author: LYONS, Justice. LYONS, Justice.

text:
    Pamela HANNER, as guardian of Stephen D. Hanner v. METRO BANK AND PROTECTIVE LIFE INSURANCE COMPANY.
    1041966.
    Supreme Court of Alabama.
    June 23, 2006.
    Opinion on Return to Remand Sept. 15, 2006.

      Jeffrey W. Brumlow and Chesley P. Payne of Massey, Stotser & Nichols, P.C., Birmingham, for appellant.
    Hugh E. Holladay of Holladay, P.C., Pell City, for appellee Metro Bank.
    Marcie P. Braswell, Thomas J. Butler, and Robert D. Hancock of Maynard, Cooper & Gale, P.C., Birmingham, for appellee Protective Life Insurance Company.
   LYONS, Justice.

Pamela Hanner, as guardian of Stephen D. Hanner, appeals from a summary judgment in favor of Metro Bank and Protective Life Insurance Company. We remand the cause to the trial court because the judgment appealed from is not a final judgment.

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In July 1994, Bret Hanner and Pamela Hanner were divorced. At the time of the divorce, Bret and Pamela had a minor son, Stephen. An agreement between Bret and Pamela, incorporated into the divorce judgment, provided, in part:

“That [Pamela] and [Bret] will each maintain the separate life insurance policies on each of their lives presently in effect, and shall name the minor child, [Stephen], as the irrevocable beneficiary of each of those life insurance policies.”

At the time of the divorce, Bret had a $75,000 life insurance policy with State Farm. The parties do not reveal if Stephen was ever made the beneficiary of that policy. According to Pamela’s deposition testimony, sometime before January 1997, Bret stopped paying premiums on the State Farm policy and allowed it to lapse. Also according to Pamela, sometime later in 1997, the St. Clair Circuit Court ordered Bret to obtain another life insurance policy and to name Stephen as the irrevocable beneficiary of that policy. Bret subsequently purchased a life insurance policy from Primerica, and Stephen was listed as the beneficiary. Apparently, Stephen was not made an irrevocable beneficiary of that policy, because Pamela testified in deposition that Bret later changed the beneficiary of the Primerica policy from Stephen to his new wife, Ann.

To secure a $330,000 loan from Metro Bank, Bret assigned the Primerica insurance policy to Metro Bank. Subsequently, however, Bret allowed the Primerica policy to lapse for nonpayment of premiums.

In March 1999, Bret told a Metro Bank insurance agent, who sold insurance underwritten by Protective Life, that he needed to purchase a life insurance policy naming Stephen as beneficiary in order to comply with the terms of the divorce judgment. According to the Metro Bank insurance agent, although Bret stated that he needed the policy to comply with the terms of the divorce judgment, he did not elaborate on what those terms were. In June 1999, Protective Life issued a $100,000 life insurance policy to Bret, naming Stephen as beneficiary of $75,000 and naming Ann as beneficiary of the remaining $25,000. Bret did not request that Protective Life name Stephen as an irrevocable beneficiary of the policy.

In or shortly before January 2002, Metro Bank learned that Bret’s Primerica policy, which Bret had assigned to Metro Bank to secure its $330,000 loan to Bret and Ann, had been canceled for nonpayment. On January 18, 2002, Bret assigned to Metro Bank the Protective Life policy as new collateral for the loan.

Bret died on August 16, 2002. Pamela claims that, on August 20, 2002, she contacted Protective Life’s claims department in order to obtain instructions on filing a claim on behalf of Stephen for his share of the proceeds of the Protective Life policy. She also claims that, several days later, a representative of Metro Bank contacted her and requested that she fill out some release forms so that, pursuant to the assignment of the policy by Bret, Metro Bank could collect the proceeds. Pamela refused. A few days later, Protective Life sent Pamela a letter informing her that the outstanding balance of the loan secured by the insurance policy was greater than the face value of the policy and that all of the proceeds of Bret’s life insurance policy would be paid to Metro Bank. On September 9, 2002, Protective Life paid the benefits under the policy to Metro Bank. In a letter sent by Pamela’s attorney to Protective Life, Pamela informed Protective Life of the divorce judgment requiring Bret to maintain a life insurance policy naming Stephen as irrevocable beneficiary. Although the letter is dated September 6, 2002, which was three days before Protective Life paid the proceeds of the policy to Metro Bank, the letter is stamped “received” by Protective Life on September 12, 2002, three days after it had paid the policy proceeds to Metro Bank.

In December 2002, Protective Life filed a declaratory-judgment action in the St. Clair Circuit Court, seeking a declaration of the proper owner of the proceeds of the insurance policy. Metro Bank and Pamela, as Stephen’s guardian, were named as defendants in Protective Life’s complaint. Pamela filed a counterclaim against Protective Life, asserting claims of breach of contract, bad faith, conversion, and negligence. She also filed a cross-claim against Metro Bank, alleging unjust enrichment and conversion.

Pamela, Metro Bank, and Protective Life all filed motions for a summary judgment. On August 11, 2005, the trial court entered an order granting Metro Bank’s and Protective Life’s motions and denying Pamela’s motion, stating: “Metro Bank is the rightful recipient of the [life insurance] proceeds .... ” Pamela appealed.

II.

A

In addition to her counterclaim against Protective Life and her cross-claim against Metro Bank, Pamela filed a separate action against Bret’s estate and against Bret’s widow, Ann. That action was consolidated with the declaratory-judgment action from which Pamela has appealed. However, the record does not indicate that a final judgment has been entered in Pamela’s action against Ann and the estate.

An appeal will not lie from a nonfinal judgment. Robinson v. Computer Servicenters, Inc., 360 So.2d 299, 302 (Ala.1978).“A ruling that disposes of fewer than all claims or relates to fewer than all parties in an action is generally not final as to any of the parties or any of the claims. See Rule 54(b), Ala. R. Civ. P.” Wilson v. Wilson, 736 So.2d 633, 634 (Ala.Civ.App.1999). When an action involves multiple claims or parties, Rule 54(b), Ala. R. Civ. P., gives the trial court the discretion to “direct the entry of a final judgment as to one or more but fewer than all of the claims or parties.” If a trial court certifies a judgment as final pursuant to Rule 54(b), an appeal will generally lie from that judgment.

According to Wright and Miller:
“Although federal courts usually have said that consolidated actions do not lose their separate identity, some courts have reasoned persuasively that they should be treated as a single action for purposes of review by way of Rule 54(b), and that a judgment in the consolidated case that does not dispose of all claims and all parties is appealable only if certified as that rule requires.”

9 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2386 (2d ed.1995) (footnote omitted). The United States Court of Appeals for the Ninth Circuit has said:

“In our view, the best approach is to permit the appeal only when there is a final judgment that resolves all of the consolidated actions unless a 54(b) certification is entered by the district court. This leaves the discretion with the court which is best able to evaluate the [ejffect of an interim appeal on the parties and on the expeditious resolution of the entire action.”

Huene v. United States, 743 F.2d 703, 705 (9th Cir.1984). See, also, Trinity Broad. Corp. v. Eller, 827 F.2d 673, 675 (10th Cir.1987) (“To obtain review of one part of a consolidated action, appellant must obtain certification under Fed.R.Civ.P. 54(b).”); and Spraytex, Inc. v. DJS&T, 96 F.3d 1377, 1382 (Fed.Cir.1996) (“We now extend this approach to join the Ninth and Tenth Circuits in adopting the rule that, absent Rule 54(b) certification, there may be no appeal of a judgment disposing of fewer than all aspects of a consolidated case.”). We find persuasive the holdings of these decisions interpreting the Federal Rules of Civil Procedure, on which our own Rules of Civil Procedure are based. Accordingly, we hold that a trial court must certify a judgment as final pursuant to Rule 54(b), Ala. R. Civ. P., before a judgment on fewer than all the claims in a consolidated action can be appealed.

B.

“[I]f it is clear and obvious from the language used by the trial court in its order that the court intended to enter a final order pursuant to Rule 54(b), then we will treat the order as a final judgment .... ” Schneider Nat’l Carriers, Inc. v. Tinney, 776 So.2d 753, 755 (Ala.2000), summarizing the holding in Sho-Me Motor Lodges, Inc. v. Jehle-Slauson Constr. Co., 466 So.2d 83, 87 (Ala.1985). In Sho-Me Motor Lodges, the trial court’s order clearly indicated that the court intended to enter an order pursuant to Rule 54(b) because the order, clearly quoting Rule 54(b), stated: “ ‘The Court further finds there is no just reason for delay in the entry of said final judgment.’ ” 466 So.2d at 87. And in Schneider National Carriers, Inc., we recognized the existence of a Rule 54(b) certification based on the fact that the trial court specifically cited Rule 54(b).

In the instant case, the trial court’s summary-judgment order states that it “resolves all controversies pending in this ease with prejudice and is final in accordance with the Alabama Rules of Civil Procedure.” However, the order does not mention Rule 54(b), nor does it quote from that rule, other than to use the word “final.” Lastly, the order fails to recognize that the action in which it was entered had previously been consolidated with another action. Accordingly, we cannot say that the trial court clearly intended to certify its order as a final order under Rule 54(b), nor can we overlook the absence of a final judgment, a matter affecting our jurisdiction, by assuming that the trial court would certify its judgment as final pursuant to Rule 54(b), notwithstanding the fact that the order is entered in an action comprising two consolidated actions.

III.

“When it appears from the record that [an] appeal was taken from an order which was not final, but which could have been made final by a Rule 54(b) certification, we will remand the case to the trial court for a determination as to whether it chooses to certify the order as final, pursuant to Rule 54(b), and, if it so chooses, to enter such an order and to supplement the record to reflect that certification. The judgment will be taken as final as of the date the 54(b) certification is entered....
“... [I]f this Court remands the case to the trial court for the opportunity of making such a certification, the trial court will have the limited jurisdiction to enter a 54(b) certification if, in its discretion, it decides the entry of such a certification is appropriate.”

Foster v. Greer & Sons, Inc., 446 So.2d 605, 609-10 (Ala.1984), overruled on other grounds, Ex parte Andrews, 520 So.2d 507, 510 (Ala.1987).

We remand this case for the trial court (1) to make the interlocutory order of August 11, 2005, a final judgment pursuant to Rule 54(b), Ala. R. Civ. P.; (2) to adjudicate the remaining claims, thus making the interlocutory order of August 11, 2005, final and appealable; or (3) to take no action, in which event the appeal will be dismissed as being from a nonfinal judgment. If the trial court elects to enter the Rule 54(b) certification or any other final judgment, a supplemental record reflecting such action should be prepared and forwarded to this Court within 14 days from the date this opinion is released. The judgment will be considered final as of the date the new order is entered. If no supplemental record is forwarded to this Court within 14 days of the date this opinion is released, this appeal will be dismissed.

REMANDED.

HARWOOD, WOODALL, BOLIN, and PARKER, JJ., concur. '

NABERS, C.J., recuses himself.

On Return to Remand

LYONS, Justice.

On June 23, 2006, we remanded this case for the trial court to make its interlocutory order of August 11, 2005, a final judgment pursuant to Rule 54(b), Ala. R. Civ. P.; to adjudicate the remaining claims, thus making the interlocutory order final; or to take no action, in which event the appeal would be dismissed. Hanner v. Metro Bank, 952 So.2d 1056. On remand, the trial court certified the summary judgment in favor of Metro Bank and Protective Life Insurance Company as final, pursuant to Rule 54(b). We now consider Pamela Hanner’s arguments on the merits. For a summary of the relevant facts, see our opinion on original submission. We affirm in part, reverse in part, and remand.

I. Standard of Review

“The standard of review applicable to a summary judgment is the same as the standard for granting the motion .... ” McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So.2d 957, 958 (Ala.1992).

“A summary judgment is proper when 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. The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. In deterr mining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmoving party must present ‘substantial evidence’ creating a genuine issue of material fact — ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ Ala.Code 1975, § 12-21-12; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).”

Capital Alliance Ins. Co. v. Thorough-Clean, Inc., 639 So.2d 1349, 1350 (Ala.1994). Questions of law are reviewed de novo. Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala.2004).

II. Analysis

In December 2002, Protective Life Insurance Company filed a declaratory-judgment action in the St. Clair Circuit Court, naming Pamela, as her son Stephen Han-ner’s guardian, and Metro Bank as defendants. The action sought a declaration of the proper owner of the proceeds of Bret Hanner’s life insurance policy, which named his son Stephen as a beneficiary, but which Bret had assigned to Metro Bank as collateral for a loan. Pamela counterclaimed against Protective Life, alleging breach of contract, bad faith, conversion, and negligence, and cross-claimed against Metro Bank, alleging unjust enrichment and conversion. The trial court entered a summary judgment for Protective Life and Metro Bank, and Pamela appealed.

A. Declaratory Judgment

1. Vested Equitable Interest

Pamela argues that the divorce judgment requiring her former husband Bret to maintain his life insurance policy and to name Stephen as the irrevocable beneficiary created in Stephen a vested equitable interest in Bret’s policy that could not be defeated without Stephen’s consent. In Williams v. Williams, 276 Ala. 43, 158 So.2d 901 (1963), this Court held that a divorce judgment that required a father to maintain his then existing life insurance policy and to name his minor children as irrevocable beneficiaries of that policy created in the children vested equitable interests in the policy that could not be defeated by changing the beneficiary under the policy to someone other than the children. The divorce judgment in Williams provided:

“‘It is further ORDERED and DECREED by the Court that [the father] shall change [the] beneficiary in the existing life insurance policy on his life presently in effect so as to name his above named minor children as irrevocable beneficiaries thereof; and he is further required to keep said insurance in effect during the minority of the said children.’ ”

276 Ala. at 45, 158 So.2d at 902. The father in Williams, in defiance of the divorce judgment, named his mother as beneficiary of the life insurance policy. This Court held that the children nevertheless had superior rights to the proceeds of the policy because the divorce judgment created in the children vested equitable interests in that policy:

“An agreement by an insured, in consideration of the settlement of property rights by which he agrees to make his children the sole irrevocable beneficiar ries of a policy of life insurance, vests them with an equitable interest therein which may not be'defeated without their consent....
“The legal consequence of the decree in the divorce suit was to give the children a vested equitable interest in the policy, and the subsequent change of beneficiary did not establish superior •rights in the new beneficiary. In violation of the agreement and the decree, the insured wrongfully attempted to deprive his children of the proceeds of the policy by an attempted change of beneficiary. Equity will intervene and declare them the beneficiaries in the policy.”

276 Ala. at 46-47, 158 So.2d at 903 (emphasis added).

In Frawley v. U.S. Steel Mining Co., 496 So.2d 731 (Ala.1986), a divorce judgment required a father to maintain a life insurance policy and to name his minor child as the irrevocable beneficiary of that policy. However, in defiance of the judgment, the father never named the child as the beneficiary of the policy. This Court, citing Williams, held that the divorce judgment created in the minor "child a vested equitable interest in her father’s insurance policy, even though the father had never named the child as the beneficiary of the policy.

As noted, the divorce judgment in the instant case required Bret to maintain the life insurance policy that was “presently in effect” at the time that judgment was entered, i.e., a policy with State Farm. Based on Frawley and Williams, we hold that the divorce judgment created in Stephen a vested equitable interest in the State Farm life insurance policy.

2. Effect of Change in Policy

It is undisputed that the Protective Life policy, which was the policy in effect at the time of Bret’s death and which is the policy at issue in this case, is not the same policy that was in effect at the time the divorce judgment was entered; the policy in effect at that time was the State Farm policy. As noted, Pamela testified that Bret had allowed the State Farm policy to lapse and replaced it with a policy with Primerica Life Insurance Company, which he also allowed to lapse. The policy at issue here, the policy issued by Protective Life, was issued after the Prim-erica policy had lapsed and after Bret told a Metro Bank employee that he needed to purchase the policy in order to comply with the terms of the divorce judgment.

In Brown v. Brown, 604 So.2d 365 (Ala.1992), a divorce judgment required a father to keep his then existing life insurance policies in effect and to name his son as the irrevocable beneficiary of those policies. The divorce judgment specifically referenced the particular policies on the father’s life that were in effect at the time the divorce judgment was entered. After the divorce judgment was entered, the father named his son as the beneficiary of the policies, but he later allowed one of those policies to lapse. The father subsequently purchased another policy but did not name his son as beneficiary of that policy; rather, he named his new wife as the beneficiary. After the father died, the son claimed an interest in the policy the father had purchased after he had allowed the original policy to lapse. The father’s new wife argued that because the policy was not the same policy in effect at the time the divorce judgment was entered the son did not have a vested interest in that policy. This Court disagreed, noting that the evidence showed that the new policy was purchased as a replacement for the policy referenced in the divorce judgment.

As noted, in the instant case, a Metro Bank employee testified that Bret told her that he needed to purchase the Protective Life policy in order to comply with the terms of the divorce judgment. Additionally, the record contains a letter sent by Metro Bank to Protective Life requesting documentation showing Stephen’s interest as beneficiary of the policy. The letter states: “This must be furnished to the courts per divorce decree.... ” Accordingly, we hold that Pamela has presented substantial evidence indicating that the Protective Life policy was purchased as a replacement for the State Farm policy in which Stephen had a vested equitable interest. Therefore, under the reasoning of Brown, we hold that substantial evidence exists indicating that Stephen had a vested interest in the Protective Life policy.

S. Effect of Assignment of Policy

Metro Bank points out that in the cases on which Pamela relies the divorced policyholders designated as beneficiaries of life insurance policies people other than those who had acquired vested interests in those policies. Metro Bank points out that, in the instant case, in contrast to those cases, Bret did name Stephen as a beneficiary of the Protective Life policy. Metro Bank contends that Bret’s assignment of the policy, as opposed to his naming of a beneficiary other than his son, distinguishes the instant case from those relied on by Pamela.

Metro Bank, citing Rountree v. Frazee, 282 Ala. 142, 209 So.2d 424 (1968), contends that, unlike the cases on which Pamela relies, Bret’s assignment of the policy did not divest Stephen of his vested interest in that policy. In Rountree, a husband had a life insurance policy naming his wife as beneficiary. The husband assigned his policy to a creditor as collateral for a loan. When the husband died, part of the loan balance was satisfied with the proceeds of the policy, leaving no proceeds for the wife. The trial court upheld the wife’s claim against the husband’s estate for the policy proceeds. On appeal, the husband’s estate argued that “the assignment of the policy to the [creditor] had the effect of changing the beneficiary thereby divesting [the wife] of any interest in the policy,” citing a case decided by the Supreme Court of Georgia. This Court, affirming the judgment of the trial court, disagreed with that argument, stating: “We are not in accord with the holding that the assignment constituted a change of beneficiary.” 282 Ala. at 146, 209 So.2d at 426.

However, while the assignment in Roun-tree may not have constituted a literal change in the beneficiary of the insurance policy, it did have the effect of subordinating the beneficiary’s interest in the policy proceeds to that of the creditor.

“In accordance with the rule that a beneficiary of an ordinary life insurance policy that does not authorize a change of beneficiary acquires a vested and absolute interest, which cannot be divested without the beneficiary’s consent, and because an absolute assignment has the effect of divesting the named beneficiary of any interest in the policy, the insured cannot assign such a policy without the beneficiary’s consent....”

44 Am.Jur.2d Insurance § 793 (2003) (footnotes omitted; emphasis added). Accordingly, we hold that, in the instant case, the fact that Bret assigned the policy to someone other than Stephen, instead of naming someone other than Stephen as beneficiary, is a distinction without a difference.

A Metro Bank

Pamela next argues that the trial court erred in entering a summary judgment in favor of Metro Bank as to the declaratory judgment. A District Court of Appeals of Florida examined the question of when an assignee for value of a life insurance policy has an interest superior to an intended beneficiary’s equitable interest in Wewahitchka State Bank v. Mixon, 504 So.2d 1328 (Fla.Dist.Ct.App.1987):

“When appellee and her former husband, Porter Mixon, were divorced in Alabama in 1978, the judgment of divorce expressly required Mr. Mixon to retain appellee as beneficiary of the two life insurance policies, of which he was the owner. No one notified Liberty National of the judgment’s restrictive provisions in regard to the policies and ap-pellee never obtained possession of the policies, leaving possession with Mr. Mixon.
“Some time later Mr. Mixon moved to Florida and in 1984 obtained a loan from appellant Bank, assigning to the Bank as collateral for the loan the life insurance policies. Prior to making the loan, the Bank contacted Liberty National and was advised that the policies were in force and effect and could be assigned for the indebtedness. Thereafter, the proper assignments were made by Mr. Mixon to the Bank in consideration for the loan. The assignments were acknowledged by Liberty National in December 1984. Since that time, the Bank has continued to hold in its possession the original insurance policies along with the assignments.
“In April 1985, Mr. Mixon died. He still was indebted to the Bank on the above-mentioned loan and therefore the Bank presented its claim on the life insurance policies to Liberty National. However, faced with a claim on the same policies by appellee, Liberty National brought an interpleader action and was permitted by the court to deposit the life insurance proceeds from the policies in question into the court registry....
“The Bank contends that its interest in the proceeds, as a bona fide assignee, is superior to appellee’s equitable interest created by the divorce decree, especially in light of the facts that appellee never perfected her interest by notifying Liberty National of her beneficiary status while the Bank did so notify Liberty National of its interest, and appellee never took possession of the policies. We agree.
“... In Couch On Insurance 2d (Rev. Ed.) Section 63A:293, the author provides the following insight into the issue involved here:
“ ‘Although a policy of life insurance is not a negotiable instrument, there is authority that a bona fide assignee for value in a life policy who has no notice of latent equities in a third party takes the assignment free and clear of such equities.... ’
“The situation involved in this appeal is substantially different from that involved in many of the cases relied upon by appellee in which, despite the language of a divorce decree making the insured’s ex-spouse the irrevocable beneficiary of a life insurance policy, the insured named, without consideration, a new donee beneficiary on the policy. In those cases, the former spouse has been found to be the superior beneficiary since the later named beneficiary was not a bona fide purchaser or assignee of the policy. The situation involved here is more akin to that in which the later named beneficiary in effect becomes a bona fide purchaser of the policy with rights superior to that of one with even a vested equitable interest....
“... [I]n the instant situation, as the bona fide assignee for value of the life insurance policies in question, appellant Bank has an interest superior to appel-lee’s equitable interest. The Bank’s status as a bona fide assignee was made possible by appellee’s total inaction in protecting hep-Interest in the policies by either taking possession thereof or by at least timely notifying Liberty National of her claim. Therefore, the Bank is entitled to the proceeds of the two policies in question.”

504 So.2d at 1328-30. Cf. Berryman v. Adams, 883 So.2d 214 (Ala.Civ.App.2003) (ruling in favor of the subsequently named beneficiary, who paid for the policy involved therein and who had no knowledge of her husband’s obligation under an earlier divorce judgment to maintain life insurance for the benefit of his minor children from a previous marriage). We find the reasoning of Mixon, supra, persuasive, and we adopt that reasoning.

A bona fide assignee is analogous to a bona fide purchaser, which this Court has defined as follows:

“ ‘A bona fide purchaser is one who (1) purchases legal title, (2) in good faith, (3) for adequate consideration, (4) without notice of any claim of interest in the property by any other party. Notice sufficient to preclude a bona fide purchaser may be actual or constructive or may consist of knowledge of facts which would cause a reasonable person to make an inquiry which ivould reveal the interest of a third party.’

Manning v. Wingo, 577 So.2d 865, 868 (Ala.1991) (emphasis added) (quoting Rolling “R” Constr., Inc. v. Dodd, 477 So.2d 330, 331-32 (Ala.1985)).

As noted, in March 1999, shortly before he purchased the Protective Life policy, Bret told Teresa Carden, a Metro Bank employee who sold insurance for Protective Life, that he needed to purchase a life insurance policy naming Stephen as the beneficiary in order to comply with the terms of the divorce judgment. Carden testified in her deposition that Bret stated that he needed to purchase the life insurance policy to comply with the terms of the divorce judgment, although she contends that Bret did not elaborate on what those terms were. In June 1999, Bret asked Carden to obtain a letter for him from Protective Life showing that Stephen had been designated as a beneficiary on the policy. According to Carden, Bret stated that he needed the letter “for the courts.” On June 16, 1999, Carden wrote a letter on Metro Bank letterhead regarding “Policy PL0640906,” requesting the information that Bret had asked her to obtain. The letter is apparently directed to Protective Life, although it does not bear Protective Life’s name or address. The letter stated:

“Please send a statement regarding the $75,000.00 beneficiary designation to Stephen D. Hanner, son.
“DO NOT include the $25,000.00 beneficiary designation to wife.
“This-must be furnished to the courts per divorce decree, and other information regarding this policy should not be disclosed.
“Thank you for your help. Please send to my office and I will deliver.
“Teresa Carden, Agent”

On August 30, 1999, Protective Life sent a letter regarding policy no. PL0640906 addressed to Bret Hanner; that letter stated:

“This letter is in answer to the request made by your agent Teresa Carden.
“As of this date, if the death benefit became payable, Stephen D. Hanner would be entitled to $75,000.00.
“Please call if I can be of any further service.”

The letter is signed by Grace B. Davis, policy service representative, policyholder services, and a copy is shown to Teresa F. Carden.

Whether the issue of notice presents a jury question has been considered in the analogous context of determining the time of commencement of the limitations period in a fraud action. That the determination is made on a case-by-case basis is evident from the following quote from McLaughlin v. Pannell Kerr Forster, 504 So.2d 264, 265 (Ala.1987):

“In State Security Life Insurance Co. v. Henson, 288 Ala. 497, 504, 262 So.2d 745, 751 (1972), this Court wrote:
‘Whether, within one year prior to filing suit, plaintiff had knowledge of such facts, or knowledge of facts which would lead a reasonable man to make diligent inquiry which would have enabled plaintiff to discover the fraud alleged ... was a question for determination by the jury.’ (Emphasis added.)
“This Court has decided that under certain circumstances the time of the discovery of the fraud or the time the fraud should have been discovered can be determined as a matter of law. In so determining, this Court does not make delphic pronouncements, but has before it either uncontroverted evidence that plaintiffs had such notice!,] Davis v. Davis, 494 So.2d 393 (Ala.1986); Kelly v. Smith, 454 So.2d 1315 (Ala.1984); Retail, Wholesale, & Department Store Employees Union, Local 153 v. McGriff, 398 So.2d 249 (Ala.1981); Moulder v. Chambers, 390 So.2d 1044 (Ala.1980); Seybold v. Magnolia Land Co., 376 So.2d 1083 (Ala.1979), or uncontroverted evidence that a plaintiff, with the ability to read, had in his/her possession a document from which the fraud could have been ascertained by a simple investigation, Colafrancesco v. Crown PontiacGMC, Inc., 485 So.2d 1131 (Ala.1986); Cooper Chevrolet, Inc. v. Parker, 494 So.2d 386 (Ala.1985); Gonzales v. U-J Chevrolet Co., [451 So.2d 244 (Ala.1984) ]; Sexton v. Liberty National Life Ins. Co., 405 So.2d 18 (Ala.1981).”

Although it is undisputed that Metro Bank did not have a copy of the divorce judgment at the time it took from Bret the assignment of the Protective Life policy, Metro Bank, through Carden, had notice that Bret had a son who was a beneficiary under the policy Bret had assigned as collateral for his loan with Metro Bank and that Bret had requested verification of the son’s beneficiary status “for the courts.” Therefore, we deem the question whether Metro Bank had a duty to inquire further into the possibility of another’s interest in the policy to be a question of fact for the jury, and we reverse the summary judgment for Metro Bank in the declaratory-judgment action.

5. Protective Life

Likewise, Pamela argues that the trial court erred in entering the summary judgment in favor of Protective Life as to the declaratory judgment. We hold that a jury question exists as to Protective Life’s knowledge based on facts developed at the time it issued the life insurance policy on Bret’s life and at the time of payment of the proceeds of the policy.

Although Carden stated in her deposition that she was paid and employed by Metro Bank, Carden signed various Protective Life forms appearing in the record as its agent. Therefore, Protective Life, through Carden, had notice of the same information that was available to Metro Bank. We deem the question whether Protective Life had a duty to inquire further into the possibility that another party had an interest in the policy also to be a question of fact for the jury.

A jury question also exists as to Protective Life’s knowledge at the time it paid the proceeds of the policy to Metro Bank. Pamela testified in her deposition, in response to questions from Pamela’s attorney, as follows:

“Q. I think you said Bret died what, August 16, 2002. What did you do with regard to the Protective Life Insurance policy when you learned of his death?
“A. The following Monday I called to see what I needed to do to place a claim for Stephen.
“Q. You called who?
“A. Protective Life claims department.”

&

In response to Pamelá’s telephone call, Protective Life wrote her a letter dated August 28, 2002, and sent her a claim form for Stephen. That letter stated, in pertinent part:

“The beneficiaries are Stephen Han-ner, 75% and Ann Hanner, 25%. However the collateral assignment from Metro Bank is for the pay off amount of $313,098.85. Unfortunately, the full amount of the insurance benefit will be paid to the bank. We need each beneficiary [to] complete a claim form so we may pay this balance to Metro Bank.
“Please have the beneficiary complete the enclosed claim form to the best of their ability. ...”

Pamela testified that she refused to submit the claim form. According to Pamela’s brief, on September 6, 2002, which was three days before Protective Life paid the proceeds of the policy to Metro Bank, Pamela’s attorney informed Protective Life by telephone and by a faxed letter of Stephen’s interest in the insurance policy. The record contains a letter from Pamela’s attorney to Protective Life dated September 6, 2002, informing Protective Life of Stephen’s interest in the policy. However, the “received” stamp on that letter indicates that it was not received until September 12, three days after Protective Life paid the proceeds to Metro Bank.

Protective Life argues that because it did not receive the letter from Pamela’s attorney until after it had paid the proceeds of the policy to Metro Bank, it could ■ not have known about Stephen’s interest in the policy before it paid the proceeds. That argument does not consider the evidence of Pamela’s telephone call shortly after Bret’s death and the letter from Protective Life mailing Pamela a claim form for Stephen. Accordingly, we hold that whether and to what extent Protective Life knew of Stephen’s interest in the policy proceeds at the time it paid the proceeds to Metro Bank is also a question of fact for the jury. Thus, the trial court erred in entering a summary judgment for Protective Life on its complaint for a declaratory judgment.

B. Pamela’s Cross-claims of Conversion and Unjust Enrichment Against Metro Bank

Pamela argues that the trial court erred in entering a summary judgment in favor of Metro Bank on Pamela’s conversion claim. “A common law action for conversion will lie for (1) a wrongful taking, (2) an illegal assumption of ownership, (3) an illegal use or misuse, or (4) a wrongful detention.” Strickland v. Kafko Mfg., Inc., 512 So.2d 714, 716 (Ala.1987). Pamela also argues that the trial court erred in entering a summary judgment on her claim that a constructive.trust should have been imposed to prevent unjust enrichment by Metro Bank.

“A constructive trust is a creation of equity that operates to prevent unjust enrichment. A constructive trust may be imposed when property has either been acquired by fraud, or where, in the absence of fraud, it would be inequitable to allow the property to be retained by the person who holds it. Rau.”

Holley v. Holley, 660 So.2d 608, 610 (Ala. Civ.App.1995). In addition to the knowledge we impute to Metro Bank through Carden, Pamela testified that she had a telephone conversation with another bank employee, Joe Allinder, who informed her, she says, that she needed to sign release forms so that Metro Bank could receive the proceeds from the insurance policy. Even though Pamela refused to sign the release forms, Metro Bank accepted the proceeds of Bret’s insurance policy pursuant to Bret’s assignment of the policy to it. For the same reason the trial court erred in finding that no genuine issue of material fact existed regarding the proper owner of the insurance proceeds, we hold that the trial court erred in entering a summary judgment in favor of Metro Bank on Pamela’s conversion and unjust-enrichment claims.

C. Pamela’s Counterclaims Against Protective Life

Pamela argues that, by disbursing the proceeds of the Protective Life policy to Metro Bank, Protective Life breached the insurance contract, of which, Pamela argues, Stephen was a third-party beneficiary. It is undisputed that the terms of the policy allowed the policy to be assigned and that the rights and interest of the beneficiary would be subject to an assignment, so long as that beneficiary was hot an irrevocable beneficiary. It is also undisputed that Stephen was never named an irrevocable beneficiary of the policy. Nevertheless, because we hold that a jury question is presented regarding the extent to which Protective Life had knowledge of Stephen’s interest in the policy before Bret assigned the policy to Metro Bank or before Protective Life paid the proceeds of the policy to Metro Bank, whether Protective Life breached the contract is also a jury question. Accordingly, we hold that the trial court erred when it entered the summary judgment in favor of Protective Life on Pamela’s breach-of-contract claim.

Pamela also contends that the trial court erred in entering a summary judgment in favor of Protective Life on Pamela’s bad-faith claim. On appeal, Pamela cites State Farm Fire & Casualty Co. v. Slade, 747 So.2d 293 (Ala.1999), which recognized the “abnormal” case of bad-faith failure to pay an insurance claim. At this point in the proceedings, we cannot determine whether the alleged bad faith in this case is of the “normal” or “abnormal” variety. The result of further proceedings before a fact-finder regarding Protective Life’s knowledge of Stephen’s interest in the policy is critical to a determination of whether Protective Life breached the contract; if it did, whether that breach was in bad faith; and if it did not, whether one or more of its actions constituted an “abnormal” case of bad faith. A summary judgment on Pamela’s bad-faith claim at this stage of the proceedings is premature.

At one point in her brief to this Court, Pamela states that she presented substantial evidence in support of her conversion and negligence claims against Protective Life. However, she fails to cite any authority or otherwise to present arguments in support of those claims. Accordingly, the trial court’s summary judgment against Pamela on those claims is due to be affirmed. See City of Birmingham v. Business Realty Inv. Co., 722 So.2d 747, 752 (Ala.1998) (“When an appellant fails to cite any authority for an argument on a particular issue, this Court may affirm the judgment as to that issue, for it is neither this Court’s duty nor its function to perform an appellant’s legal research.”); Ex parte Riley, 464 So.2d 92, 94 (Ala.1985) (“[I]t has long been the law in Alabama that failure to argue an issue in brief to an appellate court is tantamount to the waiver of that issue on appeal. An appellate court will consider only those issues properly delineated as such and will not search out errors which have not been properly preserved or assigned.... This standard has been specifically applied to briefs containing general propositions devoid of delineation and support from authority or argument.”).

III. Conclusion

We affirm the summary judgment for Protective Life as to Pamela’s conversion and negligence claims against it. With respect to Pamela’s bad-faith claim against Protective Life, we reverse the summary judgment in favor of Protective Life as premature and make no determination as to the existence of any genuine issue as to material fact. Because genuine issues as to material facts exist precluding a summary judgment in favor of Metro Bank and Protective Life as to Protective Life’s complaint for a declaratory judgment and as to all of Pamela’s claims against them other than her conversion, negligence, and bad-faith claims against Protective Life, we reverse the summary judgment and remand the case for further proceedings. Finally, we affirm the trial court’s order denying Pamela’s motion for a summary judgment because genuine issues as to material facts exist, precluding a summary judgment in her favor.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

HARWOOD, WOODALL, BOLIN, and PARKER, JJ., concur.

NABERS, C.J., recuses himself.

      . Pamela Hanner and Bret Hanner were divorced in 1994.

      . The Court in Brown expressly declined to decide whether a vested interest in a policy different from the one referenced in a divorce judgment can only be recognized if the new policy was purchased as a replacement for the policy referenced in the divorce judgment. The Court simply assumed such a requirement and concluded that the evidence clearly indicated that the new policy was indeed a replacement:
      “The intent of the insured to evade the court order by replacing the court-ordered policy may not be as important as the fact of the violation of the order. Nevertheless, a court in equity may certainly take such an intent into consideration in determining
      whether to impose a constructive trust [in favor of the person required by the divorce judgment to be named as irrevocable beneficiary], Even assuming [the father’s] intent in replacing the policy to be a material consideration, the proof here [shows that the policy was purchased as a replacement].”
      604 So.2d at 368 (bracketed language added). In the instant case, we also assume such a requirement, and we hold that Pamela has presented evidence, sufficient to overcome a summary-judgment motion, indicating that the Protective Life policy was purchased as a replacement for the State Farm policy.

      . The trial court concluded that Metro Bank, as the assignee of the Protective Life policy, was the "rightful recipient” of the policy proceeds.

      . Normally, the denial of a motion for a summary judgment is not an appealable judgment. However, this Court stated in Tanner v. State Farm Fire & Cas. Co., 874 So.2d 1058, 1066 (Ala.2003):
      "The procedural posture of the cross-motions for summary judgment in this case is like the procedural posture of the cross-motions in Lloyd Noland Foundation v. City of Fairfield Healthcare Authority, 837 So.2d 253 (Ala.2002), which held that an 'appeal from a pretrial final judgment disposing of all claims in the case (as distinguished from a Rule 54(b) summary judgment disposing of fewer than all claims) entitles the [appellant], for purposes of our review, to raise issues based upon the trial court’s ... denial of [the appellant’s] summary-judgment motions. See Ala. R.App. P. 4(a)(1).’ ”
      (Quoting Lloyd Noland Found, v. City of Fairfield Healthcare Auth., 837 So.2d 253, 263 (Ala.2002).) The procedural posture of this case is similar to the procedural posture in National Security Fire & Casualty Co. v. Vintson, 414 So.2d 49, 51 (Ala.1982), in which this Court held:
      "[W]here the plaintiff claims misrepresentation in the inception of the contract, ... the plaintiff has the right to present his case to the jury under either a breach of contract theory or the tort of misrepresentation or both, because the same facts could support a finding • that the contract did exist ....
      "The plaintiff may then elect to submit either theory, or both, to the factfinder, [Ala. R. Civ. P.] 8(a), with the proper instructions by the court to the jury that it must determine whether one, or both, of these theories are supported by the evidence, if at all. If the jury returns a verdict for the plaintiff, it may only award damages under one of the theories, not both. However, the choice rests with the jury. See, USF & G v. McKinnon, 356 So.2d 600 (Ala.1978).”


source: Caselaw Access Project

author: WOODALL, Justice. SEE, Justice

license: Public Domain

text:
    Christiane ZIADE and Robert Ziade, individually and as parents of Chris Ziade, a deceased minor v. Dr. Henry J. KOCH, Dr. Robert A. Wood, and Mobile Obstetrics & Gynecology, P.C.
    1050378.
    Supreme Court of Alabama.
    June 30, 2006.
    Rehearing Denied Sept. 29, 2006.

      David Randolph Smith of Law Offices of David Randolph Smith and Edmund J. Schmidt III, Nashville, Tennessee; and Edgar P. Walsh of Engel, Walsh & Associates, Mobile, for appellants.
    Michael A. Florie of Starnes & Atchison, LLP, Birmingham; and W. Christian Hines III and John Peter Crook McCall of Starnes & Atchison, LLP, Mobile, for ap-pellees.
   WOODALL, Justice.

Christiane Ziade and Robert Ziade, individually and as parents of Chris Ziade, a stillborn child, appeal from a summary judgment in favor of Mobile Obstetrics & Gynecology, P.C. (“MOG”), and Dr. Henry J. Koch and Dr. Robert A. Wood, employees of MOG (collectively referred to as “the defendants”), in the Ziades’ wrongful-death action against them based on the intrauterine death of their fetus. We affirm.

I. Factual Background

According to the undisputed facts, on February 17, 2000, Christiane Ziade, early in her pregnancy, began receiving prenatal care at MOG. On August 28, 2000, she visited Dr. Koch, reporting a “stark decrease in fetal movement.” After an examination revealed no cause for alarm, she returned home. She returned to MOG on September 2, 2000, and was examined by Dr. Wood. At that time, a fetal heartbeat was detected.

According to the Ziades’ complaint, from September 2, 2000, to September 12, 2000, the date of her next scheduled appointment at MOG, Christiane “experienced absolutely no fetal movement.” Tests conducted by Dr. Koch on September 12, at approximately 35 weeks of gestation, revealed that the fetus was dead. On September 14, 2000, the fetus was delivered through induced labor.

On September 15, 2000, an autopsy revealed that the fetus had died from a “vascular accident,” namely, a “severely torsed umbilical cord at the abdominal surface.” The autopsy report listed the “date of death” as September 14, 2000, that is, the date of delivery. The Ziades commenced this action on September 11, 2002, alleging that “[t]he Defendants’ acts and omissions caused the wrongful death of Baby Chris Ziade,” which, the complaint averred, occurred on September 15, 2000.

The defendants answered the complaint on October 28, 2002. Discovery proceeded in the case, and trial was scheduled for November 14, 2005. The trial court’s general pretrial order required each party to furnish the other parties, at least 60 days before trial, the names and addresses of each expert witness expected to testify. The Ziades identified two expert witnesses on whom they intended to rely, namely, Dr. William Greene and Dr. David Schwartz. The defendants deposed those witnesses on September 6, 2005, and September 22, 2005, respectively. However, on September 13, 2005, two days before the 60-day deadline, the Ziades identified a third expert witness, namely, Dr. Frank Battaglia. By an order, the trial court extended the date for identifying expert witnesses to September 19, 2005, and required the Ziades to make all experts available for deposition by September 26, 2005. On that date, the defendants deposed Dr. Battaglia.

On October 4, 2005, the defendants moved for a summary judgment. The motion was based in substantial part on the testimony of the Ziades’ experts, who unanimously opined that the fetus had died at least 18 hours before its death was detected on September 12. In their motion, the defendants asserted — for the first time — that the Ziades’ claims were barred by the limitations period in Ala.Code 1975, § 6-2-38(a), which provides: “An action by a representative to recover damages for wrongful act, omission, or negligence causing the death of the decedent under Sections 6-5-391 and 6-5-410 must be commenced within two years from the death.”

On October 13, 2005, following the expiration of the period as extended by the trial court for the Ziades to disclose expert witnesses or to present expert testimony, the defendants moved, pursuant to Ala. R. Civ. P. 15(a), to amend their answer to assert the limitations period in § 6-2-38(a). The trial court granted the defendants’ motion over the Ziades’ opposition. The trial court subsequently entered a summary judgment in favor of the defendants, and the Ziades appealed.

On appeal, the Ziades contend that the trial court erred in allowing the defendants to amend their answer to assert the limitations period of § 6-2-38(a) and, therefore, that the bar presented by the statute of limitations, which was not raised in the answer, has been waived. In any event, they further insist, their claims are not time-barred, because, they say, the limitations period began on September 14, 2000, the date of delivery, regardless of when the death actually occurred. We first address the propriety of the amendment to the defendants’ answer.

II. The Amendment

It is undisputed that the defendants’ request to amend their answer was made less than 42 days before the date the case was set for trial, as was the amendment sought in Ex parte Liberty National Life Insurance Co., 858 So.2d 950 (Ala.2003), on which the defendants rely. Particularly applicable here are some principles discussed in that case:

“Typically, if a party fails to plead an affirmative defense, that defense is deemed to have been waived. Robinson v. Morse, 352 So.2d 1355,1356 (Ala.1977) (citing 5 Wright & Miller, Federal Practice & Procedure § 1278, pp. 339-52); see also Rule 8(c), Ala. R. Civ. P. However, there are exceptions to this rule, one of which is that an affirmative defense can be revived if a party is allowed to amend his pleading to add the defense. Piersol v. ITT Phillips Drill Div., Inc., 445 So.2d 559, 561 (Ala.1984) (stating that ‘where no actual prejudice to the opposing party is shown, and no undue delay is demonstrated, a court may permit the amendment of the answer to include a defense of the running of the period of the statute of limitations, though Rule 8(c) of the Alabama Rules of Civil Procedure requires such a defense to be pleaded as an affirmative defense’).
“Rule 15(a), Ala. R. Civ. P., reflects Alabama’s liberal policy in favor of allowing amendments to pleadings:
“ ‘Unless a court has ordered otherwise, a party may amend a pleading without leave of court, but subject to disallowance on the court’s own motion or a motion to strike of an adverse party, at any time more than forty-two (42) days before the first setting of the case for trial, and such amendment shall be freely allowed when justice so requires. Thereafter, a party may amend a pleading only by leave of court, and leave shall be given only upon a showing of good cause.
“... However, in light of the overarching liberal policy of allowing amendments under Rule 15, the appropriate way to view the request for leave to amend, if a party demonstrates ‘good cause, ’ is as though the request had been brought more than 12 days before trial, when the trial court does not have ‘unbridled discretion’ to deny the leave to amend, but can do so only upon the basis of a ‘valid ground’ [such as actual prejudice or undue delay].”

858 So.2d at 953-54 (emphasis and bracketed language added).

The defendants contend that they have demonstrated good cause for amending their answer less than 42 days before the trial date. They point out that the date of death alleged in the complaint was September 15, 2000, and, therefore, that the claims, which were filed on September 11, 2002, were not facially barred. “A plea of limitation of action as to the death claim in the original answer,” the defendants argue, “would have been improper and unfounded. ” Defendants’ brief, at 40 (emphasis added). According to the defendants, discovery from the Ziades’ experts could not have been, and was not, completed until September 26, 2005. “It only became clear, after the completion of the depositions of the Ziades’ experts, that the entirety of the Ziades’ proof and the entirety of the medical evidence was that the death occurred .... more than two years prior to the filing of the complaint.” Id. at 40-41. The defendants argue that they “promptly prepared and filed [their] motion for summary judgment” and the motion to amend their answer, as soon as it became known that the testimony of the Ziades’ experts would be “uniform and un-contradicted” as to the timeliness issue. Id. at 39. Thus, they insist, they demonstrated good cause for amending their answer less than 42 days before the trial date. We agree.

“Summary judgment is appropriate only when ‘there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.’ ” Perry v. City of Birmingham, 906 So.2d 174, 175 (Ala.2005) (quoting Ala. R. Civ. P. 56(c)(3)); see also Dobbs v. Shelby County Econ. & Indus. Dev. Auth., 749 So.2d 425 (Ala.1999). “The court must accept the tendencies of the evidence most favorable to the nonmoving party and must resolve all reasonable factual doubts in favor of the nonmoving party.... In reviewing a summary judgment, an appellate court, de novo, applies the same standard as the trial court.” Perry, 906 So.2d at 175.

Summary judgment would not be appropriate on the timeliness issue if there existed a genuine issue as to when the fetus died. More specifically, if there was substantial evidence indicating that the fetus died on or after September 11, 2000, there was no basis for a summary judgment.

In his September 6, 2005, deposition, Dr. Greene testified at length regarding the timing of the fetus’s death:

“Q. [Defendants’ counsel:] Do you feel that the baby was healthy on September 2[, 2000]?
“A. [Dr. Greene:] I believe it was determined that the baby was not healthy on [September] 2.
“Q. What do you base that on?
“A. The fact that the baby was determined to be dead on September 12, that the condition of the baby on its birth on September 14 would indicate it had been dead a fair amount of time.
“Q. How long?
“A. I would defer to a placental or pathology expert on that. That’s— there’s not an abundance of evidence in the autopsy report that I saw, and I am not really an expert in that particular area, as far as timing fetal death, and I don’t intend to offer an opinion, other than just to say it was greater than IS hours, that’s for sure; greater than, probably, 4 or 5 days, for the skin to be sloughed off and—
“Q. Has he shown you the report from his expert?
“A. No, I haven’t seen a report from the expert. I saw the pathology report.
“Q. Has he discussed with you what Dr. Schwartz is going to say?
“A. No.
“Q. Do you know Dr. Schwartz?
“A. Yes.
“Q. Did you suggest Dr. Schwartz to him?
“A. I did.
“Q. And would you say that Dr. Schwartz has greater expertise than you in areas, say, of timing fetal death?
“A. As with respect to looking at the condition of an expired fetus, certainty-
“Q. But, basically, what you’re telling me is, in your view, the baby had been dead for a good while before [Mrs. Ziade] came in on September 12?
“A. That’s right.
“Q. Well, is there any clearer statement you can give me about — and again, if this is something you want to say, ‘Let Dr. Schwartz handle this,’ that’s fine; I just don’t want to get surprised later. Is there any clearer statement you want to make about Dr. Greene’s opinion about time of death other than it was certainly more than 48 hours before she presented [on September 12]? Is that what you said?
“A. That’s correct.
“Q. On [September] 12, maybe as long as, I think Dr. Schwartz says a week earlier, do you have any—
“A. I would defer to him with respect to the exact time of fetal death.
“Q. But you’re comfortable with more than 48 hours?
“A. I am.
“Q. Just so I can put that in dates, if [Mrs. Ziade] presented on [September] 12 with a dead baby, we know that from the chart, right?
“A. That’s correct.
“Q. Then, in your opinion, the baby would have been dead at sometime prior to [September] 10?
“A. That’s correct.
“Q. And as far as how far back that would go towards [September] 2, you would leave that for Dr. Schwartz?
“A. That’s correct

(Emphasis added.)

Dr. Schwartz, the Ziades’ “placental pathologist” to whom Dr. Greene deferred in his deposition testimony, testified at length on the timing of the fetus’s death. His September 22, 2005, deposition states, in pertinent part:

“Q. [Defendants’ counsel:] You say fetal demise of a minimum, of seven days prior to delivery. So, would you say at least seven days and perhaps more? Is that what we’re looking at here?
“A. [Dr. Schwartz:] A minimum of seven days, yes, sir. And, like I said, there’s going to be some variability when we look at timing of fetal demise .... We obviously have to have a starting point. We have to have a median to our range, and mine would be seven days. Could it have been eight days? Yes, sir.
“Q. And that would be eight days prior to delivery, as you pointed out, and that would be — delivery was on September 12, 2000, correct?
“A. [Delivery was on September] 14, actually.
“Q. You’re correct. So, just so I can get the dates to match up with our opinions, you would say fetal demise— the evidence to a reasonable degree of medical certainty would suggest fetal demise on or before the 7th of September?
“A. Approximately the 7th of September. Could have been — also could have been sooner. But, you know, we — I’m talking about a mean or a modal.
“Q. Your best opinion is all I’m—
“A. My best opinion is seven days pri- or to delivery.
“A. There’s also — another thing we look at to time fetal demise are degenerative changes of the chorionic.... And we, we’re seeing areas of chorionic villi there that are essentially becoming degenerated or fibrotic with vascular collapse. And that really is a change that goes along with those sep-tations that we see; also, in my opinion, is consistent with approximately seven days of intrauterine fetal demise prior to delivery.
“Q. And that evidence, in your best opinion, to a reasonable degree of medical certainty, would be consistent with fetal demise of a minimum of 7 days prior to September 14?
“A. Yes, sir. It can start earlier than that. But, again, we have to look not just for the change, but how diffuse or pronounced the change is. And in my opinion, to the extent of diffuseness that we have it here, 7 days would be the most reasonable, in my opinion, timing for the fetal demise prior to delivery.”

(Emphasis added.)

Dr. Battaglia, the last of the Ziades’ designated experts, testified on September 26, 2005. When asked his opinion as to the date of the fetus’s death, he deferred entirely to Dr. Schwartz. In other words, he stated that he would not offer an opinion on the date of death different from the one offered by Dr. Schwartz.

Once Dr. Battaglia had been deposed, it became apparent that there would be no expert testimony indicating that the fetus had died within the two-year limitations period. However, that fact could not be established before September 26, 2005, when the last of the Ziades’ designated experts testified. Thereafter, the defendants had only a seven-day window in which to amend their answer without leave of court. These facts constitute good cause for the defendants’ failure to file the amendment outside the 42-day period. Thus, the trial court could have denied the amendment only for a “valid ground,” such as “actual prejudice.” 858 So.2d at 953.

In that connection, the Ziades contend that “[t]he touchstone principle that called for denying the amendment and the summary judgment is undue prejudice.” Ziades’ brief, at 19 (emphasis added). The Ziades insist that they were “boxed in” by the timing of the amendment, which prevented them from acquiring “expert proof ... to refute the ‘earlier’ date of death issue.” Id. at 19-20. They argue that they were, therefore, prejudiced by the fact that the amendment was filed “after all expert discovery had been concluded.” Id. at 17. We disagree.

Prejudice, in the context of Rule 15(a), Ala. R. Civ. P., amendment, simply “ ‘means that the nonmoving party “must show that it was unfairly disadvantaged or deprived of the opportunity to present facts or evidence which it would have offered had the ... amendments been timely.” ’ ” Ex parte GRE Ins. Group, 822 So.2d 388, 391 (Ala.2001) (quoting Cuffy v. Getty Ref. & Mktg. Co., 648 F.Supp. 802, 806 (D.Del.1986)). The Ziades were disadvantaged only to the extent that, because the discovery deadline had passed before the defendants moved to amend their answer, they were deprived of the theoretical opportunity to procure an expert who would refute the unequivocal testimony of their three experts as to the date of death. That is not the type of prejudice contemplated by the amendment process. The trial court did not err, therefore, in allowing the amendment.

III. Limitations Period

The Ziades contend that the two-year limitations period should have begun running on September 14, 2000, the date of delivery. Thus, they argue, their action, which was filed on September 11, 2002, is not time-barred. It is undisputed that the Ziades’ once-viable fetus was, in fact, dead on September 12, 2000, two days before delivery, and it is uncontroverted that the fetus died—at the latest—on September 10, 2000. In essence, the Ziades urge us to hold that the.two-year limitations period begins to run in an action for the wrongful death of a viable fetus on the date of delivery, rather than on the date of the death in fact. This is so because, they insist, “a person cannot die until they are bom. ” Ziades’ brief, at 32.

The Ziades cite no caselaw from this or any jurisdiction addressing this issue. They rely on the following patchwork of statutes contained in Title 22 of the Alabama Code, including Ala.Code 1975, § 22-9A-l(2); portions of the Alabama Determination of Death Act, Ala.Code 1975, § 22-31-1 et seq. (“the ADDA”), Alabama’s version of the Uniform Determination of Death Act (“the UDDA”); and portions of the Alabama Uniform Anatomical Gift Act, Ala.Code 1975, §§ 22-19^0 to -47 (“the AUAGA”):

“[§ 22-19-41:] For the purposes of this article, the following terms shall have the meanings respectively ascribed to them by this section:
“(2) DECEDENT. A deceased individual and includes a stillborn infant or fetus.”
“[§ 22-9A-1:] For the purposes of this chapter, the following words shall have the following meanings unless the context clearly indicates otherwise:
“(2) FETAL DEATH. Death prior to the complete expulsion or extraction from the mother of a product of human conception, irrespective of the duration of pregnancy and which is not an induced termination of pregnancy. The death is indicated by the fact that after the expulsion or extraction the fetus does not breathe or show any other evidence of life, such as beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles. Heartbeats are to be distinguished from transient cardiac contractions; respirations are to be distinguished from fleeting respiratory efforts or gasps.”

“[§ 22-31-1:] An individual who, in the opinion of a medical doctor licensed in Alabama, has sustained either (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead. A determination of death must be made in accordance with accepted medical standards.”

(Emphasis added.)

The Ziades attempt to support their position by splicing selective portions of these sections into their argument. Specifically, they state:

“Plaintiffs submit that because a determination of death can only be made by a medical finding that there is, in fact, irreversible cessation of all functions of the entire brain, including the brain stem [§ 22-31-1], with further findings that the criteria for fetal death have been satisfied [§ 22-9A-l(2)], date of death determination can only be made by an Alabama physician [§ 22-31-1] after the stillbirth [§ 22-19-41(2)]..”

Ziades’ brief, at 30-31 (emphasis added). “In other words,” they argue, “death .will not be determined until a ... physician [licensed in Alabama] carefully examines the fetus after the fetus is born.” Id. at 24. None of their experts is licensed in Alabama. Therefore, they contend, the fetus was legally dead only as so pronounced on September 15, 2000, by the physician performing the autopsy. We disagree with this approach.

The genesis of the UDDA can be traced to “improvements in resuscitative and supportive measures,” contributing to a widely-recognized need for the “formulation of a new criteria of death [in order] to deal with (1) increased [long-term-care] burdens on patients, families, and hospital resources ... and (2) an obsolete criteria for determining death leading to a controversy in organ transplantation.” Samantha Weyrauch, Acceptance of Whole-Brain Death Criteria for Determination of Death: A Comparative Analysis of the United States and Japan, 17 UCLA Pac. Basin L.J. 91, 96-99 (1999) (footnotes omitted). The most important contribution of the UDDA and the ADDA was the adoption of “brain death” as a legitimate alternative to the traditional “‘standard for determining death,’ ” which “was couched in terms of ‘the permanent cessation and absence of respiration and circulation.’ ” Eric C. Sutton, Giving the Gift of Life: A Survey of Texas Law Facilitating Organ Donation, 22 St. Mary’s L.J. 959, 962-63 (1991)(footnote omitted). Indeed, it is the termination of life support as an alternative to the indefinite, artificial maintenance of existence, and as a prerequisite to vital-organ transfer, that is the implicit concern of the ADDA and the UDDA. See Gallups v. Cotter, 534 So.2d 585, 588 (Ala.1988) (“The [pre-ADDA version of Alabama’s determination-of-death] statute ... clearly contemplates the termination of life support systems upon a determination of death.” (emphasis added)); see also Ala. Code 1975, § 22-31-4 (“A person who acts in accordance with the terms of [the ADDA] is not liable for damages in any civil action or subject to prosecution in any criminal proceeding for his act.”). Obviously, this concern has not the slightest application where the death of a fetus has indisputably occurred in the mother’s womb.

Similarly, the AUAGA is, by definition, concerned only with organ donation and transplantation and has no application here. Indeed, the terms in § 22-19^11 expressly apply only to the AUAGA. Moreover, the definition in subsection (2) merely indicates that a “stillborn fetus” qualifies as a potential organ donor. Thus, that Code section does not aid the Ziades.

Neither does § 22-9A-l(2) support the Ziades’ argument that fetal death must be dated post-delivery following a physical examination of the body and the umbilical cord. Not only is that definition also limited to the specific portion of the Code in which it appears, but the text expressly includes death that occurs — as in this case — “prior to ... extraction from the mother.” (Emphasis added.)

In short, none of the statutes cited by the Ziades, construed either separately or in concert, supports the Ziades’ argument that the date of intrauterine death must— as a matter of law- — be reckoned from the date of delivery. The statutes that are applicable, namely, § 6-2-38(a) and § 6-5-410, compel the contrary conclusion. Section 6-5-410 is the “source of the period of limitations” for all wrongful-death actions in this state, including § 6-2-38(a). Cofer v. Ensor, 473 So.2d 984, 992 (1985). Section 6-5-410 provides, in pertinent part: “[A wrongful-death] action must be commenced within two years from and after the death of the testator or intestate.” (Emphasis added.) That language is repeated in § 6-2-38(a), requiring that an action for wrongful death “be commenced within two years from the death.” (Emphasis added.) Nothing in the text of these statutes, with their emphasis on “the death,” suggests that the term may turn on a technicality or a fiction. The Ziades’ approach would, in a sense, create two deaths — an actual death, and a legal, or fictional, death to be used as the benchmark for the running of the limitations period. The Ziades urge us to adopt such a bright-line test for the sake of certainty and convenience.

Despite the ostensible convenience of such a rule, a line should not be so bright as to obscure reality. If expert testimony establishes that the fetus died, in fact, outside the two-year limitations period, the action will be time-barred. Plaintiffs who wait until one day short of two years after a fetus is indisputably dead in the womb do so at their peril. The undeniable reality is that this fetus was dead at least two days before the date advocated by the Ziades as the benchmark date.

For these reasons, the trial court did not err in entering a summary judgment for the defendants. That judgment is, therefore, affirmed.

AFFIRMED.

LYONS and HARWOOD, JJ., concur.

NABERS, C.J., and SEE, STUART, SMITH, and PARKER, JJ., concur specially.

BOLIN, J., concurs in the result.

SEE, Justice

(concurring specially).

I concur in the main opinion. I write specially only to address a question of terminology.

The main opinion notes that the Ziades insist that “a person cannot die until they are born.” Ziades’ brief, at 32. This argument is necessary for the Ziades because, if Chris Ziade died at least four days before he was born, as the uncontra-dicted evidence indicates, then the wrongful-death action filed on his behalf fails as untimely filed. The implication of this argument is that there was not a person in being until Chris Ziade left the womb; therefore, he could not have died until the day of his birth. Because this is the argument, it is not surprising that the briefs of both parties repeatedly refer to Chris Ziade as “the fetus.” When both parties use a term in presenting their case on appeal, it is not inappropriate for this Court also to use that term, as the main opinion does.

Unfortunately, the term “fetus” has come to occupy a position in the cultural debate on abortion. Thus, the term “fetus” connotes that the unborn child is, in the eyes of the law, not entitled to the full panoply of rights to which a “person” is entitled. Recalling a history in this country and elsewhere where “[s]ome ... are more equal than others,” it is not surprising that this connotation — that the unborn child does not have full human rights' — -is taken as a statement that the unborn child is somehow less than fully human, and it is therefore not surprising that the use of the term “fetus” often evokes a visceral reaction.

The recent amendment to Ala.Code 1975, § 13A-6-1, proposed by Act No. 2006-419, Ala. Acts 2006 (approved April 17, 2006), defines “person” to include an “unborn child.” The legislature has thus recognized under that statute that, when an “unborn child” is killed, a “person” is killed. I would use the term “unborn child” to describe Chris Ziade at the time of his death.

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

      . The defendants also contend that § 6-2-38(a) “cannot be waived for failure to plead within a responsive pleading.” Defendants' brief, at 56 (emphasis added). Because we conclude that the answer was properly amended, we do not reach this issue.

      .For the first time in their reply brief, the Ziades urge us to adopt a discovery rule in cases involving intrauterine death. They analogize this type of death with unexplained disappearances, sometimes referred to colloquially as “Enoch Arden cases,” based on Alfred Lord Tennyson's poetical character, "who suddenly returns after a long absence from which he was not expected to return at all." Elizabeth S. Scott & Robert E. Scott, Parents as Fiduciaries, 81 Va. L.Rev. 2401, 2471 n. 198 (1995). It is well settled, however, that the Court will not entertain an argument made "for the first time in an appellant’s reply brief.” See Steele v. Rosenfeld, 936 So.2d 488, 493 (Ala.2005) (" ‘[A] n argument may not be raised, nor may an argument be supported by citations to authority, for the first time in an appellant’s reply brief,’ ” (quoting Improved Benevolent & Protective Order of Elks v. Moss, 855 So.2d 1107, 1111 (Ala.Civ.App.2003), abrogated on other grounds, Ex parte Full Circle Distribution, L.L.C., 883 So.2d 638 (Ala.2003))).

      . The statutes addressed by the parties, to the extent those statutes use any such term, use some form of the term "fetus.” See Ala.Code 1975, § 22-9A-l (2) (defining "fetal death”), and Ala.Code 1975, §§ 22-19-40 to -47 (defining the term “decedent” to include "a stillborn infant or fetus”). See also Eich v. Town of Gulf Shores, 293 Ala. 95, 100, 300 So.2d 354, 358 (1974) (holding "that the parents of an eight and one-half month old stillborn fetus are entitled to maintain an action for the wrongful death of the child”).

      . The statute under which the Ziades sue provides a cause of action for the wrongful "death of a minor child.” See Ala.Code 1975, § 6-5-391. In Eich v. Town of Gulf Shores, 293 Ala. 95, 300 So.2d 354 (1974), this Court impliedly held that a viable fetus is a “child” within the terms of that statute.

      . George Orwell, Animal Farm 133 (Penguin Group 1996) (1946).