text:
    FAMILY DOLLAR STORES OF MISSISSIPPI, INC., Appellant/Cross-Appellee v. Charles N. MONTGOMERY, Jr. and Bowman Electric Services, Inc., Appellees/Cross-Appellants.
    No. 2005-CA-00126-COA.
    Court of Appeals of Mississippi.
    Dec. 12, 2006.

      Hugh Gillon, attorney for appellant.
    Tim Waycaster, Richard D. Underwood, attorneys for appellees.
    Before MYERS, P.J., SOUTHWICK and GRIFFIS, JJ.
   SOUTHWICK, J.,

for the Court.

¶ 1. Patrons and employees of a Family Dollar store in Fayette, Mississippi brought suit for injuries sustained when the roof of the store partially collapsed during an expansion project. The personal injury claims were settled prior to trial. The remaining parties include the building owner, the contractor, and Family Dollar. The Jefferson County Circuit Court, after a bench trial, allocated fault to all defendants, refused to order the contractor to indemnify Family Dollar, and established the amount of damages. Family Dollar appeals on several issues, and the building owner cross-appeals on the amount of damages. We find error as to the basis on which Family Dollar was found liable. We reverse and remand for further proceedings.

FACTS

¶ 2. Charles Montgomery Jr. owned a building in Fayette, Mississippi which he first leased to a Family Dollar corporate entity in 1982. The current lease is between Montgomery and Family Dollar Stores of Mississippi, Inc. The lease was amended in 1994 due to an anticipated expansion of the store. Family Dollar was to make the improvements at its own expense, in a workmanlike manner and in compliance with all applicable building codes.

¶ 3. In 2001, Family Dollar hired Bowman Electric Service, Inc. as the general contractor for the expansion. Bowman was not licensed as a general contractor. It had been thirty-five years since he had been involved with a project requiring removal of a load-bearing wall. Bowman subcontracted certain work to Will T. Turner, including removal of a load-bearing wall. On May 21, 2001, Turner was in the process of removing that wall when the roof of the building partially collapsed. The store was open for business when this accident occurred. Patrons and employees who were in the store at the time of the accident alleged personal injuries. Family Dollar settled all of the personal injury claims that had been filed and took an assignment of the claims that it had settled.

¶ 4. Montgomery brought suit for breach of contract against Family Dollar, and a negligence claim against the contractor Bowman. Family Dollar cross-claimed against Bowman for indemnity and counter-claimed against Montgomery on the assigned personal injury claims.

¶ 5. The court found that the roof collapsed because inadequate supports were utilized while removing the load-bearing wall. Montgomery was awarded a total of $211,786.28 in damages and was not apportioned any liability. Liability for all the damages was apportioned as follows: Family Dollar fifty-percent, Bowman thirty-percent, and Turner twenty-percent.

¶ 6. Only Family Dollar and Montgomery appeal to seek reversal of parts of the judgment.

DISCUSSION

¶ 7. The findings of a court conducting a bench trial are given the same deference that a chancellor receives; those findings will not be disturbed when supported by “substantial, credible, and reasonable evidence.” City of Jackson v. Brister, 838 So.2d 274, 278 (Miss.2003). Questions of law are reviewed de novo. Donald v. Amoco Prod. Co., 735 So.2d 161, 165 (Miss.1999).

1. Apportionment of Fault to Family Dollar

¶ 8. The court allocated half the fault for the damages to Family Dollar. One of the reasons was that Family Dollar provided the “Scope of Work” to be performed under the contract with Bowman. More importantly to the court, the liability arose from a contract between Family Dollar and the contractor, Montgomery. In the form contract, a blank for designating an architect was completed by identifying Family Dollar as filling that role. There was no description of the architect’s duties. The court accepted expert opinion that Family Dollar as the designated architect breached its implied duties by failing to advise the contractors concerning the temporary shoring of the structure.

¶ 9. Family Dollar did not offer any expert testimony indicating a more limited set of duties for an architect. Instead, it argued that the form contract had been improperly completed and that the entry for an architect should have been left blank. Family Dollar argues that neither itself nor Bowman intended for there to be an architect on the project. There was substantial evidence on which Montgomery relies that Family Dollar ignored its responsibilities as an architect. Family Dollar points to the same evidence as support for the parties’ understanding that there was no architect. Further, Family Dollar argues that since the contract provided no duties for whomever was named architect, expert testimony as to an architect’s general responsibilities could not import such duties into the silent contract.

¶ 10. It is a question of fact of whether Family Dollar was identified as the architect in this contract simply as a mistake when the form was being completed. Family Dollar made that argument, but the trial court never addressed it. Instead, the court in its findings recited the expert’s opinion that an architect should advise a contractor on the suitability of removing a load-bearing wall. The argument that Family Dollar was making is that there never was an intent to have an architect, that none was used, and that naming Family Dollar as the architect was the result of a mutual mistake. That the clear language of a contract does not accurately reflect the intentions of the parties is a proper issue for consideration. Dunn v. Dunn, 786 So.2d 1045, 1050 (Miss.2001).

¶ 11. A different and largely unrelated problem with the trial court’s decision is that it imposed general, non-contractual duties on Family Dollar simply because the contract identified it as the architect. There was evidence that the complete form from- which the contract was derived has other pages describing an architect’s duties, but those were not included with what was executed. The word “architect” appears in the executed contract only twice. One is on the cover sheet, which had blanks for designating the parties. The other is in the attachment entitled “Scope of Work,” in which Family Dollar required that the plans be sent to its architect in North Carolina. Duties of the contractor and owner are described throughout the contract, but there is no other mention of an architect.

¶ 12. Accepting for purposes of analysis that Family Dollar was the architect, we evaluate as'a question of law the trial court’s decision to import duties for an architect into a contract that is silent about the duties. Engineers and architects are held to a duty to “exercise ordinary professional skill and diligence,” duties usually controlled by the contracts between the parties. Hobson v. Waggoner Engineering, Inc., 878 So.2d 68, 77 (Miss. Ct.App.2003). Only in limited circumstances will architects, independently of express contract language, have “a duty to supervise the construction site to ensure safe operations.” Id. at 71-72. “Unless the architect has undertaken by conduct or -contract to supervise a construction project, he is under no duty to notify or warn workers or employees of the contractor or subcontractor of hazardous conditions on the construction site.” Jones v. James Reeves Contractors, 701 So.2d 774, 786 (Miss.1997).

¶ 13. The trial court found Family Dollar liable because as architect it should have been on the scene to advise the contractor on the temporary shoring while the load-bearing wall was being removed. An office of Family Dollar in North Carolina was to be sent the plans, but there is no suggestion that the corporate architect supervised work or that the plans it was to be sent referred to temporary construction measures. Most importantly, the contract contained no language describing any duties for Family Dollar as architect. Absent a contractual duty such as to supervise the project, there can be no assignment to the architect of the James Reeves — style duty of warning about hazardous conditions, which temporary measures during removal of load-bearing wall proved to be.

¶ 14. Regardless of the answer to the unresolved question of whether naming Family Dollar as the architect in the construction project was a mutual mistake, even as architect, Family Dollar would not have had the, duty that is the basis for the liability assigned to it. Consequently, the construction contract was an improper source for liability.

¶ 15. There was a second contract argued below as creating obligations on Family Dollar that it did not fulfill. The court found that Family Dollar had duties relevant to this litigation based upon its lease. The 1982 lease gave Family Dollar the right to make alterations to the premises, but it had to acquire Montgomery’s consent to make “structural changes,” consent that was not to be withheld unreasonably. Montgomery presented evidence that he objected to the removal of the load-bearing wall, though the trial judge did not rely on that alleged refusal. Under the 1994 amendment to the lease, which contemplated the expansion of the store into the entirety of Montgomery’s building, Family Dollar was given the right to make “improvements and alterations” to combine the newly leased space with the existing store. The “work performed by [Family Dollar] shall be done in a workmanlike manner and in compliance with all applicable building codes.” It is unclear whether this amendment should be interpreted to have removed the requirement of obtaining the permission of the owner to make structural changes, as the earlier lease terms were continued only to the extent they were not modified by the amendment.

¶ 16. The trial court did not accept that the lease made Family Dollar totally responsible to the landlord for the damage, with Family Dollar then potentially having a right of indemnity. Instead, the court held that the contractor was responsible for the damage because of his oversight duties. The subcontractor who actually removed the load-bearing wall also was liable. Family Dollar was found to be responsible as the architect, a conclusion we have rejected. The court noted Family Dollar also had duties under the lease to assure that renovations were completed in a workmanlike manner, and the court found that Family Dollar had chosen to perform those responsibilities as the architect. By merging the lease responsibilities with the perceived architect duties, the trial court never determined whether Family Dollar strictly as a lessee had breached its obligation to its landlord that the alterations be made in a workmanlike manner and in compliance with all applicable building codes.

¶ 17. To understand what duties Family Dollar as lessee might have had, we examine Montgomery’s argument. He asserted that Family Dollar breached its contractual duties as lessee by hiring an electrical contractor as the general contractor, failing to inquire concerning licensing and qualifications of Bowman and subcontractors, not being diligent in the oversight of the project, and by failing to provide engineering expertise or plans and specifications. Some of those arguments better fit claims against Family Dollar as alleged architect, but at least the hiring of a potentially unqualified general contractor is a legitimate basis to argue a breach of the lease.

¶ 18. We conclude that Family Dollar’s possible breach of the lease is an issue for remand to the trial court. On remand, the court should consider as fact-finder the evidence that has already been presented and additional evidence if in its discretion a new evidentiary hearing is needed. The legal issue against which that evidence is to be tested is whether Family Dollar breached its obligations strictly as lessee such as to assure that improvements to the property were performed in a workmanlike manner. No duties of an architect should be entangled with the duties under the lease.

¶ 19. Also an issue on appeal is whether the absence of a specific negligence claim against Family Dollar in the complaint prevented it from being assigned any fault in the accident. A motion to amend was discussed, but the trial judge found no need for an explicit claim of negligence. The court found that proof of negligent performance of Family Dollar’s duties as architect or under the lease would support liability on the complaint as written.

¶ 20. On appeal, Family Dollar argues that it cannot be assigned comparative fault unless it is considered a “tortfeasor” as opposed to a breaker of contracts. A statute defines comparative fault as “an act or omission of a person which is a proximate cause of injury” to another, “including, but not limited to, negligence, malpractice, strict liability, absolute liability or failure to warn.” Miss.Code Ann. § 85-5-7 (Supp.2006). This statutory list indicates by the word “including” that it is non-exclusive. A dissenting justice on the Supreme Court once enlarged the list in arguing that the statute was unconstitutional since it required a court “to instruct a jury to bring in all of the players involved with the elements of absolute liability, strict liability, negligence, failure to warn, and breach of contract.” Estate of Hunter v. Gen. Motors Corp., 729 So.2d 1264, 1282 (Miss.1999) (McRae, J, dissenting). The court majority obviously did not agree with the basic dissent argument and may not have agreed with the adding of contract breaches to the reach of the statute.

¶21. Family Dollar cites one of our cases as support for the argument that it is improper to mix contract breaches with torts to form comparative fault. Capital City Ins. Co. v. Ringgold Timber Co., Inc., 898 So.2d 680 (Miss.Ct.App.2004), cert. denied, 898 So.2d 679 (Miss.2005). This court held that when an insurance company was joined in a case solely on the issue of whether its policy covered the improper timber cutting, it could not be found a joint tortfeasor with those who had illegally cut the timber. Id. at 683. No claim had been made against the insurance company that it “played a role in the overcut of timber” by the other defendants. Id. By making it a joint tortfeasor, the trial court expanded the insurance company’s liability beyond its policy limits. We did not analyze whether those who breached a contract could never be joined in an allocation of fault with those who committed torts.

¶ 22. In some cases, the breach of contract obligations in combination with the negligence of others might join to form a common injury. Yet if one party’s contribution to damage is passive, such as creating the conditions, while other parties are the active agents of harm, that is a situation in which the contribution to the harm is not joint. Long Term Care, Inc. v. Jesco, Inc., 560 So.2d 717, 721 (Miss. 1990).. If assuring a workmanlike performance during renovations did not require Family Dollar to participate actively in the construction, such as by supervision, it might not be a joint-tortfeasor with those who were working on the renovations. If Family Dollar breached the lease but was not a joint tortfeasor, it may be entitled to indemnification. Id.

%. Indemnity

¶ 23. Family Dollar argues that the trial court erred in denying its indemnity claim against Bowman. Family Dollar asserts that the construction contract placed all risk on Bowman and required Bowman to deliver a completed project. Completion would require that the renovated building comply with all building codes. The contract was a “turnkey” project, which was identified below as a project in which Bowman completed the work and turned it over, at least figuratively with the key, to Family Dollar. .

¶ 24. The trial court denied indemnity because non-contractual indemnity does not arise if the entity to be indemnified participated actively in the wrong. Hartford Cas. Ins. Co. v. Halliburton Co., 826 So.2d 1206, 1216 (Miss.2001). Even had there been an indemnity clause, an express provision in a construction contract to indemnify a party from its own negligence is not enforceable. Miss.Code Ann. § 31-5-41 (Supp.2006). Applying that principle, the court held that Family Dollar’s negligent performance of its duties in supervising the project as architect made it ineligible for indemnity. Since we have reversed the finding regarding an architect’s duties and remanded for further proceedings, we now also reverse the denial of indemnity. This issue should be reconsidered in light of the conclusions that must be reached as to whether Family Dollar failed to sustain its duties as lessee.

3. Rost-Judgment Motions

¶ 25. Family Dollar’s motions to amend the judgment and for a new trial were denied. Since we are reversing, Family Dollar’s appellate arguments as to the denial of these motions are moot.

CROSS-APPEAL

1. Apportionment of Fault to Turner

¶ 26. Montgomery argues that fault should not have been apportioned to Turner, the subcontractor who removed the load-bearing wall. Turner is not a party to this litigation. Though a non-party, Turner was allocated twenty-percent of the fault for the accident. Assigning fault to participants in an injury who are absent from the litigation is proper. Estate of Hunter, 729 So.2d at 1276.

¶ 27. Montgomery submits that Family Dollar and Bowman were fully responsible for the accident because Turner relied on the instruction of Family Dollar and Bowman to remove the wall. Turner could reasonably assume that both parties, because of their experience in such projects, had done the proper engineering to ensure the safe removal of the wall. Montgomery argues that Turner thought his plan for removing the wall was appropriate because Family Dollar’s project manager and Bowman reviewed and did not question Turner’s plan for bracing the roof.

¶ 28. Apportionment of fault among potential joint tortfeasors is a question of fact. City of Ellisville v. Richardson, 913 So.2d 973, 980 (Miss.2005); Miss. Code Ann. § 85-5-7 (Supp.2005). There was evidence that Turner employees were the only individuals working on the renovation project when the roof collapsed. The trial court found that the roof collapsed due to inadequate supports being utilized during the removal of the load-bearing wall. . The trial court found that Turner was responsible for removal of the load-bearing wall and was the party that actually positioned the roof supports in the process of removing the wall. The court determined that Turner was principally responsible for the roof collapse. This finding is supported by the record.

2. Building Valuation

¶ 29. The court awarded Montgomery damages based upon the physical damage to the building and the loss of income derived from the lease with Family Dollar. The court concluded the lease would have expired twenty-nine months after the roof collapse, and it was too speculative to award damages on the assumption that the lease would have been renewed at that time. Therefore, the award was the difference between the fair market value of the building before and after the damage, and rent for the remainder of the then-current term of the lease.

¶ 30. The general measure of damages for permanent injury to land that does not involve willful trespass is the difference between the value of the property before the damage and the value after-wards. Harrison v. McMillan, 828 So.2d 756, 769 (Miss.2002). If the repair cost is less than the post-damage value of the property, an alternative measure for damages is the repair cost plus compensation for the lost use. Id. Appraising the before-damage value should consider three methods of valuation: the income approach, cost approach, and market data/ sales comparison approach. Crocker v. Miss. State Highway Comm’n, 534 So.2d 549, 553 (Miss.1988). Although not required in every appraisal, in the context of determining the value of commercial property, “all three methods of valuation could be relevant and useful and, at a minimum, should be considered.” Eller Media v. Miss. Transp. Comm’n, 882 So.2d 198, 203 (Miss.2004)

¶ 31. The court was presented with different estimates of value and costs of repair. Family Dollar’s expert, Willie Hill, appraised the property at $235,000 prior to being damaged. Hill testified that the salvage value of the building in the collapsed condition was $89,000. Hill’s appraisal was the result of the cost approach and an examination of comparable sales. Hill stated in his report that he did not think a valuation based on the property’s income was applicable because the building was collapsed and could not produce income. Family Dollar also provided the testimony of builder Dennis Allred that the cost of repair was $156,000. Montgomery offered the testimony of Richard Edgin concerning the salvage value and cost of repair. Ed-gin testified that the building had no salvage value because the cost of getting materials from the destroyed structure was more than the materials were worth. He also testified that the cost of repair would be $369,000.

¶ 32. Montgomery did not offer the same kind of valuation as did Family Dollar. Instead, he presented the testimony of Bill Rush Mosby, a certified public accountant. Mosby testified that the value of the income stream of the property was $453,698.50. Mosby calculated fair market value by dividing the net rent (gross rent less the taxes the landlord paid) that Montgomery received per year by a six percent capitalization rate. This income-approach valuation was based on the past income performance. Mosby apparently assumed that the lease would continue indefinitely. His testimony relied upon a set capitalization rate that Family Dollar argues was unusual and erroneous. Also argued below was that the capitalization rate used to value property should vary depending on the area in which the property is located, which could result in a much lower estimate of the property’s value than Mosby gave. The credibility of Mosby’s valuation was diminished by his admission that he did not look at the lease and never considered the local real estate market.

¶ 33. Two critical components of the trial court’s valuation of the lease were that the lease had less than three years until it expired and would need to be renewed, and that the tenant had the right to terminate on sixty-days notice. The court found that it was not overly speculative to assume that Family Dollar would have continued the lease until the end of the lease term in December 2003, but the court would not base value on an assumption that the lease would be renewed thereafter. Family Dollar had multiple options to renew the lease for an additional twenty years after the current lease expired. The court awarded damages for Montgomery’s loss of income by multiplying the monthly rent by the twenty-nine months that had been left in the lease term, then deducting the property taxes that Montgomery would pay. Awarded as lost income was $65,786.28.

¶ 34. The court adopted the salvage value figure provided by Hill as reliable because Hill was a certified appraiser and explained the method by which the value was determined. Edgin provided no basis for his salvage value calculation. The court found that Edgin provided a more accurate repair cost because it was the product of a thorough review of the property. Family Dollar’s expert did not provide a price breakdown of the costs. Since the court-accepted estimates of repair costs were higher than the value of the building, the court determined that the property was a total loss and that Montgomery was entitled to $146,000 for the loss of value of the property.

¶ 35. Damages relating to a contract that is terminable at-will is a factual issue to be determined by the fact-finder. The damages awarded should place Montgomery in the position he would have been in but for the breach of his contract. Frierson v. Delta Outdoor, Inc., 794 So.2d 220, 225 (Miss.2001). Montgomery argues that Willie Hill, Family Dollar’s appraiser, erred in using a sale comparison approach and not an income stream approach. Beginning with the 1982 lease, Family Dollar had continuously occupied part of the building and was expanding to occupy the remainder when the damage occurred. Considerable sums of money were being expended to improve the store, a far greater investment than just occupying the building for another twenty-nine months might have justified. Far from being too speculative to consider that the lease would be renewed, Montgomery , argues it was too short-sighted to calculate on the basis that the lease would end in 2003. Montgomery argues that his evidence at trial, which assigned a higher before-damage market value, supported the conclusion that the building was only a partial loss and should be repaired.

¶ 36. There were arguments below and here regarding the market conditions in the location of this business, and whether the value accepted for the premises before the damage properly took into account its income-producing record and potential. We find no error in the trial court’s basic approach to assign a value that represents what the property was worth before the damage, which would include the value not just of an empty building but of rented property with good prospects for continued renting. An offsetting value is what the property was worth after the damage, including whether the costs of repairs are too great compared to the value of the building.

¶ 37. There are several recognized methods of valuing business property. The trial court chose among those upon which evidence was offered. The goal in this part of the litigation was to determine the value of what Montgomery had before the damage and to place him back in that position. Total damages were awarded to Montgomery by considering various methods of appraisal. We find no fundamental error in the choices that the trial court made. We also conclude that a large amount of discretion was applied. Since we are reversing the judgment, the decision on damages may be reconsidered before a new final judgment is entered. Should the trial court continue to consider its prior conclusions as to damages correct, we find that to be sustainable. Should in the course of reconsidering the issues directed to him on the remand, further evaluation of the damage award appears in order, that is proper as well.

¶ 38. THE JUDGMENT OF THE JEFFERSON COUNTY CIRCUIT COURT IS REVERSED ON APPEAL, AFFIRMED ON CROSS-APPEAL, AND THE CAUSE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS OF THIS APPEAL ARE ASSESSED EQUALLY TO THE APPELLANT AND TO THE APPELLEES.

KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. IRVING, J., NOT PARTICIPATING.


source: Caselaw Access Project

author: SMITH, Justice.

license: Public Domain

text:
    Gail MUNNERLYN v. ALABAMA DEPARTMENT OF CORRECTIONS et al.
    1041492.
    Supreme Court of Alabama.
    June 9, 2006.
    Kenneth J. Mendelsohn, Thomas E. James, and Ellenann B. Yelverton of Jemi-son, Mendelsohn & James, P.C., Montgomery, for appellant.
    Kim T. Thomas, gen. counsel and deputy atty. gen., and Albert Sim Butler, asst, gen. counsel and asst. atty. gen., Alabama Department of Corrections, for appellees.
   SMITH, Justice.

Gail Munnerlyn, the plaintiff below, appeals from the order of the Montgomery Circuit Court dismissing her action against the State of Alabama Department of Corrections (“the DOC”); Michael Haley, the former commissioner of the DOC; Donal Campbell, the then current commissioner of the DOC; and Glen Newton, the former assistant commissioner of the DOC (hereinafter collectively “the defendants”). We affirm.

Facts and Procedural History

On May 20, 2000, Warren R. Robinson, a prison inmate, was driving a state-owned vehicle as part of the DOC’s work-release program. Robinson’s job was to transport inmates to and from work-release job sites. While he was driving the state-owned vehicle, Robinson backed into a vehicle driven by Munnerlyn, causing a collision. Robinson had no automobile insurance in place at the time of the collision, and he was not covered by the State Employees’ General Liability Trust Fund (“the Fund”).

On May 14, 2004, Munnerlyn sued Robinson; the DOC; Haley, in his individual capacity; Campbell, in his individual and official capacities; Newton, in his individual capacity; and various fictitiously named defendants. Munnerlyn alleged both individual claims and claims on behalf of a purported class. Specifically, ■ Munnerlyn alleged the following individual claims: (1) that Robinson, while driving a state-owned vehicle, had negligently backed the vehicle into Munnerlyn’s vehicle and (2) that the defendants and various fictitiously named defendants had negligently entrusted a state-owned vehicle to an incompetent and uninsured driver in violation of § 32-7A-4(a), Ala.Code 1975. Munnerlyn’s class-action claims were based upon the allegation that the putative class — all citizens of the State of Alabama — were at risk of immediate and irreparable personal injury or property damage as a result of inmates who had no automobile insurance driving state-owned vehicles in violation of § 32-7A-4(a); Ala.Code 1975. The complaint sought money damages for Munnerlyn; an order certifying a class action pursuant to Rule 23, Ala. R. Civ. P.; and an order enjoining the State of Alabama from allowing incarcerated inmates to drive state-owned vehicles without automobile insurance.

On July 6, 2004, the defendants filed a motion to dismiss or, in the alternative, for a summary judgment. The defendants argued that Munnerlyn could not meet the Rule 23, Ala. R. Civ. P., requirements for certification of a class, that the defendants were entitled to immunity, and that the defendants had not violated § 32-7A-4(a), Ala.Code 1975. Munnerlyn opposed the motion, arguing that the defendants were not entitled to immunity and that they had violated § 32-7A-4(a), Ala.Code 1975.

The trial court held a hearing on the defendants’ motion. According to the trial court’s final order, Munnerlyn acknowledged at the hearing that “Robinson was competent to drive and that.her only theory under [her claim alleging negligent en-trustment] concerned a negligent entrustment to an uninsured motorist in violation of § 32-7A-4.”

The trial court granted the defendants’ motion to dismiss as to all claims, finding that Munnerlyn failed to state a claim upon which relief could be granted. See Rule 12(b)(6), Ala. R. Civ. P. The trial court certified the judgment as to the defendants as final pursuant to Rule 54(b), Ala. R. Civ. P. Munnerlyn appealed.

Standard of Review

“ ‘The appropriate standard of review under Rule 12(b)(6)[, Ala. R. Civ. P.,] is whether, when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle her to relief. Raley v. Citibanc of Alabama/Andalusia, 474 So.2d 640, 641 (Ala.1985); Hill v. Falletta, 589 So.2d 746 (Ala.Civ.App. 1991). In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether she may possibly prevail. Fontenot v. Bramlett, 470 So.2d 669, 671 (Ala.1985); Rice v. United Ins. Co. of America, 465 So.2d 1100, 1101 (Ala. 1984). We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.’ ”

Beckerle v. Moore, 909 So.2d 185, 187 (Ala. 2005) (quoting Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993)).

Discussion

The basis of Munnerlyn’s claims is that the defendants violated § 32-7A-4(a), Ala.Code 1975, a part of the Alabama Mandatory Liability Insurance Act (“the Act”), which states, in pertinent part:

“No person shall operate, register, or maintain registration of, and no owner shall permit another person to operate, register, or maintain registration of, a motor vehicle designed to be used on a public highway unless the motor vehicle is covered by a liability insurance policy, motor vehicle liability bond, or deposit of cash.”

Munnerlyn argues that the defendants violated § 32-7A-4(a) by allowing Robinson to operate a state-owned vehicle without automobile liability insurance. However, the Act also states that it

“shall not apply to any of the following vehicles or operators:
“(2) Motor vehicles owned and operated by the United States or any agency thereof, the State of Alabama, or any political or governmental subdivision thereof.”

§ 32-7A-5(2), Ala.Code 1975. On appeal, Munnerlyn argues that the trial court erred in finding that the exception related to state-owned vehicles set out in § 32-7A-5(2) applied to the vehicle being driven by Robinson at the time of the accident. However, the defendants assert that, under the rules of statutory construction and under the plain meaning of the Act, the trial court’s finding is correct. We agree.

“In determining the meaning of a statute, this Court looks to the plain meaning of the words as written by the legislature. As we have said:
“ ‘ “Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.” ’
“Blue Cross & Blue Shield v. Nielsen, 714 So.2d 293, 296 (Ala.1998) (quoting IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992)); see also Tuscaloosa County Comm’n v. Deputy Sheriffs’ Ass’n, 589 So.2d 687, 689 (Ala.1991); Coastal States Gas Transmission Co. v. Alabama Pub. Serv. Comm’n, 524 So.2d 357, 360 (Ala. 1988); Alabama Farm Bureau Mut. Cas. Ins. Co. v. City of Hartselle, 460 So.2d 1219, 1223 (Ala.1984); Dumas Bros. Mfg. Co. v. Southern Guar. Ins. Co., 431 So.2d 534, 536 (Ala.1983); Town of Loxley v. Rosinton Water, Sewer, & Fire Protection Auth., Inc., 376 So.2d 705, 708 (Ala.1979). It is true that when looking at a statute we might sometimes think that the ramifications of the words are inefficient or unusual. However, it is our job to say what the law is, not to say what it should be. Therefore, only if there is no rational way to interpret the words as stated will we look beyond those words to determine legislative intent. To apply a different policy would turn this Court into a legislative body, and doing that, of course, would be utterly inconsistent with the doctrine of separation of powers. See Ex parte T.B., 698 So.2d 127, 130 (Ala.1997).
“... [T]he point is that it is not our place to engage in such a guessing game. That is why we must look first to the plain meaning of the words the legislature used. We should turn to extrinsic aids to determine the meaning of a piece of legislation only if we can draw no rational conclusion from a straightforward application of the terms of the statute.”

DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270, 275-77 (Ala. 1998).

Section 32-7A-5(2), Ala.Code 1975, is not ambiguous. Rather, it clearly states that the Act does not apply to vehicles owned by the State of Alabama. Therefore, in looking at the plain meaning of the words as written by the legislature, the state-owned-vehicle exemption clearly applies to the facts of this case.

Munnerlyn argues further that the legislature could not have intended to exempt inmates who drive state-owned vehicles with no automobile liability insurance when it enacted § 32-7A-5(2). Specifically, Munnerlyn contends that the legislature exempted state-owned vehicles from the Act because State employees, unlike Robinson, were already insured under the Fund. Pursuant to § 36-1-6, Ala.Code 1975, the Fund provides coverage for any State employee “who operates a motor vehicle in the performance of his or her duties,” insuring the employee against “personal liability arising out of and a proximate consequence of the operation of a motor vehicle.” Munnerlyn cites Ex parte Fontaine Trailer Co., 854 So.2d 71, 83 (Ala.2003), which states that “ ‘[i]t is a familiar principle of statutory interpretation that the Legislature, in enacting new legislation, is presumed to know the existing law”’ (quoting Blue Cross & Blue Shield of Alabama, Inc. v. Nielsen, 714 So.2d 293, 297 (Ala.1998)). Thus, Munner-lyn argues that the legislature, in enacting the state-owned-vehicle exception, is presumed to have known that existing laws provided motor-vehicle insurance coverage for State employees pursuant to § 36-1-6. Therefore, Munnerlyn asserts, in enacting the state-owned-vehicle exception, it was “clearly” not the intent of the legislature to allow inmates, who are not covered by the Fund, to drive state-owned vehicles without having automobile insurance.

Regardless, the plain language of § 32-7A-5(2) exempts state-owned vehicles from the requirement that drivers of motor vehicles must carry liability insurance. See DeKalb County LP Gas, 729 So.2d at 277 (holding that the Court should not attempt to determine “legislative intent” unless the Court “can draw no rational conclusion from a straightforward application of the terms of the statute”). Because the language of § 32-7A-5(2) is unambiguous, this Court will not venture to guess what the legislature might have intended. See DeKalb County LP Gas, 729 So.2d at 277 (“[I]t is not our place to engage in such a guessing game. That is why we must look first to the plain meaning of the words the legislature used.”). Therefore, by allowing an uninsured driver to operate a state-owned vehicle, the defendants did not violate § 32-7A-4(a) — the provision of the Act requiring that drivers of motor vehicles carry liability insurance.

“[T]he ramifications of the words [of § 32-7A-5(2) may be] inefficient or unusual”; however, “it is our job to say what the law is, not to say what it should be.” DeKalb County LP Gas, 729 So.2d at 276. See also Tolar Constr., LLC v. Kean Elec. Co., 944 So.2d 138, 152 (Ala.2006) (stating that “[i]t undeniably appears that ... ‘the ramifications of the words are inefficient or unusual,’ DeKalb County LP Gas, [729 So.2d at 276], but such considerations are of no import to this Court in the event the text is clear”). The law here clearly and unambiguously exempts state-owned vehicles from the Act. This Court cannot look beyond the plain meaning of § 32-7A-5(2) because to do so would be inconsistent with the separation-of-powers doctrine. That inmates should not be permitted to operate state-owned vehicles without automobile insurance is unquestionably a prudent policy; however, that argument “should be directed to the legislature, not to this Court.” DeKalb County LP Gas, 729 So.2d at 277. See also Pitts v. Gangi, 896 So.2d 433, 436 (Ala.2004) (“There is clearly a ‘rational’ way to view the words of the Legislature. It may not reflect a policy that the members of this Court would adopt, but that is an entirely different matter. If the Legislature intends this statute to be applied in a different manner, the Legislature may correct the statute in its own way and its own time.”); Simcala v. American Coal Trade, Inc., 821 So.2d 197, 203 (Ala.2001) (“If adverse effects on market conditions warrant a different result [than' that demanded by a ‘plain meaning’ interpretation,] it is for the Legislature, not this Court, to amend the statute.”); and Folmar & Assocs. LLP v. Holberg, 776 So.2d 112, 118 (Ala.2000) (“While there may be valid policy arguments for extending the Act ... ‘it is not for the Judiciary to impose its view on the Legislature.’ ” (quoting Ex parte T.B., 698 So.2d 127, 130 (Ala.1997))). We agree with the trial court’s finding that “§ 32-7A-4 and § 32-7A-5(2) are clear and unambiguous, and together the statutes exclude State-owned vehicles from the requirement that all motor vehicles must be insured.”

Conclusion

The basis of Munnerlyn’s individual and class-action claims is that the defendants violated the Mandatory Liability Insurance Act by allowing an uninsured driver to operate a state-owned vehicle. Because we find that the defendants did not violate the Act, Munnerlyn cannot prove any set of circumstances that would entitle her to relief. Therefore, we affirm the order of the trial court dismissing her claims against the defendants.

AFFIRMED.

NABERS, C.J., and LYONS, WOODALL, and PARKER, JJ., concur.

      . After the accident, Kim Higgens, the acting risk manager of the Fund, wrote a letter to Munnerlyn informing her that the Fund was not authorized to provide compensation for damage caused by prisoners in the custody of the DOC.

      . As explained in DeKalb County LP Gas, supra, this Court’s application of the plain-meaning rule is guided by Art. Ill, § 42, of the Alabama Constitution of 1901, which provides for the separation of powers between three departments of state government. See generally Marc James Ayers, Unpacking Alabama’s Plain-Meaning Rule of Statutory Interpretation, 67 Ala. Law. 31, 32 (Jan.2006).

      . The defendants claim in their brief on appeal that Munnerlyn can still seek relief from the Alabama Board of Adjustment. Section 41-9-62, Ala.Code 1975, states:
      "(á) The Board of Adjustment shall have the power and jurisdiction and it shall be its duty to hear and consider:
      "(1) All claims for damages to the person or property growing out of any injury done to either the person or property by the State of Alabama or any of its agencies, commissions, boards, institutions, or departments....”


author: WOODALL, Justice.

text:
    CINCINNATI INSURANCE COMPANIES, as subrogee of Sarah Fain and James Clyde Fain, Jr. v. BARBER INSULATION, INC., and Framco.
    1050485.
    Supreme Court of Alabama.
    June 9, 2006.

      John D. Richardson, Mark E. Spear, and John M. Teague of Richardson, Spear, Spear & Hamby, P.C., Mobile, for appellant.
    William R. Chandler and Richard D. Anderson, Montgomery, for appellee Barber Insulation, Inc.
    William Larkin Radney III of Barnes & Radney, P.C., Alexander City, for appellee Framco.
   WOODALL, Justice.

Cincinnati Insurance Companies (“CIC”), as subrogee of Sarah Fain and James Clyde Fain, Jr., appeals from a summary judgment in favor of defendant Barber Insulation, Inc. (“Barber”); the trial court’s order also enforced a settlement agreement allegedly entered into by CIC and Framco. We affirm in part, reverse in part, and remand.

I. Factual Background

This dispute arose out of a construction contract between the Fains and Dark Alexander & Company, Inc. (“Dark”), dated July 26, 2001, in which Dark agreed to serve as general contractor for the construction of a “lake house” for the Fains in Equality. Subsequently, Dark subcontracted the project to various entities, including Barber and Framco. Dark hired Framco for the framing and siding work, and it entered into an oral agreement with Barber to insulate the house. By February 12, 2002, the house was completed.

On January 25, 2003, a water pipe located in a wall of the house froze, burst, and flooded the interior of the house, causing approximately $63,500 in damage. At that time, the Fains had in force a homeowner’s insurance policy issued by CIC. CIC paid the Fains under the policy and sued Dark, Barber, and Framco, seeking to be subro-gated to the rights of the Fains for approximately $63,500. CIC sought recovery under claims of third-party-beneficiary breach of contract and negligence. CIC eventually settled its claims against Dark.

Barber filed a motion for a summary judgment. Framco filed a motion alleging that CIC had agreed during a mediation session to settle its claims against Framco for $1,000 and seeking an onder enforcing the alleged settlement agreement. On October 24, 2005, the trial court granted both motions. On appeal, CIC challenges that judgment as to both Barber and Framco. We first address the propriety of the summary judgment for Barber.

II. Summary Judgment

“Our review of a summary judgment is de novo.” Crutcher v. Wendy’s of North Alabama, Inc., 857 So.2d 82, 85 (Ala.2008). “Summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P.” Childersburg Bancorporation, Inc. v. Alabama Dep’t of Envtl. Mgmt., 893 So.2d 1142, 1145 (Ala. 2004). “Once the movant shows that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact.” Id. “In order to defeat a properly supported motion for a summary judgment, the nonmoving party must present substantial evidence that creates a genuine issue of material fact.” George v. Raine, 895 So.2d 258, 261 (Ala. 2004). Additionally, “the existence of a duty is a strictly legal question to be determined by the court.” Taylor v. Smith, 892 So.2d 887, 891 (Ala.2004). CIC contends that it met its burden as the nonmovant and is entitled to a jury trial on the claims of third-party beneficiary and negligence, by which it seeks to recover from Barber as the Fains’ subrogee.

A. Third-Party Beneficiary

According to CIC, the trial court erroneously concluded that the Fains, as owners of the house, were not third-party beneficiaries of the construction subcontract between Dark and Barber, and, consequently, that CIC could not recover from Barber, as the Fains’ subrogee, for breach of that contract. , Based -on the research the parties have presented to this Court, there appears .to be a paucity of Alabama caselaw on this precise point. However, it is well established in this State that “[a] party claiming to be a third-party beneficiary, ‘must establish that the contracting parties intended, upon execution of the contract, to bestow a direct, as opposed to an incidental, benefit upon the third party.’ ” Ex parte Stamey, 776 So.2d 85, 92 (Ala.2000) (quoting Weathers Auto Glass, Inc. v. Alfa Mut. Ins. Co., 619 So.2d 1328, 1329 (Ala.1993) (emphasis added)).

Moreover, it is generally recognized that in the construction-contract context, the owner of the building being constructed is typically regarded as merely an incidental beneficiary of the contract between the general contractor and its subcontractor, and, therefore, has no enforceable rights under a subcontract. See, e.g., Restatement (Second) of Contracts § 302 comment e, illustration 19 (1981)(“A contracts to. erect a building for C. B then contracts with A to supply lumber needed for the building. C is an incidental beneficiary of B’s promise, and B is an incidental beneficiary of C’s promise to pay A for the building.”); 9 Arthur L. Corbin, Corbin on Contracts § 779D (1951). The operation and rationale of this principle were succinctly explained by Professor Corbin in his treatise on contracts:

“Where A owes money to a creditor C,-or to several creditors, and B promises A to supply him with the money necessary to pay such debts, no creditor can maintain suit against B on this promise. The same is true in any case where A [the general contractor] is under a contractual duty to C [the owner] the performance of which requires labor or materials, and B [the subcontractor] promises A to supply to him such labor or material; C has no action against B on this promise. In such cases the performance promised by B does not in itself discharge A’s duty to C or in any other way affect the legal relations of C. It may, indeed, tend toward C’s getting 'what A owes him, since it supplies A with the money or material that will enable A to perform, but such a result requires the intervening voluntary action of A. B’s performance may take place in full without C’s ever getting any performance by A or receiving any benefit whatever. In such cases, therefore, C is called an ‘incidental’ beneficiary and is held to have no right. ...
“The foregoing is applicable to most cases of contracts between a principal building contractor and subcontractors. Such contracts are made to enable the principal contractor to perform; and their performance by the subcontractor does not in itself discharge the principal contractor’s duty to the owner with whom he has contracted. The installation of plumbing fixtures or the construction of cement floors by a subcontractor is not a discharge of the principal contractor’s duty to the owner to deliver a finished building containing those items; and if after their installation the undelivered building is destroyed by fire, the principal contractor must replace them for the owner, even though he must pay the subcontractor in full and has no right that the latter shall replace them. It seems, therefore, that the owner has no right against the subcontractor, in the absence of clear words to the contrary. The owner is neither a creditor beneficiary nor a donee beneficiary; the benefit that he receives from performance must be regarded as merely incidental.”

Corbin, § 779D, at 38-41 (emphasis added; footnotes omitted). See also Outlaw v. Airtech Air Conditioning & Heating, Inc., 412 F.3d 156,164 (C.A.D.C.2005) (applying “the traditional contract law rule that, absent any indication to the contrary in an agreement, property owners are not intended or third-party beneficiaries of contracts between contractors and subcontractors”); Pierce Assocs., Inc. v. Nemours Found., 865 F.2d 530 (3d Cir.1989); Cox v. Curnutt, 271 P.2d 342 (Okla.1954).

Of course, “[i]t would be possible for [the general contractor] to make his contract with [a subcontractor] in such terms as to show that [the general contractor] was making it for [the owner’s] benefit and intended [the owner] to have an enforceable right.” Corbin, supra, § 779D, at 40 (emphasis added). Indeed, in Vesta Fire Insurance Corp. v. Milam & Co. Construction, Inc., 901 So.2d 84 (Ala.2004) — on which CIC relies — this Court reversed a summary judgment for Landmark Electric Company, Inc. (“Landmark”), a subcontractor for the construction of a building owned by A & M Bessemer, LLC (“A & M”), and occupied by Hollywood Entertainment Corporation (“Hollywood”), when the building was destroyed by fire on July 24, 1998. That dispute involved claims by Vesta Fire Insurance Corporation (“Vesta”) and Wausau Insurance Company (“Wausau”), subrogees of A & M and Hollywood, respectively, alleging that the fire had resulted from the culpable conduct of, among others, Landmark. Id. at 87-88. This Court held that there were genuine issues of fact as to whether Vesta and Wausau were third-party beneficiaries of a subcontract between Landmark and Milam & Company Construction, Inc., the general contractor. Id. at 103-04.

It did so, however, on the basis of paragraph 4.5.1 of the subcontract, which stated:

“ ‘The Subcontractor warrants to the Owner, Architect, and Contractor that materials and equipment furnished under this Subcontract will be of good quality and new unless otherwise required or permitted by the Subcontract Documents, that the work of this Subcontract will be free from defects' not inherent in the quality required or permitted, and that the work will conform with the requirements of the Subcontract documents. Work not conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective. The Subcontractor’s warranty excludes remedy for damage or defect caused by abuse, modifications not executed by the Subcontractor, improper or insufficient maintenance, improper operation, or normal wear and tear under normal usage. This warranty shall he in addition to and not in limitation of any other warranty or remedy required by law or by the Subcontract Documents.’

901 So.2d at 103 (emphasis added). In other words, the subcontract purported to extend an express warranty to the owner, Vesta’s subrogor. The holding in Vesta, therefore, gave effect to clearly expressed language in the subcontract.

This case is distinguishable from Vesta. Vesta involved a written contract with a clear provision extending protection to third parties; this case involves an oral agreement evidencing no intent to benefit directly third parties. In that connection, CIC argues:

“CIC contends that the Fains are , intended and direct beneficiaries of the contract between Dark ... and Barber because the contract involved work to be performed on the Fains’ residence. It is undisputed that the Fains contracted with Dark ... to construct a residence and that the Fains intended to occupy the residence. It is also undisputed that Dark ... entered into an ‘oral agreement’ with Barber to install insulation at the Fains’ residence. Further, it is undisputed that the Fains owned the land upon which the residence was to be constructed and that the Fains did not intend to transfer ownership of the residence upon completion. Accordingly, the construction of a residence for occupation by the Fains was the sole reason the Fains entered into the contract with Dark.”

CIC’s brief, at 43 (citations to the record omitted; emphasis deleted).

These facts are legally insufficient to give rise to a cause of action based on a third-party-beneficiary theory. That is so, because the facts here evidence nothing more than the typical construction subcontract, which does not recognize rights' in third parties. In this context, the property owner benefits only indirectly and incidentally from the performance of the subcontract. CIC'has presented no facts that would except this case from the general rule that the owner of the building is an incidental beneficiary of the contract between the general contractor and its subcontractor. For these reasons, the trial court correctly concluded that the Fains were not third-party beneficiaries of the subcontract between Dark and Barber, and, 'consequently, that CIC could not recover from Barber for breach of that contract as the Fains’ subrogee.

B. Negligence

CIC next contends that the trial court erred in holding that Barber was not liable under CIC’s negligence claim. Its theory against Barber is that the water pipe in the Fains’ home froze and burst because Barber had improperly installed insulation in the wall surrounding the pipe. CIC argues that Barber “had a duty to the Fains to install the insulation properly,” and that “the Fains relied on the contract between [Dark] and Barber.” CIC’s brief, at 50. According to CIC, “a plaintiff may argue that another party owes a duty under a contract upon which the plaintiff reasonably relied.” Id. at 49-50 (emphasis added). For this proposition, it cites Berkel & Co. Contractors, Inc. v. Providence Hospital, 454 So.2d 496 (Ala.1984), and McGaha v. Steadman, 410 So.2d 420 (Ala. Civ.App.1981). However, both cases are distinguishable.

For example, Providence Hospital involved an action by Bei'kel and Company Contractors, Inc. (“Berkel”), a construction subcontractor, against a design professional, with which Berkel was not in contractual privity. More specifically, Berkel sued Providence Hospital (“the hospital”) and Gill, Korff & Associate, Architects and Engineer, P.C., the architect of a project to construct an addition to the hospital. 454 So.2d at 498. Berkel’s contract with the general contractor required Berkel “to install piles for the foundation of the addition,” id., .and the piles were installed “at the direction of the architect.” 454 So.2d at 500. In particular, “the admixtures used in the pile grout mix had to possess” certain qualities consistent with the architect’s specifications, and “had to be approved by the architect.” 454 So.2d at 499. The grout mix required by the specifications was “referred to as Underwood grout.” Id. The project encountered difficulty when piles installed with Underwood grout failed “load tests.” 454 So.2d at 499-500. Eventually, after the installation of at least 87 piles, the use of Underwood grout had to be abandoned in favor of another type of grout. 454 So.2d at 500.

In its subsequent action against the hospital and the architect, Berkel sought compensation for “what it had expended because of the unaccepted Underwood piles.” 454 So.2d at 500. Berkel’s claims were based on allegations of negligence, not breach of contract. 454 So.2d at 502 n. 4. Specifically, it alleged that the architect “breached [its] duty of care in directing Berkel’s installation of the ... piles.” 454 So .2d at 501.

This Court reversed a summary judgment for the hospital. In so doing, it stated that “Alabama courts have rejected the absence of privity of contract as a defense to a negligence action.” 454 So.2d at 501. The Court explained:

“ ‘Our cases hold that, where the charge of negligence is based upon breach of duty arising out of a contractual relationship, no cause of action arises in favor of one not in privity to the contract. However, there are exceptions, such as where there is an invasion of a duty independent or concurrent with the contract. Weston v. National Mfrs. & Stores Corp., 253 Ala. 503, 45 So.2d 459 (1950).
“ ‘Stated alternatively, defendant’s duty may arise from a social relationship as well as from a contractual relationship. Williams v. Jackson Co., Ala. Civ. App., 359 So.2d 798, cert. denied, 359 So.2d 801 (Ala.1978).
“ ‘Although plaintiff may be barred from recovering from defendant as a third party beneficiary to defendant’s contract with another, plaintiff may nevertheless recover in negligence for defendant’s breach of duty where defendant negligently performs his contract with knowledge that others are relying on proper performance and the resulting harm is reasonably foreseeable.’ ”

Providence Hospital, 454 So.2d at 501 (quoting Federal Mogul Corp. v. Universal Constr. Co., 376 So.2d 716, 721 (Ala.Civ.App.1979)(emphasis added)).

The Court then set out a number of factors to be considered “[i]n deciding whether to impose a duty in a construction context.” 454 So.2d at 502-03. Those factors include:

“ ‘ “(1) [T]he extent to which the transaction was intended to affect the other person; (2) the foreseeability of harm to him; (3) the degree of certainty that he suffered injury; (4) the closeness of the connection between the defendant’s conduct and the injury; (5) the moral blame attached to such conduct; and (6) the policy of preventing future harm.” ’ ”

454 So.2d at 503 (quoting Howe v. Bishop, 446 So.2d 11, 15 (Ala.1984) (Torbert, C.J., concurring in the result), quoting in turn United Leasing Corp. v. Miller, 45 N.C.App. 400, 406-07, 263 S.E.2d 313, 318 (1980)).

Applying these factors, the Court held that the hospital and the architect, as the agent of the hospital, “owe[d] Berkel a duty to act reasonably in directing and approving [the] pile construction work.” 454 So.2d at 503 (emphasis added). The Court stated:

“The transaction was intended to affect Berkel, and it was foreseeable that it would. The alleged harm is certain and directly connected to Providence’s conduct. Given the business relationship and lack of personal injury, the question of moral blame is not relevant in this case. The final factor, the policy of preventing future harm, also supports the finding of duty. Providence could have averted the alleged loss either by not acting or by acting reasonably. This Court will impose liability on Providence to require it to act responsibly.
“This argument for a legal duty is especially compelling because Providence and its architect had the power through liquidated damages and other means to force Berkel to do as Providence unshed. The court in United States v. Rogers & Rogers, 161 F.Supp. 132, 136 (S.D.Cal.1958), explained the responsibilities arising from unequal positions in the context of contractor and architect:
“ ‘Altogether too much control over the contractor necessarily rests in the hands of the supervising architect for him not to be placed under a duty imposed by law to perform without negligence his functions as they affect the contractor. The power of the architect to stop the work alone is tantamount to a power of economic life or death over the contractor. It is only just that such authority, exercised in such a relationship, .carry commensurate legal responsibility.’

454 So.2d at 503 (emphasis added).

Prominent in the Court’s analysis was the control the architect exercised over the subcontractor’s work. Berkel’s own contractual performance depended on the care exercised by the architect; that is, Berkel was relying on the architect, as the hospital’s agent, to exercise due care in “directing the pile work.” 454 So.2d at 503.

The element of reliance and the nature of the defendant are the features that most clearly distinguish Providence Hospital from this case. Providence Hospital simply represents the widely recognized rule that architects and similar design professionals may be hable in tort to persons with whom they are not in privity, when it is foreseeable that such persons would detrimentally rely on the professional’s representations or performance. See Martha Coleman, Liability of Design Professionals for Negligent Design and Project Management, 33 Tort & Ins. L.J. 923 (1998). See also Donnelly Constr. Co. v. Oberg/Hunt/Gilleland, 139 Ariz. 184, 677 P.2d 1292 (1984) (citing cases); A.R. Moyer, Inc. v. Graham, 285 So.2d 397 (Fla. 1973); Jim’s Excavating Serv., Inc. v. HKM Assocs., 265 Mont. 494, 878 P.2d 248 (1994); Reliance Ins. Co. v. Morris Assocs., P.C., 200 A.D.2d 728, 607 N.Y.S.2d 106 (1994); Restatement (Second) of Torts § 552 (1977).

Detrimental reliance was the cornerstone of the holding in McGaha v. Steadman, supra, the other case cited by CIC. That case involved the alleged negligent failure of Jerry McGaha, president of Jerry McGaha’s Boat House (“the Boat House”), to maintain hospitalization insurance on James Steadman, a Boat House employee. 410 So.2d at 421. Following a bench trial, the court awarded Steadman $8,112.53 on his claim against McGaha.

On appeal, McGaha contended that the trial court erred in failing “to discern the distinction between an action ex contractu and one ex delicto.” 410 So.2d at 421. The Court of Civil Appeals rejected that contention and affirmed the judgment, stating that “the trial court, had sufficient grounds [under either of two theories] on which to find tort liability on the part of McGaha irrespective of Steadman’s employment agreement” with the Boat House. 410 So.2d at 421.

In connection with the first theory, the court explained:

“The trial court could have determined from the evidence that McGaha volunteered to act, though under no duty to do so, and therefore was required to act with due care. Dailey v. City of Birmingham, 378 So.2d 728 (Ala. 1979); Herston v. Whitesell, 374 So.2d 267 (Ala.1979). His negligent failure to pay the insurance premium was the proximate cause of Steadman’s damages. This theory is especially applicable here since Steadman apparently told McGaha that if the insurance was not going to be kept current, then he would get insurance elsewhere. Even then, McGaha assured Steadman that he would pay the premium, and Steadman detrimentally relied on those assurances.”

410 So.2d at 421 (emphasis added).

The second theory of tort liability involved McGaha’s position at the Boat House, which required him to “pay the bills, i.e., to see that the hospitalization insurance was kept in force.” 410 So.2d at 421. In that connection, the court stated:

“ ‘[0]ne who undertakes to perform a contract may ... owe a duty to others not privy to the contract to perform his obligation under the contract without negligent injury to such others. Such duty may arise from the foreseeability that such others may be injured by negligent performance, or duty may arise from the knowledge that others are relying upon a proper performance.’ ...
“Under this theory there was evidence that Steadman relied on McGaha to carry out his responsibilities as president of McGaha Enterprises. That Steadman could suffer damages from the lack of hospitalization insurance was reasonably foreseeable by McGaha.”

410 So.2d at 421-22 (quoting Williams v. The Jackson Co., 359 So.2d 798, 801 (Ala. Civ.App.1978) (emphasis added)).

CIC’s contention that the Fains relied on the contract between Dark and Barber falls far short of the particularized reliance of the plaintiffs, upon the architect and McGaha in Providence Hospital and McGaha, respectively. Indeed, Mr. Fain testified by deposition that he had “never heard” of Barber prior to this litigation. In fact, it was Dark—not the Fains—that relied on Barber. The Fains relied on Dark, not Barber. The absence of reliance and consideration of the six factors set forth in Providence Hospital militate against imposing liability on Barber.

Other cases cited by CIC, in particular, Dailey v. City of Birmingham, 378 So.2d 728 (Ma.1979), and Williams v. Wise, 255 Aa. 322, 51 So.2d 1 (1951), are even less apposite than Providence Hospital. Each of those cases involved a personal injury as the result of a dangerous condition created by the defendant, which condition was still under the control of the defendant at the time of the accident. Those cases contain only general propositions of law not specifically applicable to the facts of this case. “[A]n appellant’s citations to general propositions of law not specifically applicable to the issues presented by the appeal do not meet the requirements of Rule 28, Aa: R.App. P.” BankAmerica Housing Servs. v. Lee, 833 So.2d 609, 621 (Aa.2002) (summarizing Connerly v. Connerly, 523 So.2d 461, 462 (Aa.Civ.App.1988)). “Authority supporting only ‘general propositions of law’ does not constitute a sufficient argument for reversal.” Beachcroft Props., LLP v. City of Alabaster, 901 So.2d 703, 708 (Aa.2004) (quoting Geisenhoff v. Geisenhoff, 693 So.2d 489, 491 (Aa.Civ.App.1997)). See also Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Aa.1994) (“it is not the function of this Court to do a party’s legal research or to make ... legal arguments for a party”).

In short, CIC has cited no persuasive authority for imposing on Barber a duty to the Fains arising out of its insulation subcontract with Dark. Thus, the trial court did not err in entering a summary judgment for Barber.

III. Alleged Settlement Agreement

CIC contends that the trial court erred in concluding that a valid and enforceable settlement agreement existed between it and Framco, and, consequently, in enforcing the alleged agreement. We agree.

“An attorney has authority to bind his client, in any action or proceeding, by any agreement in relation to such case, made in vvriting, or by an entry to be made on the minutes of the court.” Ala. Code 1975, § 34-3-21 (emphasis added). This section “ ‘govern[s] settlement agreements reached while the case is still at the trial level,’ ” and Ala. R.App. P. 47 “ ‘govern[s] settlement agreements reached while the matter is on appeal.’ ” Ex parte Sims, 627 So.2d 380, 382 (Ala.1993)(quot-ing Spurlock v. Pioneer Fin. Servs., Inc., 808 F.Supp. 782, 783 (M.D.Ala.1992)). In the absence of compliance with this statute, the alleged agreement is unenforceable as a matter of law. Phillips v. Knight, 559 So.2d 564, 569 (Ala.1990).

Framco and CIC dispute whether they, in fact, reached a settlement agreement. However, “Framco admits that the technical requirements for enforcement have not occurred and (1) the agreement was not reduced to writing and (2) the agreement was not made on the minutes of the trial court.” Framco’s brief, at 3 (emphasis added). Because the agreement, if one existed, does not comply with § 34-3-21, the trial court erred in enforcing it. The judgment, to that extent, is reversed, and the cause is remanded.

IV. Summary

In summary, the trial court did not err in entering a summary judgment for Barber. The summary judgment is, therefore, affirmed. The court did err, however, in enforcing the settlement agreement allegedly entered into by CIC and Framco. That aspect of the judgment is reversed, and the cause is remanded for further proceedings.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

NABERS, C.J., and LYONS, SMITH, and PARKER, JJ., concur.

      . The claims against the hospital were baséd on the theory that the architect was the agent of the hospital. 454 So.2d at 501 and 501 n. 3.


text:
    Ex parte The ESTATE OF Johnny REYNOLDS and Charles Cole. (In re Marquez Miles v. The Estate of Johnny Reynolds and Charles Cole).
    1041533.
    Supreme Court of Alabama.
    June 9, 2006.

      B. Saxon Main and Gerald C. Swann, Jr., of Ball, Ball, Matthews & Novak, P.A., Montgomery, for petitioners.
    Kenneth J. Mendelsohn, Thomas E. James, and Ellenann B. Yelverton of Jemi-son, Mendelsohn & James, P.C., Montgomery, for respondent.
   SMITH, Justice.

Charles Cole, a defendant in an action pending in the Bullock Circuit Court, petitions for a writ of mandamus directing Judge Bernard Smithart of the Bullock Circuit Court to enter a summary judgment in his favor on the basis of State-agent immunity. The estate of Johnny Reynolds also petitions for a writ of mandamus directing Judge Smithart to enter a summary judgment in its favor on the basis that Johnny Reynolds was entitled to State-agent immunity. We grant the petition and issue the writ.

Facts and Procedural Background

On June 5, 2002, Marquez Miles was driving along U.S. Highway 82 in Bullock County near mile marker 195. Miles stated in a deposition that as he was driving through a curve, his tires left the roadway, and he was unable to return to the roadway. Miles’s vehicle left the road, struck a mailbox, and collided with a tree. As a result of the collision, Miles suffered extensive personal injuries.

On September 26, 2002, Miles sued Johnny Reynolds, who was employed by the Alabama Department of Transportation (“ALDOT”) as district engineer of ALDOT’s District II, 'sixth, division, which encompasses Bullock County, and Charles Cole, who is the district maintenance superintendent for District II. The complaint essentially alleged that Reynolds and Cole, in their personal capacities, negligently and wantonly failed to inspect, maintain, and repair the area of Highway 82 in which the collision occurred. Miles alleged that he was injured as a result of their negligence and wantonness. Miles later amended the complaint to allege that Reynolds had negligently and wantonly supervised Cole and that both Reynolds and Cole had acted negligently, wantonly, willfully, maliciously, fraudulently, in bad faith, beyond their authority, and under a mistaken interpretation of the law.

In January 2005, Reynolds died, and apparently Reynolds’s estate was substituted as a party. The parties have not informed this Court of the name of the executor of Reynolds’s estate (the executor of Reynolds’s estate and Reynolds’s estate will be hereinafter referred to as “Reynolds”).

On April 4, 2005, Reynolds and Cole filed a motion for a summary judgment. On June 2, 2005, the trial court denied the motion. Cole and Reynolds now petition this Court for a writ of mandamus directing the trial court to enter a summary judgment in their favor on the basis of State-agent immunity.

Standard of Review

‘“While the general rule is that the denial of a motion for summary judgment is not reviewable, the exception is that the denial of a motion for summary judgment grounded on a claim of immunity is reviewable by petition for writ of mandamus.’ Ex parte Rizk, 791 So.2d 911, 912 (Ala.2000). A writ of mandamus is an extraordinary remedy available only when there is: ‘(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).”

Ex parte Nall, 879 So.2d 541, 543 (Ala. 2003).

This Court has established a “burden-shifting” process when a party raises the defense of State-agent immunity. Giambrone v. Douglas, 874 So.2d 1046, 1052 (Ala.2003). In order to claim State-agent immunity, a State agent bears the burden of demonstrating that the plaintiffs claims arise from a function that would entitle the State agent to immunity. Giambrone, 874 So.2d at 1052; Ex parte Wood, 852 So.2d 705, 709 (Ala.2002). If the State agent makes such a showing, the burden then shifts to the plaintiff to show that the State agent acted willfully, maliciously, fraudulently, in bad faith, or beyond his or her authority. Giambrone, 874 So.2d at 1052; Wood, 852 So.2d at 709; Ex parte Davis, 721 So.2d 685, 689 (Ala. 1998). “A State agent acts beyond authority and is therefore not immune when he or she £fail[s] to discharge duties pursuant to detailed rules or regulations, such as those stated on a checklist.’ ” Giambrone, 874 So.2d at 1052 (quoting Ex parte Butts, 775 So.2d 173, 178 (Ala.2000)).

Discussion

Reynolds and Cole argue that, as employees of ALDOT, Johnny Reynolds and Cole are entitled to State-agent immunity under the test set forth in Ex parte Cranman, 792 So.2d 392 (Ala.2000). Because Johnny Reynolds and Cole are entitled to State-agent immunity, Reynolds and Cole argue, the trial court erred in failing to enter a summary judgment in their favor. We agree.

“State-agent immunity protects state employees, as agents of the State, in the exercise of their judgment in executing their work responsibilities.” Ex parte Hayles, 852 So.2d 117, 122 (Ala.2002). In Cranman, this Court restated the rule governing State-agent immunity:

“A State agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent’s
“(1) formulating plans, policies, or designs; or
“(2) exercising his or her judgment in the administration of a department or agency of government, including, but not limited to, examples such as:
“(a) making administrative adjudications;
“(b) allocating resources;
“(c) negotiating contracts;
“(d) hiring, firing, transferring, assigning, or supervising personnel; or
“(3) discharging duties imposed on a department or agency by statute, rule, or regulation, insofar as the statute, rule, or regulation prescribes the manner for performing the duties and the State agent performs the duties in that manner; or
“(4) exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement officers’ arresting or attempting to arrest persons; or
“(5) exercising judgment in the discharge of duties imposed by statute, rule, or regulation in releasing prisoners, counseling or releasing persons of unsound mind, or educating students.
“Notwithstanding anything to the contrary in the foregoing statement of the rule, a State agent shall not be immune from civil liability in his or her personal capacity
“(1) when the Constitution or laws of the United States, or the Constitution of this State, or laws, rules, or regulations of this State enacted or promulgated for the purpose of regulating the activities of a governmental agency require otherwise; or
“(2) when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.”

792 So.2d at 405.

The evidence submitted in support of the summary-judgment motion indicated that Johnny Reynolds, as district engineer, was generally responsible for assessing the highway-improvement needs of District II, which includes 593 “lane” miles of road, 3 miles of bridges, and 2 rest areas. He frequently inspected the highways to discover defects and to determine if maintenance or repair work was required. Additionally, Johnny Reynolds supervised maintenance and construction activities within District II. When maintenance or repair work was necessary, Johnny Reynolds would rank and prioritize projects based on the degree of danger a condition created, the type of work needed, the availability of labor resources, and the particular road in question. In performing his duties, Johnny Reynolds used AL-DOT’s “Maintenance Manual” and “Field Operations Manual” (“the manuals”).

The evidence presented in support of the summary-judgment motion also indicated that Cole, as district superintendent for District II, inspected the highways in District II and determined whether maintenance and repair was needed. If he determined such work was necessary, he was generally responsible for planning, scheduling, monitoring, supervising, and evaluating the work, as well as supervising ALDOT employees. Cole testified in an affidavit and by deposition that his job is to determine what kind of maintenance work is necessary and to rank and prioritize projects based on the degree of danger a condition created, the type of work needed, the availability of labor resources, and the particular road in question. Cole also used and consulted the manuals in performing his duties. The manuals, however, often do not provide explicit guidelines for particular situations, and Cole stated that he exercises judgment in deciding how best to accomplish his responsibilities.

Reynolds and Cole argue that this Court’s decision in Grant v. Davis, 537 So.2d 7 (Ala.1988), requires that they be afforded State-agent immunity in this case. In Grant, the plaintiffs, Davis and Inger-soll, were traveling on Highway 49 south of Dadeville. The right rear tire of the motor vehicle in which they were riding slid off the road into a rut or drop-off oh the shoulder. Davis, who was driving, attempted to guide the vehicle back onto the road, but she lost control, and the vehicle crashed. Both Davis and Ingersoll were injured.

Subsequently, Davis and Ingersoll sued several ALDOT employees, including Lorenzo Grant, the district engineer for the district in which the crash occurred, and Wood Gaston, the district superintendent. The plaintiffs alleged that Grant and Ga-ston were negligent, reckless, or wanton in failing to properly inspect, maintain, or repair the shoulder of the road on which the accident occurred. Grant and Gaston moved for a summary judgment on the ground that they were immune from suit. The trial court denied their motion, and they appealed.

The evidence demonstrated that Grant was responsible for all construction and maintenance activities within his district. He would inspect the roads with Gaston to determine if any repairs, construction, or maintenance was necessary. Both would prioritize the repair projects. A month before the accident, Gaston had ordered certain repairs be conducted in the area of Highway 49 in which the plaintiffs crashed.

This Court determined that Grant and Gaston were immune from suit. In arriving at that determination, we applied the “discretionary function test”:

“Discretionary function, immunity is just what its label implies: immunity from tort liability afforded to public officials acting within the general scope of their authority in performing functions that involve a degree of discretion....
“In Bell v. Chisom, 421 So.2d 1239, 1241 (Ala.1982), this Court discussed at length the elements of, and factors for determining, the applicability of discretionary function immunity in a given case:
‘“As the Restatement’s comments suggest, the courts have at times found the discretionary function standard difficult to interpret. Nevertheless, in many cases this standard’s proper application will be readily apparent. Two such cases will serve to illustrate the conflicting policy considerations the courts must apply. On the one hand, in DeStafney [v. University of Alabama, 413 So.2d 391 (Ala.1981) ] itself we had no difficulty in rejecting the immunity claim of the individual defendant, an aide at the University day care center who allegedly allowed the plaintiffs child to fall off playground equipment. This defendant’s function clearly required due care rather than difficult decision making. On the other hand, we accepted the claim of immunity in Gill v. Sewell, [356 So.2d 1196 (Ala.1978)], where the director of a work release center was sued for his decision to release a convicted felon who shot the plaintiff. That decision was an exercise of discretion central to the defendant’s function, and accordingly in DeStafney we noted, “unquestionably, Gill falls squarely within § 895D(3)(a) of the Restatement,” 413 So.2d at 394.
“ ‘These two cases illustrate the governmental interest at stake in discretionary function immunity: the ability of public officers to “engage in making a decision by weighing the policies for and against it.” Restatement, supra, comment d at 413. Without some degree of immunity, public officers may decide not on the basis of policy but of avoiding personal liability or vexatious suits. Their motive for doing so may be larger than in the private sector, for governmental action often has unusual potential to injure or to affect large numbers of people. See G. Bermann, “Integrating Governmental and Officer Tort Liability,” 77 Columbia L.Rev. 1175, 1177 (1977). Discretionary function immunity, then, is called for when necessary to preserve the decision making function of government.
“ ‘Considerable precedent has developed applying the concept of discretionary function in various contexts. The most common approach to the problem is to distinguish between planning and operational levels of action, with only the former being immune ....’”

Grant, 537 So.2d at 8-9.

We noted in Grant that the evidence established that once Grant or Gaston determined that repairs to a roadway were needed, they were required to rank the various projects based on factors that included the type of defect, the particular road in question, and the resources and manpower available. While those duties required that they maintain and repair the roads, Grant and Gaston exercised discretion in prioritizing the various projects. We stated:

“Ideally, the slightest defect would be repaired immediately so that the highways would, at all times, be maintained at the greatest level of safety. Reality, however, poses limitations on the time, manpower, and financial resources available for making the needed repairs. It is under these limitations that the defendants must assess the relative priority to be given the various defects that are discovered, and rank their repair so as to achieve the optimum level of safety possible under all circumstances. While [ALDOT’s] ‘Field • Operations Manual’ provides criteria by which these decisions are to be made, in the final analysis a significant degree of discretion is left to the defendants in their exercise of this particular function. We find that the appellants’ duties associated with the repair and maintenance function substantially partake of planning level activities involving the exercise of discretion, and the defendants are therefore entitled to substantive immunity as a matter of law on plaintiffs’ claims for failure to maintain and repair.. ...
“We also find that the same is true with respect to the claim that the defendants were negligent in failing to properly inspect the shoulder of the road and discover the defect. Both the ‘Maintenance Manual’ and the ‘Field Operations Manual,’ publications adopted to guide [ALDOT] workers in the performance of their duties, mandate frequent inspection of the roads to discover defects....
“The duty to inspect the roads is an affirmative duty but one that also involves a type of discretion giving rise to qualified immunity. In performing that function, the defendants are involved in determining the manner of carrying out these inspections, i.e., determining the method and means. Thus, they are carrying out the directives of the guidelines that they must follow by determining how the inspections are to be carried out. While the defendants have no discretion not to inspect, they do have the discretion to determine the practical method for inspecting each road.... ”

Grant, 537 So.2d at 9-10 (first two emphases added). See also McDuffie v. Roscoe, 679 So.2d 641 (Ala.1996) (holding that various ALDOT engineers and inspectors sued for negligently allowing a dangerous drop-off to exist on the shoulder of a road were entitled to discretionary-function immunity under Grant); Taylor v. Shoemaker, 605 So.2d 828 (Ala.1992) (holding that the defendant ALDOT engineers and a superintendent who were responsible for assessing highway-improvement needs and determining how best to allocate resources exercised discretion in determining to not remove railway rails surrounding a railroad-crossing signal; therefore, they were immune from liability in a suit by an individual who had crashed into the rails); and McCluskey v. McCraw, 672 So.2d 805 (Ala. Civ.App.1995) (upholding a trial court’s decision that a county engineer who was required to inspect bridges had discretion to determine the practical method for such inspections and was afforded discretionary-function immunity in an action that alleged that the engineer was liable for unsafe conditions on a bridge).

Grant was decided before the adoption of the restatement of the rule of State-agent immunity first described in Cran-man. However, Reynolds and Cole argue that the holding in Grant fits within the criteria described in Cranman. Specifically, Reynolds and Cole argue that Cole’s and Johnny Reynolds’s duties required that they formulate plans and policies for highway maintenance and repair, that they exercise judgment in “allocating [the] resources” of ALDOT, and that they exercise judgment in supervising ALDOT personnel. Cranman, 792 So.2d at 405. We agree.

As noted in Cranman, not all discretionary acts by an agent of the State should be labeled as “ ‘immune’ simply because the State has empowered the agent to act.” 792 So.2d at 405. However, the conduct of Johnny Reynolds and Cole in performing their duties in this case was not remote from the execution of government policy. Id. Johnny Reynolds and Cole planned both inspections and repairs, and they exercised judgment in determining how and where to use the limited resources and manpower available to repair and maintain roads and bridges in District II. These decisions are the very sort protected by State-agent immunity as described in Cranman. Therefore, Johnny Reynolds and Cole are entitled to immunity.

Miles argues that State-agent immunity is unavailable to Johnny Reynolds and Cole because they “failed to discharge duties pursuant to detailed rules or regulations, such as those stated on a checklist.” Ex parte Butts, 775 So.2d at 178. Specifically, Miles argues that Johnny Reynolds and Cole failed to maintain the road in the manner prescribed in the manuals, which Miles contends required Johnny Reynolds and Cole to inspect Highway 82 and to ensure that the shoulders were maintained to provide drivers a; reasonably safe recovery zone. They did not, he argues, have discretion to disobey the manuals. Miles included in opposition to the summary-judgment motion two affidavits of Charles L. Cook, who served as the acting district engineer for District II from March 1998 to September 1999. In the first affidavit, dated November 1, 2002, Cook testified that he had inspected Highway 82 and had noticed that there were “numerous places” where the pavement and shoulder had been damaged by large trucks getting too close to the shoulder of the road. Cook further stated that he noticed such damage in an area “not far from Mr. J.T. Knowles’[s] house” (Mr. Knowles owned the mailbox that was damaged in the crash). In the second affidavit, dated April 12, 2005, Cook testified that he had inspected the shoulder of Highway 82 in September 2002. Cook noticed that some areas of the shoulder were higher than the paved surface of the road, some areas were lower, and that in one place a truck had apparently made a large rut in the shoulder. Cook stated that he saw some of these problems “near mileage marker 195.” Cook also stated that it appeared to him these conditions had existed for some time. Miles argues that this evidence demonstrates that Johnny Reynolds and Cole were negligent in inspecting and maintaining Highway 82.

Reynolds and Cole argue that Cook’s affidavits were due to be stricken by the trial court because they were not based on personal knowledge and because they contain speculation and opinion. In any event, in Grant, this Court noted that although ALDOT’s “Field Operations Manual” provided criteria by which decisions were made and set out duties the defendants were required to perform, “in the final analysis a significant degree of discretion is left to the defendants in their exercise of this particular function.... [T]he appellants’ duties associated with the repair and maintenance function substantially partake of planning level activities involving the exercise of discretion.... ” 587 So.2d at 9. Additionally, although the manuals required ALDOT workers to make frequent inspections of the roads to discover defects, the workers nonetheless were required to make judgments in performing this duty:

“The duty to inspect the roads is an affirmative duty but one that also ⅛-volves a type of discretion giving rise to qualified immunity. In performing that function, the defendants are involved in determining the manner of carrying out these inspections, ie., determining the method and means. Thus, they are carrying out the directives of the guidelines that they must follow' by determining how the inspections are to be carried out. While the defendants have no discretion not to inspect, they do have the discretion to determine the practical method for inspecting each road....”

537 So.2d at 10.

Similarly, Johnny Reynolds’s and Cole’s duties to inspect required formulating plans and policies, as well as exercising judgment in allocating resources for the inspections. Johnny Reynolds and Cole then exercised judgment in actually undertaking to accomplish the necessary maintenance and repairs. This type of decision-making is protected by Cranman. Therefore, Miles failed to establish that Johnny Reynolds and Cole are not entitled to immunity.

Finally, Miles argues that under Cranman no immunity is afforded when a State agent “acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.” 792 So.2d at 405. However, we see no evidence indicating that Johnny Reynolds or Cole acted in this manner.

Conclusion

Johnny Reynolds and Cole are entitled to State-agent immunity under the test set forth in Cranman. The trial court is therefore directed to enter a summary judgment in favor of Cole and the estate of Johnny Reynolds.

PETITION GRANTED; WRIT ISSUED.

NABERS, C.J., and LYONS, WOODALL, and PARKER, JJ., concur.

      . Miles's complaint alleges that the right front tire of his motor vehicle entered a “channel in the paved surface of the road,” causing him to lose the ability to steer. Miles testified at deposition that he did not see a problem with the surface of the road; instead, his tire rolled off the roadway and he was unable to turn back onto the road. The state trooper who investigated the accident, Arthur S. Berry, testified in an affidavit that there were no channels or ruts in the road surface or on the shoulder.

      . The complaint also sought damages from DaimlerChrysler Corporation, the manufacturer of the motor vehicle Miles was driving. DaimlerChrysler was dismissed from the case in December 2003 and is no longer a party in the proceedings.

      . Cranman was a plurality opinion. The test set forth in Cranman was subsequently adopted by a majority of the Court in Ex parte Butts, 775 So.2d 173, 178 (Ala.2000).

      . ALDOT is referred to in Grant as the "Alabama Highway Department,” the name by which ALDOT was formally known. See Lamar Adver. of Montgomery, Inc. v. State Dep't of Transp., 694 So.2d 1256, 1257 (Ala. 1996) ("[T]he Alabama Highway Department [is] now known as the Alabama Department of Transportation ...." (parentheses omitted)).

      . Reynolds and Cole state that they filed a motion to strike the affidavits but that the trial court never ruled on the motion.