discovery rule be extended to personal representatives of FELA employees. Consequently, they invite this Court to hold that the cause of action for personal injury to Edward Parker might have “accrued” more than 26 years after his death.

The plaintiffs cite no appellate case on point, that is, they cite no FELA case in which the personal representative’s personal-injury claim was filed more than three years after the employee’s death. The parties do cite numerous FELA cases involving a claim brought by an injured employee. We deem the issue in those cases to be fundamentally different from the one presented here. Indeed, the plaintiffs cite only one case on point, namely, Curry v. Consolidated Rail Corp., 766 F.Supp. 380 (W.D.Pa.1991).

In that FELA case, the United States District Court for the Western District of Pennsylvania denied a summary-judgment motion filed by Consolidated Rail Corp. (“Consolidated”). 766 F.Supp. at 384. The action against Consolidated was commenced by Betty Curry, the widow and personal representative of Gerald Curry, a deceased employee, alleging that the lung cancer from which her husband died resulted from exposure to asbestos in the course of his employment by Consolidated. 766 F.Supp. at 381-82. The action was commenced more than four years after Gerald Curry’s death, and Consolidated argued that, as a matter of law, the cause of action accrued — at the latest — on the date of Curry’s death. 766 F.Supp. at 381-82.

The trial court rejected that argument, essentially citing nothing but Urie and Kubrick, which, as we have already noted, are inapposite. In other words, the court offered no explanation or justification for extending the discovery rule to personal representatives.

In that connection, CSX concedes that the latent-injury-discovery rule is applicable in FELA actions brought by the injured employee. It argues, however, that the rule does not apply to FELA actions brought by the employees’ personal representatives, seeking recovery for personal injuries allegedly suffered by the deceased employees in the course of their employment. Like the defendant in Curry, CSX contends that such a cause of action can accrue no later than the date of the employee’s death. We agree with CSX.

Significantly, the plaintiffs are not seeking a recovery for wrongful death. Had they brought such a claim, they would have had to contend directly with Reading Co. v. Koons, 271 U.S. 58, 46 S.Ct. 405, 70 L.Ed. 835 (1926), which held that a FELA cause of action for wrongful death accrues on the date of death. We think, however, that the Reading rule cannot be avoided simply by pleading in the alternative, as these plaintiffs have done.

The dispute in Reading arose out of the death on April 23, 1915, of Lester M. Koons, an employee of Philadelphia & Reading Railway Company (“Reading”), from injuries he received the previous day in the course of his employment. 271 U.S. at 59, 46 S.Ct. 405. On September 23, 1921, John L. Koons received letters of administration. Id. “Five months later, on February 6, 1922, nearly seven years after the death” of his decedent, Koons commenced a FELA wrongful-death action against Reading. Id.

The Pennsylvania courts held that the action was not barred by the statute of limitations, and the United States Supreme Court granted Reading’s petition for certiorari review. Id. The sole issue before the Court was whether the limitations period began to run with the death of the employee or the appointment of the administrator. 271 U.S. at 59-60, 46 S.Ct. 405. If the former, the action was time barred. As the Court stated:

“The application of this statute [of limitations] turns on the question whether the cause of action created by the act may be deemed to ham ‘accrued,’ within the meaning of the act, at the time of death or on the appointment of the administrator, who is the only person authorized by the statute to maintain the action.”

271 U.S. at 60, 46 S.Ct. 405 (emphasis added). Holding that the administrator’s action was barred by the statute of limitations, the Court reversed the judgment of the Pennsylvania Supreme Court. 271 U.S. at 65, 46 S.Ct. 405.

In doing so, it discussed statutory history, Congressional intent, and the purpose of the statute of limitations, vis-á-vis both wrongful-death and survival actions under FELA. The Court’s discussion and holding are antithetical to the argument made by the plaintiffs in this case, namely, that a personal-injury action might “accrue” after the employee’s death. For that reason, we set forth that discussion at length:

“The language of the statute evidences an intention to set a definite limit to the period within which an action may be brought under it, without reference to the exigencies which arise from the administration of a decedent’s estate. The statute relates not only to causes of action for wrongful death but to causes of action for other injuries. Where the cause of action for personal injury survives to personal representatives of an injured employee who dies after the injury from other causes, the language of the statute seems peremptorily to require the action to be brought within [three] years from the time of injury, without regard to any intervening period after death when there is no executor or administrator. ...
“It cannot be supposed that Congress, in enacting the statute, intended to impose a fixed limitation of [three] years within which all actions for personal injury must be begun, regardless of death and of the time of appointment of an administrator of the injured employee, and at the same time intended to allow an indefinite period within which application may be made for the appointment of an administrator as the prerequisite to an action to recover for wrongful death. Indeed the limitation would seem to be more necessary in the case of personal injuries than in the case of a wrongful death; for in the former case some part of the period of limitations will have run at the time of death. This inconsistency is avoided if the word ‘accrued, whether applied to causes of action for personal injury or for wrongful death, be taken to apply uniformly to the time when the events have occurred which determine that the carrier is liable, even though the particular person through whose agency the liability is to be enforced, has not been designated.
“It is argued that, as it was provided by Lord Campbell’s Act that the period of limitation should run from the time of death, the omission of that phraseology from the Employers’ Liability Act indicates that it was the intention of Congress that the statutory period should run from a different time, namely, from the time of the appointment of an administrator. This argument, however, leaves out of account the fact that the present statute deals with causes of action arising from personal injury as well as causes of action arising from a wrongful death. The limitation that no action shall be maintained under this Act unless commenced within [three] years from the day the cause of action accrued, applies to both. This accounts for the omission of any specific reference to death in fixing the period of limitation; and the fact that the limitation is made applicable equally to the two causes of action, one of which admittedly ‘accrues’ on the happening of the events which fix the defendant’s liability, leads persuasively to the conclusion that a like test was intended for determining when the cause of action accrued for wrongful death.
“Every practical consideration which would lead to the imposition of any period of limitation, would require that the period should begin to run from the definitely ascertained time of death rather than the uncertain time of the appointment of an administrator. Here the appointment was not made until six years after the death. No reason appears, if the opinion of the court below is followed, why the time might not have been extended indefinitely by the failure to apply for administration. The only persons who can procure the appointment of an administrator are ordinarily spouse, next of kin, or creditors of the decedent. Certainly the common carrier would have no standing to make the application. The very purpose of a period of limitation is that there may be, at some definitely ascertainable period, an end to litigation. If the persons who are designated beneficiaries of the right of action created may choose their own time for applying for the appointment of an administrator and consequently for setting the statute running, the [three]year period of limitation so far as it applies to actions for wrongful death might as well have been omitted from the statute. An interpretation of a statute purporting to set a definite limitation upon the time of bringing action, without saving clauses, which would, nevertheless, leave defendants subject indefinitely to actions for the wrong done, would, we think, defeat its obvious purpose. There is nothing in the language of the statute to require, or indeed to support, such an interpretation.”

271 U.S. at 63-65, 46 S.Ct. 405 (emphasis added; citations omitted).

Of course, Reading predated Urie. Nevertheless, extending the discovery rule to the personal representative of a deceased employee in a FELA personal-injury action would require us to overlook Reading. This is so, because such an extension would revive all the uncertainties with regard to the timing of wrongful-death actions that Reading sought to avoid. Of the several observations contained in Reading that counsel against the rule proposed by the plaintiffs in this case, we note the following points in particular.

First, the Court noted that FELA contains one limitations period, applicable to both personal-injury and wrongful-death actions, and explained that it was the intent of Congress to “impose a fixed limitation of [three] years within which all actions for personal injury must be begun, regardless of death and of the time of appointment of an administrator.” 271 U.S. at 63, 46 S.Ct. 405. In other words, the death of the employee does not toll the accrual of a personal-injury claim. Second, and similarly, in order to produce consistency, the Court mandated a uniform application of the term “ ‘accrued,’ whether applied to causes of action for personal injury or for wrongful death.” 271 U.S. at 63-64, 46 S.Ct. 405. The consistency with which the Court was concerned can be achieved only by holding that a FELA personal-injury claim must accrue no later than the day the employee dies. Otherwise, a wrongful-death action would accrue, pursuant to Reading, upon the death of the employee, but the personal-injury claim would accrue only when the personal representative, whenever such individual could be identified and qualified, discovered, or should have discovered, the occupational nature of the illness.

Such would be the result if we extended the discovery rule to personal representatives, as the plaintiffs propose. Under such a rule, liability for the wrongful death of an employee would be extinguished three years after the death of the employee, while liability for the personal injury of that same employee could be held in abeyance indefinitely. This result would be clearly contrary to the policies and doctrine expressed in Reading, as well as to logic. Indeed, there is something logically amiss in the notion that a cause of action for personal injury can “accrue” decades after the employee, who has died, can neither discover, nor suffer, anything further.

Moreover, “[t]he community-disturbing event of death is likely to prompt immediate focus by third parties upon the cause thereof, thereby eliminating one possible delay involved in assembling a personal injury case.” Cadieux v. International Tel. & Tel. Corp., 593 F.2d 142, 145 (1st Cir.1979). Survivors routinely seek medical and legal advice in the event of death. Thus, the FELA employee’s death adds a significant dimension to a Urie-Kubrick analysis, a fact that Curry, supra, seems to have overlooked. It is one thing to toll the limitations period while the employee lives. However, as CSX points out, “extending] the tolling of the statute of limitations until the death of the last surviving statutory beneficiary [under § 59]” could lead to absurd results. Brief of CSX, at 23. “[I]f there was living an infant dependent next-of-kin at the time the [employee] died, and if the personal representative did not discover the alleged cause of death until the infant was a senior citizen, there could be an effective tolling of sixty or more years.” Id. That this scenario is more than theoretical is illustrated by Johnson’s claims in this case, brought nearly three decades after her father’s death. We conclude that death is sufficiently significant to trigger the accrual, not only of a cause of action for wrongful death, but also of a cause of action for personal injuries.

Consequently, until the United States Supreme Court revisits Reading, we are compelled to hold that the Urie-Kubrick discovery rule applies only to discovery by the railroad employees themselves, and not to discovery by the personal representatives of deceased railroad employees, bringing actions, pursuant to 45 U.S.C. § 59, for personal injuries allegedly incurred in the course of their employment. Cf. McGhee v. Chesapeake & Ohio R.R., 173 F.Supp. 587 (W.D.Mich.1959) (personal representative’s wrongful-death and personal-injury FELA claims were timely, inasmuch as they were brought within three years of the date of death). Thus, because the claims of Johnson and Greene were brought more than three years after the deaths of the CSX employees on whose behalf they were asserting the claims, their claims are barred by the statute of limitations. The summary judgment in favor of CSX is affirmed.

AFFIRMED.

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

MOORE, C.J., and LYONS, J., concur in the result.

LYONS, Justice

(concurring in the result).

Congress fixed the statute of limitations for actions arising under the Federal Employers’ Liability Act (“FELA”) at “three years from the day the cause of action accrued.” 45 U.S.C. § 56. The United States Supreme Court established the time of injury as the moment of accrual and defined injury as occurring “ ‘only when the accumulated effects of the deleterious substance manifest themselves.’ ” Urie v. Thompson, 337 U.S. 163, 170, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949) (quoting Associated Indem. Corp. v. Industrial Accident Comm’n, 124 Cal.App. 378, 381, 12 P.2d 1075, 1076 (1932)). Put another way, the action does not accrue until the injured employee “knows, or in the exercise of reasonable diligence should know, of facts indicating that the cause of the injury is work-related.” Kindred v. Burlington Northern R.R., 742 So.2d 155, 157 (Ala.1999).

Congress provided for the survival of FELA actions, but restricted survival to instances of “a person suffering injury.” 45 U.S.C. § 59. At the time of the deaths of the deceased railroad employees in this case, it is undisputed that they had no knowledge of the work-related nature of their respective injuries. Under Uñe, at the time of death, neither employee was “a person suffering injury.” The actions by Greene and Johnson alleging that the employees suffered personal injury prior to death therefore do not survive because survival of the rights to personal representatives occurs only in instances of “a person suffering injury.” I therefore concur in the result.

      . The Kubrick Court recognized that a discovery rule was emerging in FTCA cases, based on Urie. 444 U.S. at 120 n. 7, 100 S.Ct. 352.

      . "FELA creates two separate causes of action which may apply in the event of the death of a ... railroad worker: personal injury or wrongful death (45 U.S.C. § 51). An action for personal injury survives the death of the [worker] (survival action) (45 U.S.C. § 59).” Miller v. Foster Wheeler Co., 98 Wash.App. 712, 715, 993 P.2d 917, 920 (1999). "A wrongful death action compensates beneficiaries for their own pecuniary losses sustained as a result of the death, while a personal injury survival action compensates for the personal injury to, and losses sustained by, the [worker].” 98 Wash.App. at 716, 993 P.2d at 920. See also Van Beeck v. Sabine Towing Co., 300 U.S. 342, 347, 57 S.Ct. 452, 81 L.Ed. 685 (1937); Baltimore & Ohio S.W.R.R. v. Carroll, 280 U.S. 491, 494, 50 S.Ct. 182, 74 L.Ed. 566 (1930); Rodzik v. New York Cent. R.R., 169 F.Supp. 803, 805 (E.D.Mich.1959).

      . We omit any discussion of cases involving a claim brought by an injured employee.

      . It is unclear whether Curry’s complaint stated claims for personal injury, wrongful death, or both.

      . The court also relied on Kichline v. Consolidated Rail Corp., 800 F.2d 356 (3d Cir.1986), which, like Urie and Kubrick, involved personal-injury claims by the injured employee, not by a personal representative. Thus, all three cases on which the court relied are inapposite for the same reason.