author: SEE, Justice.

text:
    Ex parte EAST ALABAMA MENTAL HEALTH-MENTAL RETARDATION BOARD, INC., and Dr. Anne Penney. (In re James Crayton Walker, deceased, by and through his personal representative, Arnold Umbach, Jr., and James Christopher Walker, son and heir of the estate of James Crayton Walker, deceased v. East Alabama Mental Health-Mental Retardation Board, Inc., and Dr. Anne Penney).
    1041601.
    Supreme Court of Alabama.
    March 17, 2006.
    Carroll H. Sullivan, Christopher L. George, and Carter R. Hale of Scott, Sullivan, Streetman & Fox, P.C., Mobile, for petitioners.
    Larry G. Cooper, Auburn, for respondents.
   SEE, Justice.

East Alabama Mental Health-Mental Retardation Board, Inc. (“the Board”), and its director, Dr. Anne Penney, defendants in an action pending in the Lee Circuit Court, petition this Court for a writ of mandamus directing the Lee Circuit Court to enter a summary judgment in favor of the Board and Penney because, they argue, the underlying action was commenced after the statutory limitations period had expired. We deny the petition.

Background

On August 9, 2002, Donald W. Walker killed his father, James C. Walker. On August 5, 2004, the personal representative of the estate of James C. Walker, Arnold Umbach, Jr. (“Umbach”), sued the Board, Penney, the Alabama Board of Adjustment, and Donald Walker (collectively “the defendants”) in the Lee Circuit Court. Umbach claimed that the defendants’ wanton, willful, and malicious conduct and their negligence caused James Walker’s death.

When Umbach’s counsel filed his complaint, he apparently also filed with the circuit clerk of the Lee Circuit Court summonses for service upon the defendants, requesting service by certified mail; the circuit clerk presumably issued the summonses. See Rule 4(a)(1), Ala. R. Civ. P. (“Upon the filing of the complaint, ... the clerk shall forthwith issue the required summons or other process for service upon each defendant.”). The clerk for the Lee Circuit Court issued certified-mail cards and gave them to Umbach’s counsel to use to mail the complaints and summonses to the defendants. The defendants received service by certified mail on October 24, 2004, over two and one-half months after Umbach had filed his complaint.

On June 7, 2005, the Board and Penney moved for a summary judgment arguing that, although Umbach filed his complaint within two years of the date of James Walker’s death, because Umbach “made no attempt to serve the summonses and complaint on Defendants until more than 2$ months after the expiration of the two-year statute of limitations [set forth in § 6-5-410(d), Ala.Code 1975,] the action was not commenced until the statute of limitations had expired.” The Board and Penney’s mandamus petition, Appendix 4, p. 4. The trial court, apparently treating the summary-judgment motion as a motion to dismiss, denied the motion. The Board and Penney now petition this Court for a writ of mandamus directing the Lee Circuit Court to enter a summary judgment in their favor on the basis that the action was commenced outside of the statutory limitations period.

Standard of Review

“ ‘A writ of mandamus is an extraordinary form of relief.’ Ex parte Alabama Dep’t of Mental Health & Mental Retardation, 837 So.2d 808, 810 (Ala.2002). ‘[A] writ [of mandamus] will issue only upon a showing of “(a) a clear legal right in the petitioner to the order sought, (b) an imperative duty upon the respondent to perform, accompanied by a refusal to do so, (c) the lack of another adequate remedy, and (d) the properly invoked jurisdiction of the court.” ’ Ex parte Puccio, 923 So.2d 1069, 1072 (Ala. 2005) (quoting Ex parte McInnis, 820 So.2d 795, 798 (Ala.2001)).”

Ex parte City of Tuskegee, 932 So.2d 895, 900 (Ala.2005).

Analysis

Section 6 — 5—410(d), Ala.Code 1975, requires that an action based on the wrongful act, omission, or negligence of any person that results in the death of another be “commenced within two years from and after the death of the testator or intestate.” See also Dukes v. Jowers, 584 So.2d 524, 525 n. 2 (Ala.1991) (“a wrongful death action ‘must be commenced within two years from and after the death of the testator or intestate’ ” (quoting § 6-5-410(d))). Here, Donald Walker murdered James Walker on August 9, 2002, and Um-bach filed his complaint on August 5, 2004. Therefore, Umbach timely filed his complaint within the statutory limitations period.

Although Rule 3, Ala. R. Civ. P., states that “[a] civil action is commenced by filing a complaint with the court,” this Court has held that the filing of a complaint is not the sole factor in determining when an action is “commenced.” A major function of Rule 3, Ala. R. Civ. P., is to identify, with certainty, the specific time when a civil action is initiated. The filing of a complaint is, therefore, a significant factor in commencing an action and suspending the operation of the applicable statute of limitations; however, it is not the sole factor. Ward v. Saben Appliance Co., 391 So.2d 1030, 1032 (Ala.1980). This Court has held that the filing of a complaint, standing alone, does not commence an action for statute-of-limitations purposes. “ ‘Rather, the filing must be made with the intention of serving process upon the opposing party or parties.’ ” Maxwell v. Spring Hill College, 628 So.2d 335, 336 (Ala.1993) (quoting Latham v. Phillips, 590 So.2d 217, 218 (Ala.1991)).

The Board and Penney argue that Um-bach did not possess the requisite intent to serve process on the defendants when he filed his complaint. The Board and Penney rely on Maxwell, supra, Latham, supra, Freer v. Potter, 413 So.2d 1079 (Ala.1982), and Ward, supra, in support of their argument that Umbach’s action was not “commenced” when it was filed. However, unlike the plaintiffs’ conduct in those cases, Umbach’s conduct does not show that Umbach did not possess the present intent to serve the defendants when he filed his complaint.

In Maxwell v. Spring Hill College, Maxwell filed a complaint on the day the statutory limitations period would have run on his claim. However, Maxwell did not provide the circuit clerk with summonses, service instructions, or addresses to facilitate service on the defendants until approximately one month after he had filed the complaint. Spring Hill moved for a summary judgment, arguing that Maxwell lacked the intent to have the complaint served immediately and, therefore, that the filing of the complaint did not commence the action. The trial court granted Spring Hill’s summary-judgment motion. This Court agreed with the trial court that Maxwell did not have the intent to serve Spring Hill when he filed his complaint and therefore affirmed the summary judgment in favor of Spring Hill. 628 So.2d at 335.

In Latham v. Phillips, the incident giving rise to Latham’s complaint, which was subject to a two-year statute of limitations, occurred on March 5, 1988, and Latham filed her complaint on March 2, 1990. She paid the filing fee on March 5, 1990. When she filed her complaint, Latham did not give the clerk any instructions as to how to proceed with service of process. On April 4, 1990, Latham finally provided the clerk with the summonses for the defendants, Phillips and Easterwood. Phillips moved for a summary judgment, arguing that Latham was barred from prosecuting her claim because the statutory limitations period had expired when the action was finally “commenced.” The trial court granted Phillips’s motion, and this Court affirmed the trial court’s judgment. 590 So.2d at 217-18.

In Freer v. Potter, Freer filed his complaint one day before the statutory limitations period was to run. When he filed his complaint, Freer ordered the clerk to withhold service of process. The defendants each moved for a summary judgment, arguing that Freer was barred from prosecuting his claim because, they argued, the statutory period of limitations had expired when the action was commenced. Freer appealed, and this Court held, among other things, that the action was barred by the statute of limitations because, although the complaint had been filed, Freer had intentionally interfered with service by ordering that service be withheld; therefore, the action was not “commenced” at the time of filing. 413 So.2d at 1081.

Likewise, in Ward v. Saben Appliance Co., the accident that was the basis of Ward’s complaint occurred on September 16, 1978, and Ward filed her complaint on September 17, 1979, the last day before the statutory limitations period was to run. However, after filing her complaint, Ward directed the clerk to withhold personal service on the defendants until she could obtain additional information on the case. Ward obtained the additional information and instructed the clerk’s office to proceed with service. Saben Appliance Company and Brenda Allen, Inc., were eventually served on January 18, 1980, four months after the complaint was filed. This Court held that, although the filing of a complaint is a significant factor in commencing an action and suspending the operation of the applicable statute of limitations, it is not the sole factor to be considered. 391 So.2d at 1034. The Court concluded:

“We hold that in the present case the action was not ‘commenced’ when it was filed with the circuit clerk because it was not filed with the bona fide intention of having it immediately served. To hold otherwise would permit a party to extend unilaterally the period of limitations by an oral request that actual service be withheld, thereby giving that party an additional period of time within which he could conduct an investigation to determine whether[,] in fact, he had a claim. To permit this would violate the fundamental concept of repose found within every statute of limitations.”

391 So.2d at 1035.

This case, however, is readily distinguishable from Maxwell, Latham, Freer, and Ward, because the record is devoid of any indication that at the time that Um-bach filed his complaint he did not intend to serve process upon the Board, Penney, and the other defendants. Umbach filed his complaint on August 5, 2004. Umbach apparently provided the clerk with the necessary documents or information and the clerk apparently issued summonses; the Board and Penney do not contend otherwise. The clerk completed the certified return-receipt cards and gave them to Umbach for mailing the summonses and complaints to the Board, Penney, and the other defendants. The Board and Penney’s mandamus petition, p. 2 n. 1. Thus, the evidence suggests that Umbach intended to serve process upon the defendants when he filed the complaint; he did all that was required by the Rules of Alabama Civil Procedure to facilitate service, short of placing the summonses and complaints in the mail.

The Alabama Rules of Civil Procedure provide:

“In the event of service by certified mail, the clerk shall place a copy of the process and complaint or other document to be served in an envelope and shall address the envelope to the person to be served with instructions to forward.... The clerk shall affix adequate postage and place the sealed envelope in the United States mail as certified mail with instructions to forward, return receipt requested, with instructions to the delivering postal employee to show to whom delivered, date of delivery, and address where delivered. The clerk shall forthwith enter the fact of mailing on the docket sheet of the action and make a similar entry when the return receipt is received.”

Rule 4(i)(2)(B), Ala. R. Civ. P. Therefore, Rule 4(i)(2), Ala. R. Civ. P., contemplates that the clerk will mail the summonses and complaints.

The Board and Penney state that it is undisputed that the clerk’s office does not provide postage for pleadings served by certified mail, and that, therefore, when a complaint is filed in the clerk’s office of the Lee Circuit Court, it is the practice of that office to provide certified-mail cards to counsel and for counsel then to mail the summonses and complaints. The Board and Penney’s mandamus petition, p. 2 n. 1. The circuit clerk apparently shifted the responsibility for mailing the summonses and complaints to Umbach. Umbach’s delay of two and one-half months may be some evidence indicating that, at the time he filed the complaint, he lacked the intention to immediately serve the summons and complaint; however, the issuance of the writ of mandamus requires the Board and Penney to demonstrate that they have “ ‘a clear legal right ... to the order sought’ ” and that there was “ ‘an imperative duty upon the respondent to perform.’ ” Ex parte Puccio, 923 So.2d 1069, 1072 (Ala.2005) (quoting Ex parte McInnis, 820 So.2d 795, 798 (Ala.2001)). We conclude that Umbach’s failure to perform this task for two and one-half months, without more, does not sufficiently demonstrate that they met that heavy burden. Under the facts of this case, the authorities relied upon by the Board and Penney are distinguishable. The Board and Penney fail clearly to demonstrate that they are entitled to a summary judgment; therefore, they fail to demonstrate that they are entitled to the writ of mandamus.

Conclusion

The Board and Penney have not clearly demonstrated that Umbach’s action was “commenced” outside the limitations period for a wrongful-death action provided in § 6-5-410(d), Ala.Code 1975. Therefore, we cannot conclude that the Board and Penney are clearly entitled to a summary judgment. Accordingly, we conclude that the Board and Penney are not entitled to a writ of mandamus.

PETITION DENIED.

NABERS, C.J., and HARWOOD, STUART, and BOLIN, JJ., concur.

      . The Board and Penney do not allege otherwise.

      . Section 6-5-410, Ala.Code 1975, provides, in part:
      "A personal representative may commence an action ... for the wrongful act, omission, or negligence of any person, persons, or corporation, his or their servants or agents, whereby the death of his testator or intestate was caused,....

      "(d) Such action must be commenced within two years from and after the death of the testator or intestate.”

      .Although the Board and Penney's motion is entitled "Defendants' Motion for Summary Judgment,” the trial court's order refers to the Board and Penney's summary-judgment motion as a "motion to dismiss.” The trial court also granted a motion to dismiss filed by Donald Walker and denied a motion to dismiss filed by the Alabama Board of Adjustment.

      . September 16, 1979, was a Sunday; therefore, the filing of the complaint on September 17, 1979, was timely. Ward, 391 So.2d at 1031.

      . See Rule 4(a)(1), Ala. R. Civ. P. (“Upon the filing of the complaint, ... the clerk shall forthwith issue the required summons or other process for service upon each defendant.”).

      . We note also that Rule 4(b), Ala. R. Civ. P., allows for service of process up to, and in some instances beyond, 120 days after the plaintiff filed its complaint. Rule 4, Ala. R. Civ. P., was amended, effective August 1, 2004, four days before Umbach filed his complaint, to add subdivision (b). Rule 4(b), Ala. R. Civ. P., provides:
      "If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative, after at least fourteen (14) days’ notice to the plaintiff, may dismiss the action without prejudice as to the defendant upon whom service was not made or direct that service be effected within a specified time; provided, however, that if the plaintiff shows good cause for the failure to serve the defendant, the court shall extend the time for service for an appropriate period. This subdivision does not apply to fictitious-party practice pursuant to Rule 9(h) or to service in a foreign country."
      The Board and Penney provide no argument as to what effect, and we do not address the effect, if any, the adoption of Rule 4(b), Ala. R. Civ. P., may have on the precedential value of Maxwell, Latham, Freer, and Ward.


source: Caselaw Access Project

author: LYONS, Justice. SEE, Justice

license: Public Domain

text:
    OCWEN LOAN SERVICING, LLC, as successor in interest to Ocwen Federal Bank, FSB v. Willie Mae WASHINGTON.
    1041631.
    Supreme Court of Alabama.
    March 17, 2006.

      John E. Goodman, Benjamin M. Mon-crief, and Brian M. Blythe of Bradley Ar-ant Rose & White, LLP, Birmingham, for appellant.
    R. Cooper Shattuck and Jane L. Cala-musa of Rosen, Cook, Sledge, Davis, Shat-tuck & Oldshue, P.A., Tuscaloosa, for ap-pellee.
   LYONS, Justice.

Ocwen Loan Servicing, LLC, as successor in interest to Ocwen Federal Bank, FSB (“Ocwen”), appeals from the trial court’s order denying its motion to compel arbitration. We affirm.

I. Facts and Procedural History

Willie Mae Washington owned her residence in Greensboro free and clear of any encumbrances. She contacted Malone-Gordon Mortgage and Investments, Inc. (“Malone-Gordon”), a mortgage broker in Tuscaloosa, in September 1998 based upon advertisements she had heard on the radio and sought a loan. Malone-Gordon secured a loan for Washington with Morcap, Inc., and she thereafter executed a promissory note in favor of Morcap secured by a mortgage on her residence in Greensboro. Washington says that shortly after the loan closing Morcap assigned, sold, or transferred her note to an entity that remains unknown to her. She says that Southern Pacific Funding initially serviced her loan, followed by Aurora Loan Services. Ocwen began servicing the loan in September 1999.

An arbitration agreement executed by Washington in connection with the loan transaction provided: “[Y]ou and we agree that any dispute, regardless of when it arose, shall be settled, at your option or ours, by arbitration in accordance with this Agreement.” “You” is defined as “the person named below,” i.e., Washington, and “we” or “us” is defined as Morcap, Inc., the lender. The agreement states: “Only disputes involving you and us may be addressed in the arbitration.” “Dispute” includes: “[A]ny claim, controversy, disagreement or lawsuit of any nature whatsoever arising out of or in any way related to the loan; the arranging of the loan; any application, inquiry or attempt to obtain the loan; the closing and funding of the loan; the terms of the loan; any loan documents; the servicing, collecting and enforcing of the loan; or any other aspect of the loan transaction.” The agreement further provides that it “shall also apply to any dispute with us or our corporate parents, affiliates, subsidiaries, agents, employees, officers, directors, successors and assigns.” The agreement further provides that either party can request that a dispute be submitted to arbitration, stating: “Either you or we can do this before a lawsuit (which is usually initiated by the filing of a ‘complaint’) has been served or within sixty (60) days after a complaint, an answer, a counterclaim or an amendment to a complaint has been served.” Exempted from arbitration are

“(1) any judicial or non-judicial foreclosure proceeding against the property that serves as collateral for the loan, whether by the exercise of any power of sale under any deed of trust, mortgage or other security agreement or instrument under applicable law, (2) any action by us to take possession of the property securing the loan, including repossession or unlawful detainer action, or any action to obtain a deficiency judgment against you and enforce same pursuant to applicable law, or (3) any action to obtain or transfer title to the property being foreclosed or to otherwise exercise our legal rights in the property or to dispose of the property determined pursuant to the terms of the instruments evidencing the loan and any security instrument relative thereto and/or pursuant to applicable law.”

Washington was advised in September 1999 to send payments on her loan to Ocwen. She says that Ocwen threatened her with foreclosure numerous times while it was servicing her loan. Washington received at least two letters from Ocwen notifying her that she was in default on the promissory note and that she had the right to bring a court action to assert the nonexistence of the default or to assert any other defenses to foreclosure and the acceleration of the note. Further, Ocwen’s attorneys sent Washington several letters stating that her note had been accelerated and that she had the right to assert in the foreclosure proceeding the nonexistence of a default or any other defense she had to the acceleration of the note and the foreclosure sale. Washington disputed the amounts Ocwen said she owed. Washington says that several times the foreclosure process proceeded to the point that Ocwen published notice of foreclosure in a newspaper published in Hale County.

Washington sued Ocwen, the attorneys representing Ocwen, and Malone-Gordon in the Hale Circuit Court on June 3, 2004, asserting a variety of claims relating to the propriety and disclosure of fees, penalties, and finance charges assessed and collected in originating and servicing her mortgage loan. Service was never perfected on Malone-Gordon, and Washington has dismissed her claims against the attorneys representing Ocwen; Ocwen is the only defendant remaining in the case. On September 27, 2004, Ocwen removed the action to the United States District Court for the Southern District of Alabama. Washington’s motion to remand was granted on January 19, 2005. On March 28, 2005, Ocwen filed a motion to compel arbitration, relying upon the arbitration agreement executed between Washington and Morcap. Washington opposed the motion to compel arbitration, contending that it did not apply to her claims because: (1) the agreement was not sufficiently broad to include her claims against Ocwen; (2) Ocwen had waived its right to arbitrate; (3) the origination and servicing of her mortgage loan did not involve interstate commerce; and (4) the agreement itself was unconscionable. The trial court denied Ocwen’s motion to compel arbitration, without explanation. Ocwen appealed. See Rule 4(d), Ala. R.App. P.

II. Standard of Review

“ ‘[T]he standard of review of a trial court’s ruling on a motion to compel arbitration at the instance of either party is a de novo determination of whether the trial judge erred on a factual or legal issue to the substantial prejudice of the party seeking review.’ ” Vann v. First Cmty. Credit Corp., 834 So.2d 751, 752-53 (Ala.2002) (quoting Ex parte Roberson, 749 So.2d 441, 446 (Ala.1999)). Accord, General Motors Corp. v. Stokes Chevrolet, Inc., 885 So.2d 119, 121 (Ala.2003).

III. Analysis

A. Applicability of the Arbitration Agreement

1. Effect of Ocwen’s status as an assignee of an assignee

Ocwen contends that it satisfied its burden of establishing that Washington’s claims against it are governed by an enforceable arbitration agreement. Washington responds by arguing that the references to the defined terms “you” and “we” in the arbitration agreement restrict the right to arbitrate only to disputes between Washington and Morcap. Washington thus contends that the arbitration agreement does not permit Ocwen to enforce its provisions. Washington argues in her brief that “[tjhere is no evidence before this Court, there was no evidence before the trial court, and Ocwen cannot show any evidence that it was an assignee of Morcap.” Yet on the same page of her brief Washington also states: “The servicing rights [under the promissory note] were transferred to Aurora Loan Services and then to Ocwen Federal Bank.” Washington thus concedes that Ocwen is an assignee of an assignee of Morcap.

As a general rule, an assignee stands in the shoes of the assignor and may enforce an arbitration agreement entered into between the assignor and another party. See Nissan Motor Acceptance Corp. v. Ross, 703 So.2d 324, 326 (Ala.1997), and authorities cited therein. Washington has not cited any authority, and we are aware of none, that supports the proposition that an assignee of an as-signee in a transaction such as this one, which specifically contemplates the existence of assignees, does not stand in the shoes of either the original assignee or, for that matter, the original assignor. We therefore conclude that Ocwen is entitled to assert the rights conferred upon Morcap under the arbitration agreement.

2. Effect of the exception for foreclosure proceedings

The arbitration agreement, as previously noted, provides that certain disputes are not subject to arbitration, including “any judicial or non-judicial foreclosure proceeding ... whether by the exercise of any power of sale ... under applicable law.” Ocwen contends in its principal brief that nothing in the foregoing language is inconsistent with “the parties’ shared right under the Arbitration Agreement to submit a dispute to arbitration ‘at your option or ours.’ ” Ocwen then concedes in that brief:

“Washington was free to bring a court action to assert a defense to foreclosure — not the case here — just as Ocwen or Plaintiff were [sic] free to claim their right to arbitration. There is nothing in the Agreement that states the right to bring a court action to assert a defense to foreclosure precludes either party from pursuing their own right to arbitration under the Agreement.”

(Emphasis in original.)

Washington responds by stating that the underlying action here is indeed a court action brought to assert a defense to foreclosure. Washington then quotes from her affidavit submitted in opposition to Ocwen’s motion to compel arbitration in which she stated that Ocwen threatened to foreclose, that she was afraid she would lose her house, and that everyone in Greensboro knew that her house was being foreclosed upon. As previously noted, Ocwen had commenced publication of its notice of foreclosure in the Greensboro newspaper before the commencement of this action. Washington then asserts that the evidence before the trial court was sufficient to authorize the conclusion that the present action was brought in response to the foreclosure proceedings being brought by Ocwen. Washington then states in her brief: “Ocwen did not and cannot produce any evidence to the contrary.”

Ocwen has conceded that Washington was entitled to “bring a court action to assert a defense to foreclosure,” which we take to be a correct interpretation of the arbitration agreement for purposes of this proceeding. In its reply brief, Ocwen failed to contradict Washington’s assertion that the action was brought “in response to foreclosure proceedings brought by Ocwen.” Yet, each of the 12 counts in Washington’s complaint seeks “compensatory and punitive damages, court costs, and such other and further relief as this court may deem just and proper.” We are obliged to apply the rule that “any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) (footnote omitted). Absent a claim specifically seeking an injunction against foreclosure, we decline to treat the complaint as falling within the foreclosure exception to arbitration provided for in the arbitration agreement. We therefore reject Washington’s attempt to avoid arbitration based upon the contractual exception applicable to foreclosure proceedings.

B. Issues Related, to Waiver

1. Who decides whether a party has ivaived the right to arbitrate — the court or the arbitrator?

Washington contends that Ocwen has waived its right to arbitration either by its conduct with reference to a provision in the agreement dealing with the time in which to make demand for arbitration or by its conduct during the course of the litigation. Ocwen contends that whether it has waived its right to arbitration is an issue to be resolved by the arbitrator and not the court.

In Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84-85, 123 S.Ct. 588,154 L.Ed.2d 491 (2002), the United States Supreme Court set forth the following rules that govern the allocation of functions between a court and an arbitrator:

“Thus, a gateway dispute about whether the parties are bound by a given arbitration clause raises a ‘question of arbitrability’ for a court to decide. See [First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943-46 (1995)] (holding that a court should decide whether the arbitration contract bound parties who did not sign the agreement); John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 546-547 (1964) (holding that a court should decide whether an arbitration agreement survived a corporate merger and bound the resulting corporation). Similarly, a disagreement about whether an arbitration clause in a concededly binding contract applies to a particular type of controversy is for the court. See, e.g., AT & T Technologies[, Inc. v. Communications Workers of America, 475 U.S. 643, 651-52 (1986)] (holding that a court should decide whether a labor-management layoff controversy falls within the arbitration clause of a collective-bargaining agreement); Atkinson v. Sinclair Refining Co., 370 U.S. 238, 241-243 (1962) (holding that a court should decide whether a clause providing for arbitration of various ‘grievances’ covers claims for damages for breach of a no-strike agreement).
“At the same time the Court has found the phrase ‘question of arbitrability’ not applicable in other kinds of general circumstance where parties would likely expect that an arbitrator would decide the gateway matter. Thus ‘ “procedural” questions which grow out of the dispute and bear on its final disposition’ are presumptively not for the judge, but for an arbitrator, to decide. John Wiley, supra, at 557 (holding that an arbitrator should decide whether the first two steps of a grievance procedure were completed, where these steps are prerequisites to arbitration). So, too, the presumption is that the arbitrator should decide ‘allegation^] of waiver, delay, or a like defense to arbitrability.’ Moses H. Cone Memorial Hospital [v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983)]. Indeed, the Revised Uniform Arbitration Act of 2000 (RUAA), seeking to ‘incorporate the holdings of the vast majority of state courts and the law that has developed under the [Federal Arbitration Act],’ states that an ‘arbitrator shall decide whether a condition precedent to arbitrability has been fulfilled.’ RUAA § 6(c), and comment 2, 7 U.L.A. 12-13 (Supp.2002). And the comments add that ‘in the absence of an agreement to the contrary, issues of substantive arbitrability ... are for a court to decide and issues of procedural arbitrability, i.e., whether prerequisites such as time limits, notice, laches, estoppel, and other conditions precedent to an obligation to arbitrate have been met, are for the arbitrators to decide.’ Id., § 6, comment 2, 7 U.L.A., at 13 (emphasis added).”

Before us in this proceeding are issues related to whether the agreement contemplates the arbitrability of claims against Ocwen, and, assuming that it does, whether some or all of the matters made the basis of this action are within the scope of the disputes required by the agreement to be arbitrated. We have previously resolved these issues adversely to Washington, i.e., we have held that Ocwen, as the assignee, is entitled to assert the rights conferred on Morcap, the original assignor, and that the matters made the basis of this action are in the scope of the disputes required to be arbitrated. In the absence of an agreement to the contrary, and we find none here, these matters relate to substantive arbitrability. In disposing of these issues, consistent with Howsam, we treated them as issues going to core issues as to the enforceability of the agreement and therefore appropriate for resolution by the court.

Issues dealing with Ocwen’s conduct during the course of the litigation, while arguably classifiable as “procedural arbitrability,” involve matters occurring in the judicial forum and are thus best suited for resolution by the court, as opposed to an arbitrator. In Marie v. Allied Home Mortgage Corp., 402 F.3d 1, 12-14 (1st Cir.2005), the United States Court of Appeals for the First Circuit, after noting a conflict within the circuits on this issue, gave the following highly persuasive analysis:

“We start our analysis of whether waiver by conduct in this context is a decision for the court or for the arbitrator by noting that textually under the [Federal Arbitration Act], a court is only permitted to stay a court action pending arbitration if ‘the applicant for the stay is not in default in proceeding with such arbitration.’ 9 U.S.C. § 3 (emphasis added [in Marie ]). A ‘default’ has generally been viewed by courts as including a ‘waiver.’ See, e.g., Patten Grading & Paving, Inc. v. Skanska USA Building, Inc., 380 F.3d 200, 204-05 (4th Cir.2004); Ivax Corp. v. B. Braun of Am., Inc., 286 F.3d 1309, 1316 n. 17 (11th Cir.2002); MicroStrategy, Inc. v. Lauricia, 268 F.3d 244, 249 (4th Cir.2001); County of Middlesex v. Gevyn Constr. Corp., 450 F.2d 53, 56 n. 2 (1st Cir.1971) (only waiver due to the pursuit of legal remedy inconsistent with arbitration is a ‘default’ under 9 U.S.C. § 3). This language would seem to place a statutory command on courts, in cases where a stay is sought, to decide the waiver issue themselves. It is true that the same language does not appear in section 4, the section dealing with attempts to compel arbitration, 9 U.S.C. § 4, but the Supreme Court has cautioned us to interpret sections 3 and 4 of the [Federal Arbitration Act] together. See Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403-04 (1967); see also Doctor’s Assocs., Inc. v. Distajo, 66 F.3d 438, 456-57 (2d Cir.1995). At any rate, Allied is moving for a stay of Marie’s lawsuit against it under section 3.
“Howsam also relies heavily on the Revised Uniform Arbitration Act of 2000 (‘RUAA’). The RUAA, in turn, as quoted by the Howsam Court, establishes that procedural issues are generally for the arbitrator and substantive issues generally for the court. See RUAA § 6, cmt. 2, 7 U.L.A. 14-15 (Supp.2004). Another comment in the same section of the RUAA treats waiver as an issue for the court: Waiver is one area where courts, rather than arbitrators, often make the decision as to enforceability of an arbitration clause.’- RUAA § 6, cmt. 5, 7 U.L.A. 16 (Supp.2004).
“As expressed in the commentary to the RUAA. and elsewhere, there are important policy reasons why a court and not an arbitrator should decide waiver issues, at least where the waiver — as has generally been true in our cases — is due to litigation-related activity. Where the alleged waiver arises out of conduct within the very same litigation in which the party attempts to compel arbitration or stay proceedings, then the district court has power to control the course of proceedings before it and to correct abuses of those proceedings. See Jones Motor Co. [v. Chauffeurs, Teamsters & Helpers Local Union, 671 F.2d 38, 43 (1st Cir.1982)]; Doctor’s Assocs., 66 F.3d at 456 & n. 12.
“Also, the comparative expertise considerations stressed in Howsam and Green Tree [Financial Corp. v. Bazzle, 539 U.S. 444 (2003)] argue for judges to decide this issue. See Howsam, 537 U.S. at 85; Green Tree, 539 U.S. at 452-53. Judges are well-trained to recognize abusive forum shopping. See Tristar [Financial Ins. Agency, Inc. v. Equicredit Corp. of America, 97 Fed.Appx. 462, 464 (5th Cir.2004)]; Bell v. Cendant Corp., 293 F.3d 563, 569 (2d Cir.2002); Jones Motor Co., 671 F.2d at 43. As well, the inquiry heavily implicates ‘judicial procedures,’ which Green Tree suggests should be an important factor in presuming that an issue is for the court. See Green Tree, 539 U.S. at 452-53 (emphasis added). Further, the procedural waiver issue is not likely to be intertwined with the merits of the dispute. See RUAA § 6 cmt. 5, 7 U.L.A. 16 (Supp.2004); see also [John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 557-58 (1964)]; Prima Paint Corp., 388 U.S. at 403-04.
“Finally, sending waiver claims to the arbitrator would be exceptionally inefficient. A waiver defense is raised by one party to a lawsuit in response to another party’s motion to compel arbitration or stay judicial proceedings on the basis of an arbitration agreement signed by the parties. If the arbitrator were to find that the defendant had waived its right to arbitrate, then the case would inevitably end up back before the district court with the plaintiff again pressing his claims. The case would have bounced back and forth between tribunals without making any progress. See 2 I.R. Macneil et ah, Federal Arbitration Law § 21.3 (1994); RUAA § 6 cmt. 5, 7 U.L.A. 16 (Supp.2004).
“This is different in kind from the arbitrator’s normal resolution of a gateway issue: normally, the resolution of such an issue would bar not only arbitration but any sort of litigation on the issues by either side. Thus, allowing courts to decide waiver issues — at least when due to litigation-related activity— furthers a key purpose of the [Federal Arbitration Act]: to permit speedy resolution of disputes. See, e.g., Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218-20 (1985); Moses H. Cone Mem’l Hosp., 460 U.S. at 22-23; see also Menorah Ins. Co. [v. INX Reinsurance Corp., 72 F.3d 218, 222 (1st Cir.1995)] (observing in context of international, non-FAA arbitration case that ‘[arbitration clauses were not meant to be another weapon in the arsenal for imposing delay and costs in the dispute resolution process’). Moreover, the Howsam and Green Tree rules exist partly ‘to avoid ... delay.’ Shaw’s Supermarkets, Inc. [v. United Food & Commercial Workers Union, 321 F.3d 251, 255 (1st Cir.2003)]. We hold that the Supreme Court in Howsam and Green Tree did not intend to dishtrb the traditional rule that waiver by conduct, at least where due to litigation-related activity, is presumptively an issue for the court.”

(Final emphasis added; footnote omitted.) We agree with the conclusion reached by the First Circuit Court of Appeals in Marie; we therefore hold that the issue whether a party has waived the right to arbitration by its conduct during litigation is a question for the court and not the arbitrator.

2. Did Ocwen’s litigation conduct constitute a waiver?

Washington contends that Ocwen’s conduct during the litigation before it filed its motion to compel arbitration constituted a waiver by Ocwen of its right to arbitrate. In order to show waiver by litigation-related conduct, the party opposing arbitration must demonstrate that the movant has substantially invoked the litigation process and thereby the opposing party would be substantially prejudiced if the case were submitted to arbitration. Companion Life Ins. Co. v. Whitesell Mfg., Inc., 670 So.2d 897, 899 (Ala.1995). In Moses H. Cone Memorial Hospital, supra, the United States Supreme Court recognized a strong federal policy favoring arbitration:

“The [Federal] Arbitration Act establishes that, as a matter of federal law, any doubts concerning the scope of arbi-trable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.”

460 U.S. at 24-25, 103 S.Ct. 927 (emphasis added; footnote omitted). In order to establish waiver, the party opposing arbitration bears a heavy burden, and waiver is not lightly to be inferred. Thompson v. Skipper Real Estate Co., 729 So.2d 287, 292 (Ala.1999), and cases cited therein. Before filing its motion to compel arbitration, Ocwen, on September 27, 2004, removed the action to the United States District Court for the Southern District of Alabama and filed an answer in that court at the time of removal. The answer did not assert Ocwen’s right to arbitration. Ocwen requested that the action be transferred to a pending multidistrict litigation in the United States District Court for the Northern District of Illinois. Ocwen thereafter filed in the federal court in Alabama a motion to stay the proceedings pending a decision from the Judicial Panel on Multidistrict Litigation. Washington filed an opposition to the motion for a stay. The Judicial Panel on Multidistrict Litigation then entered a conditional transfer order transferring the action to the federal court in Illinois. The transfer order provided that it would not become effective until it had been filed in that federal court and that the transmittal of the order would be stayed for 15 days from its entry, with the stay continued until further order of the panel if any party opposed the transfer. Washington filed in the federal court in Alabama a brief opposing the transfer and a motion to remand the action to the state court. Ocwen filed in the federal court in Alabama responses to Washington’s opposition to the motion to stay, opposition to the motion to transfer, and motion to remand. The federal court in Alabama initially denied Washington’s motion to remand. Washington then filed a motion to reconsider, which was granted, and the court entered an order remanding the action to the state court. However, on the day of the federal court’s order remanding the action to the state court, Ocwen obtained leave to file a brief in opposition to the motion to reconsider, thereby apparently suspending the operation of the remand order. Ocwen thereafter filed a response to Washington’s motion to reconsider, and Washington filed a reply to Ocwen’s response. The federal court in Alabama ultimately remanded the action to the state court on January 19, 2005, several days after its initial order granting Washington’s motion for reconsideration and remanding the action. Ocwen filed its motion to compel arbitration over two months later on March 23, 2005.

In Ex parte Hood, 712 So.2d 341 (Ala.1998), the defendant removed an action to the federal court. Four months later, while the action was still pending in the federal court, the defendant advised the plaintiff through correspondence that it was invoking its rights under an arbitration agreement. Shortly thereafter, in its answer to the complaint, the defendant asserted its right to arbitration. This Court stated:

‘We might assume that if Golden [the defendant] had immediately followed ... its removal with service of its an-siuer pleading an arbitration defense, such action would have been sufficient to put Hood [the plaintiff] on notice that Golden still intended in the federal court to reserve its right to seek arbitration. Cf. Terminix Int’l Co. v. Jackson, 669 So.2d 893, 896 (Ala.1995) (holding that the plaintiff did not establish a waiver where the defendant’s answer had put the plaintiff on notice of an arbitration defense). Filing an answer at such a time might have indicated that Golden intended to pursue arbitration instead of a federal judicial remedy, and it ivould have given Hood the opportunity to avoid spending the resources necessary to have the case remanded to the state court for a trial. As it was, Golden removed the case to the federal court and proceeded as if it was preparing for a judicial resolution of Hood’s claim.”

712 So.2d at 346 (emphasis added). The defendant in Hood also agreed to a discovery schedule to govern the litigation in the federal court and agreed to a date for trial. Ocwen, however, did not participate in a discovery plan while the proceeding was in the federal court and, upon remand, although Ocwen responded to Washington’s request for production, it did not initiate any discovery from Washington.

The dissenting opinion in Hood pointed out that the defendant there argued in its brief that “it removed the case to the federal court because federal courts look more favorably on arbitration agreements than do the courts of this state.” 712 So.2d at 347. Here, Ocwen advances no such reason for its removal of the action to the federal court. Ocwen counters the delay resulting from the foregoing events by pointing out that the litigation in the federal court was stayed for two months, that Ocwen was ignorant of its right to arbitrate, and that it should not be faulted for such ignorance because Washington failed to attach copies of her contract documents to her complaint. Of course, the stay was the result of a motion filed by Ocwen, not Washington, the purpose of which was to permit Ocwen to pursue its defense in a judicial forum in the federal court in Illinois.

Nothing in the record before us indicates that the proceedings in the United States District Court for the Northern District of Illinois, had they been allowed to go forward, would have been in an arbitral, rather than a judicial, forum. Indeed, to the contrary, 28 U.S.C. § 1407(a) provides that “civil actions involving one or more common questions of fact ... pending in different districts ... may be transferred to any district for coordinated or consolidated pretrial proceedings.” (Emphasis added.) A party to an arbitration agreement is not entitled to pretrial proceedings except to the extent that the phrase “pretrial proceedings” can be expansively read as embracing a motion to compel arbitration, somewhat of a contradiction in terms, because the word “pretrial” in the traditional sense contemplates steps in anticipation of a trial, an event not available in arbitration. Title 28, § 1407(a), further provides for remand to the transferor forum for an adjudication on the merits after the conclusion of the pretrial proceedings. Such forum shopping, absent any indication of an intent to pursue arbitration in the transferee forum, is not merely driven by a desire to secure a venue favorable to arbitration. Compare Thompson v. Skipper Real Estate Co., 729 So.2d at 292 (“Merely moving to transfer an action to the proper venue and propounding one set of interrogatories with that motion is not such substantial involvement in the litigation process as to constitute a waiver of the right to compel arbitration, unlike the removal of a state action to a Federal court and an attempt to litigate that action in that Federal forum.” (emphasis added)).

Ocwen, not Washington, bears the primary responsibility for familiarizing itself with its rights under an agreement to which it is an assignee. As previously noted, we are not moved by Ocwen’s criticism of Washington for her failure to attach a copy of the contract documents to the complaint. The record is devoid of any evidentiary basis for Ocwen’s failure to assert its right to arbitrate when it filed its answer in the federal court. For purposes of this proceeding, it must therefore be assumed that Ocwen learned of its right to arbitrate soon after the commencement of this action. Had Ocwen seasonably invoked its right to arbitrate when it served its answer in the federal proceeding in Alabama in September 2004, instead of waiting until March 2005, two months after the federal court remanded the case to the state court, it would have given Washington the option of avoiding the incurrence of the costs attendant to the various rounds of motions and briefs filed in connection with the remand of this proceeding to the state court for what Washington had the right to conclude would be a trial in a judicial, rather than an arbitral, forum. As was true in Hood, “[f]iling an answer [pleading an arbitration defense] at such a time [removal] might have indicated that [Ocwen] intended to pursue arbitration instead of a federal judicial remedy, and it would have given [Washington] the opportunity to avoid spending the resources necessary to have the case remanded to the state court for a trial.” 712 So.2d at 346. That Washington has been prejudiced by the necessity of expending resources in connection with the various rounds of motions and briefs in the federal courts in both Alabama and Illinois over a period of almost four months cannot realistically be disputed. Washington was misled into thinking that successful opposition to the federal proceedings would leave the resolution of her dispute in the state court.

But for Ocwen’s failure to involve itself in discovery for its benefit as did the defendant in Hood, the two cases would be virtually indistinguishable. Should this distinction make a difference? We think not, given the substantial activity in the federal court, during which Ocwen fought diligently to secure to itself a forum antithetical to arbitration, followed by its initial demand for arbitration only after its exhaustive efforts to avoid the state court had been unsuccessful. Indeed, Ocwen contended in support of its motion filed in the federal district court to stay proceedings in Alabama:

“[S]ince there is no reason this Court should waste its resources engaging in efforts that are more likely to be duplicated by the transferee court, a stay would promote judicial economy. A stay would also permit an orderly discovery process among all related actions thereby eliminating the possibility of duplica-tive discovery proceedings, and preventing the possibility of inconsistent rulings on pretrial summary judgment, class certification, and other motions. Finally, a stay would prevent Ocwen from being prejudiced by having to simultaneously litigate the same claims in different courts.”

We emphasize that Ocwen did not mention the prospect for demanding arbitration as part of the contemplated pretrial proceedings in this or any of the other cases Ocwen sought to have consolidated for federal multidistrict litigation. Ocwen’s statement quoted above, which was in the record before the trial court when it denied Ocwen’s motion to compel arbitration, unequivocally displays an intent on Ocwen’s part to litigate, not arbitrate, and distinguishes this case from the cases relied upon by the dissenting opinion as illustrative of instances in which arbitration has been ordered in cases involving multidistrict litigation pursuant to 28 U.S.C. § 1407. See note 3, supra.

We deem Ocwen’s efforts, especially in light of its pursuit of the nonarbitral forum of consolidated pretrial proceedings in multidistrict litigation, to constitute substantial invocation of the litigation process and thus a waiver of its right to arbitration.

TV. Conclusion

Based on our finding that Ocwen waived its right to arbitration by its conduct in this litigation, we affirm the trial court’s order denying arbitration. Because we are affirming the trial court’s order based on the waiver issue, we prétermit consideration of Washington’s defenses of uncon-scionability and waiver based upon the alleged untimeliness of Ocwen’s demand for arbitration under the terms of the agreement, including the threshold question of who decides the timeliness issue, the court or the arbitrator.

AFFIRMED.

NABERS, C.J., and HARWOOD, WOODALL, STUART, SMITH, BOLIN, and PARKER, JJ., concur.

SEE, J., concurs in part and dissents in part as to the rationale and dissents from the judgment.

SEE, Justice

(concurring in part and dissenting in part as to the rationale and dissenting from the judgment).

I concur in Part III.A. and Part III.B.l. of the main opinion, but I dissent from Part III.B.2. and therefore from the judgment.

As the main opinion notes, where there is doubt as to whether a party has waived its right to arbitration, that doubt should be resolved in favor of arbitration, and there is a “heavy burden” on the party asserting waiver. Because “arbitration is a matter of contract,” United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960), this Court applies ordinary state-law principles concerning contracts when construing the rights and defenses associated with an arbitration agreement. See AmSouth Bank v. Dees, 847 So.2d 923, 933 (Ala.2002). Washington argues — and the main opinion agrees— that Ocwen has waived its right to arbitration by pursuing the judicial process.

“Waiver is generally defined as the intentional relinquishment of a known right.” Bell v. Birmingham Broadcasting Co., 263 Ala. 355, 357, 82 So.2d 345, 347 (1955). Thus, “[wjhether a party’s participation in an action amounts to an enforceable waiver of its right to arbitrate depends on whether the participation bespeaks an intention to abandon the right in favor of the judicial process.... ” Companion Life Ins. Co. v. Whitesell Mfg., Inc., 670 So.2d 897, 899 (Ala.1995). In Bell, we noted:

‘While it is to be conceded that intent necessary to constitute waiver may be implied from the act of the party involved, the inquiry still is what was the intent of the party as manifested by his actions.”

263 Ala. at 357, 82 So.2d at 347.

“ ‘[T]o make out a case of implied waiver of a legal right, there must be a clear, unequivocal, and decisive act of the party showing such a purpose.’ ” Bell v. Birmingham Broad. Co., 266 Ala. 266, 269, 96 So.2d 263, 265 (1957) (quoting 56 Am.Jur. Waiver § 17, p. 18). Washington’s burden to show that Ocwen waived its right to arbitration is a heavy one. “ ‘[T]here is a presumption against a court’s finding that a party has waived the right to compel arbitration.’ ” Lee v. YES of Russellville, Inc., 784 So.2d 1022, 1028 (Ala.2000) (quoting Eastern Dredging & Constr., Inc. v. Parliament House, L.L.C., 698 So.2d 102, 103 (Ala.1997)). A party seeking to prove a waiver of a right to arbitrate carries a heavy burden, and the courts will not lightly infer a waiver of the right to arbitration. Lee, 784 So.2d at 1028-29 (citing Mutual Assurance, Inc. v. Wilson, 716 So.2d 1160 (Ala.1998)).

Washington relies on four actions by Ocwen to demonstrate that Ocwen has waived its right to arbitrate:

(1) the more-than-six-month delay between Washington’s filing of the action and Ocwen’s moving to compel arbitration;
(2) Ocwen’s removal of Washington’s action to the federal court;
(3) Ocwen’s decision to answer Washington’s complaint without asserting its right to arbitrate; and
(4) Ocwen’s request that Washington’s action be transferred to a federal court handling pending multidistrict litigation and its corresponding request that the federal district court in Alabama stay all proceedings pending the decision of the multidis-trict litigation panel.

This Court has previously deemed insufficient each of the first three actions Washington relies upon to demonstrate Ocwen’s intent to pursue the judicial process. First, we have previously held that a delay of more than one year is insufficient evidence of an intent to forgo the right to arbitration. See, e.g., Ex parte Merrill Lynch, Pierce, Fenner & Smith, Inc., 494 So.2d 1 (Ala.1986) (declining to find a waiver even though more than a year had elapsed between the filing of the complaint and the request for arbitration). Second, we have held that the removal of a state action to the federal court does not demonstrate an intent to waive the right to arbitrate. Merrill Lynch, 494 So.2d at 4. Finally, in Thompson v. Skipper Real Estate Co., 729 So.2d 287 (Ala.1999), we adopted the reasoning in Mutual Assurance, Inc. v. Washington, supra, that “ ““ “the service of an answer in an action on the contract does not constitute a waiver of the right to arbitration, even though the answer does not set up the arbitration clause as a defense.”””” 729 So.2d at 291 (quoting Companion Life Ins. Co. v. Whitesell Mfg., 670 So.2d at 899, quoting in turn other authorities).

Because each of the first three activities Washington relies upon to demonstrate waiver has previously been deemed insufficient-evidence of an intent to forgo arbitration, the conclusion that Ocwen has waived its right to arbitration hinges on the fourth activity, namely, Ocwen’s request that Washington’s action be transferred for consolidated pretrial proceedings to a federal court in Illinois where multidistrict -litigation under 28 U.S.C. § 1407 was pending.

The term “pretrial proceedings,” as used in 28 U.S.C. § 1407, gives a transferee court jurisdiction over all proceedings that occur before trial:

“[T]o determine the jurisdiction and power of the transferee court it is essential to define exactly what is encompassed by the words ‘pretrial proceedings.’ Interpreted literally, the transferee court appears to have control over all proceedings prior to trial.”

15 Charles Alan Wright, Arthur Miller & Edward Cooper, Federal Practice and Procediere: Jurisdiction 2d § 3866 (2d ed.1986) (footnote omitted). Thus, a transferee court has the authority to rule on all pretrial motions. In re Eli Lilly & Co., Prozac Prods. Liability Litigation, 789 F.Supp. 1448 (S.D.Ind.1992). A motion to compel arbitration is a pretrial motion; any hearing conducted on a motion to compel arbitration is a pretrial proceeding. Thus, the transferee court has the power to grant a request to compel arbitration as part of its general jurisdiction to decide all pretrial matters. Although a party that intends to arbitrate a dispute is not entitled to the full panoply of pretrial proceedings, and an effort to avail itself of many of those proceedings clearly is inconsistent with an intent to arbitrate, Ocwen was entitled to certain “pretrial proceedings.” Therefore, a request for multidistrict litigation is not necessarily inconsistent with an intent to arbitrate rather than to litigate. In fact, there are a number of cases in which a party has moved to compel arbitration after requesting that a case be consolidated with pending multidistrict litigation. See, e.g., In re Universal Serv. Fund Telephone Billing Practices Litig., 320 F.Supp.2d 1135 (D.Kan.2004); Ex parte Merrill Lynch, Pierce, Fenner, & Smith, Inc., 494 So.2d 1 (Ala.1986). The burden is on Washington to prove that Ocwen intended to litigate, and not on Ocwen to prove the absence of such an intent.

Although a request for a transfer to a forum where multidistrict litigation is pending is not necessarily an act inconsistent with the right to arbitrate, the main opinion notes: 939 So.2d at 17. Ocwen’s argument to the federal district court clearly implies that it was Ocwen’s intention to “litigate the same claims.” This is evidence indicating that Ocwen intended to litigate, and it makes this case a close one; nonetheless, I cannot agree that Washington met her heavy burden of demonstrating the “clear, unequivocal, and decisive act of the party showing such a purpose [to waive its right to arbitrate]” that is necessary to establish a waiver. I, therefore, respectfully dissent from Part III.B.2. of the main opinion and from the judgment.

“Indeed, Ocwen contended in support of its motion filed in the federal district court to stay proceedings in Alabama:
“ ‘[Sjince there is no reason this Court should waste its resources engaging in efforts that are more likely to be duplicated by the transferee court, a stay would promote judicial economy. A stay would also permit an orderly discovery process among all related actions thereby eliminating the possibility of duplicative discovery proceedings, and preventing the possibility of inconsistent rulings on pretrial summary judgment, class certification, and other motions. Finally, a stay would prevent Ocwen from being prejudiced by having to simultaneously litigate the same claims in different courts.’ ”

      . Washington stated in her response to Ocwen's motion to compel arbitration that she did not name Morcap as a defendant because it had filed for bankruptcy protection and her claims against Morcap have likely been discharged in bankruptcy.

      . Before this Court Washington does not challenge the applicability of the Federal Arbitration Act (9 U.S.C. § 1 et seq.).

      . The dissenting opinion observes that "a request for multidistrict litigation is not necessarily inconsistent with an intent to arbitrate rather than to litigate.” 939 So.2d at 20 (emphasis added). It uses two cases, neither of which is analogous to this proceeding, to illustrate this proposition. The first case is In re Universal Service Fund Telephone Billing Practices Litigation, 320 F.Supp.2d 1135 (D.Kan.2004), in which no argument was made in opposition to the motion to compel arbitration that the motion to transfer for consolidated pretrial proceedings evidenced any intent inconsistent with arbitration. For all that appears, nothing in the motion or supporting materials bespoke an intent to abandon any right to arbitrate. Moreover, the transferee court subsequently found a waiver of the right to arbitrate one aspect of the claim based on the delay in asserting the right to arbitrate. 320 F.Supp.2d at 1141. The second case cited is Ex parte Merrill Lynch, Pierce, Fenner & Smith, Inc., 494 So.2d 1 (Ala.1986), where federal multidis-trict litigation pursuant to 28 U.S.C. § 1407 was pending, yet the proceeding in the Alabama court in which arbitration was ordered was never a part of that proceeding. Because it appears that the state action was not removable, 28 U.S.C. § 1407 was not even applicable to the Alabama action. BancOhio Corp. v. Fox, 516 F.2d 29, 32 (6th Cir.1975) ("there is nothing in the applicable statute [28 U.S.C. § 1407] to provide an exception to the rules normally governing removal of cases from state courts”). The defendant in Merrill Lynch requested only that the Alabama action be stayed until the plaintiff decided whether she wished to participate in the federal class-action litigation or to opt out of that litigation and pursue her claim individually. Once the plaintiff opted out of the federal litigation, the defendant seasonably moved to compel arbitration. Neither case cited by the dissent involves conduct of the movant comparable to the conduct presented by the facts before us in this proceeding.

      . See, e.g., Walker v. J.C. Bradford & Co., 938 F.2d 575 (5th Cir.1991) (holding that J.C. Bradford & Co. did not waive its right to arbitration even though it removed the action to the federal court, answered without asserting its right to arbitration, and first sought arbitration 13 months after the complaint was filed). See also Ex parte Hood, 712 So.2d 341 (Ala.1998) (“In Exporte Merrill LynchL Pierce, Fenner & Smith, Inc., 494 So.2d 1 (Ala.1986)], this Court held that the defendants had not substantially invoked the litigation process and had therefore not waived the right to seek arbitration, despite the fact that the defendants had ... filed a motion to stay proceeding to await the outcome of pending federal multidistrict class action litigation.... ”).

      . "The statute authorizing transfer (and consolidation) of multidistrict actions, 28 U.S.C. § 1407, is a venue statute that allows the [Judicial Panel for Multidistrict Litigation] to override a plaintiff's choice of forum when three factors are present....” Pinney v. Nokia, Inc., 402 F.3d 430, 452 (4th Cir.2005). As the main opinion notes, " '[m]erely moving to transfer an action to the proper venue and propounding one set of interrogatories with that motion is not such substantial involvement in the litigation process as to constitute a waiver of the right to compel arbitration. ...' ” 939 So.2d at 16 (quoting Thompson v. Skipper Real Estate Co., 729 So.2d at 292).

      . I do not suggest that these cases are analogous to the case before us; I cite them only to illustrate the point that parties do go to a multidistrict-litigation forum and subsequently seek to arbitrate. See also, e.g., In re Prudential Insurance Co. of America Sales Practices Litigation, 924 F.Supp. 627 (D.N.J.1996), where it was argued that, even if Prudential had a right to arbitrate the defendants' claims against it, it waived that right when it moved for a transfer to a federal court hearing pending multidistrict litigation for pretrial proceedings. The federal district court denied Prudential’s motion to compel arbitration without addressing the waiver argument; however, the court noted that the "parties should rest assured ... that the Court has considered [it]." 924 F.Supp. at 634 n. 10. The United States Court of Appeals for the Third Circuit reversed the district court's denial of Prudential’s motion to compel arbitration, also without specifically addressing the issue of waiver, but presumably having rejected it. In re Prudential Ins. Co. of America Sales Practice Litig. All Agent Actions, 133 F.3d 225 (3d Cir.1998). See also Popovich v. McDonald’s Corp., 189 F.Supp.2d 772, 774 (N.D.Ill.2002), where McDonald’s moved to compel arbitration after moving for a transfer to a federal court hearing multidistrict litigation. The court did not address whether McDonald’s had waived the right to arbitrate by moving for a transfer; however, the court did hold that McDonald’s had not waived the right to arbitrate by moving for an injunction after having moved for a transfer and before having moved to arbitrate. The court ultimately denied the motion to compel arbitration filed by McDonald's, based on its finding that arbitration in that case was cost prohibitive. 189 F.Supp.2d 772.

      . I recognize that this language appears nowhere in the briefs of the parties and is not referenced by them; however, this Court can affirm a judgment of a trial court for any reason, Taylor v. Stevenson, 820 So.2d 810, 814 (Ala.2001), even where the ground upon which it affirms was not argued before the trial court or this Court. Ex parte CTB, Inc., 782 So.2d 188, 191 (Ala.2000).


author: HARWOOD, Justice.

text:
    CERTAIN UNDERWRITERS AT LLOYD’S, LONDON, and Certain London Market Insurance Companies v. SOUTHERN NATURAL GAS COMPANY.
    1041880.
    Supreme Court of Alabama.
    March 24, 2006.

      Richard W. Lewis, William K. Bradford, and Douglas H. Bryant of Austill, Lewis & Simms, P.C., Birmingham; Deborah Alley Smith of Christian & Small, LLP, Birmingham; and Jay Russell Sever of

      Phelps Dunbar, LLP, New Orleans, Louisiana, for appellants.
    Tony G. Miller of Maynard, Cooper & Gale, P.C., Birmingham; and Michael John Miguel of Morgan, Lewis & Boekius, LLP, Los Angeles, California, for appellee.
   HARWOOD, Justice.

Certain Underwriters at Lloyd’s, London, and Certain London Marketing Insurance Companies (collectively “the Insurers”) appeal from an order of the Jefferson Circuit Court, entered at the conclusion of a trial conducted from February 28 to March 10, 2005, and assessing damages against the Insurers in favor of the plaintiff, Southern Natural Gas Company (“So-nat”), for nearly $1 million. The Insurers have appealed that judgment but have also moved this Court for an expedited determination of appellate jurisdiction, contending that the order does not constitute a final judgment that can support an appeal. In particular, the Insurers assert that the order did not' completely dispose of any single “claim for relief’ and that, consequently, the trial court’s attempted certification of the “judgment” as final pursuant to Rule 54(b), Ala. R. Civ. P., was unavailing and should be vacated by this Court and the appeal dismissed. Based on our analysis set forth below, we agree.

Background

Sonat operates approximately 14,000 miles of pipeline in the southeastern United States for the purpose of transporting natural gas to markets in a seven-state area. As Sonat explains in the complaint it filed to institute the underlying litigation, its “integrated pipeline operations” include, among other operational features, numerous “compressor stations,” including 11 located in Alabama, and numerous “mercury-metering stations,” including 131 located in Alabama. The Insurers provide a balanced summary of the circumstances giving rise to the action in their principal brief to this Court:

“From 1957 to 1972, Sonat used a PCB-based[] synthetic lubricant at many of its compressor stations. Environmental testing performed by Sonat in 1989 revealed that 13 of its 38 compressor stations had PCB contamination. Sonat also allegedly sustained environmental damage to its property at 14,700 other sites, including 25 additional compressor stations; 650 mercury metering stations; 14,000 liquid removal points; five manufactured gas plants; and 20 offshore platforms. Sonat voluntarily undertook to remediate the contamination at its sites.
“In 1991 Sonat put [the Insurers] on notice that it had discovered contamination at 13 of its compressor stations and that it had taken action to contain and remediate the contamination. In November 1995, counsel for [the Insurers] sent Sonat a reservation of rights letter with respect to the claim made by Sonat. In 1996 Sonat advised [the Insurers] that the cleanup had been completed and that [the Insurers] should close their files on the claim.”

(The Insurers’ brief, pp. 6-7.)

In the action it subsequently filed against the Insurers, Sonat asserted that the Environmental Protection Agency, “other governmental agencies and departments and/or private parties,” including Alabama residents, “have brought or asserted lawsuits, claims, and demands against Sonat alleging property damage, personal injury, bodily injury, and other damages and causes of action, including, without limitation, nuisance, trespass, negligence and strict liability, allegedly as a result of Sonat’s operations and ownership” of the pipeline system. Sonat asserted that it had “paid substantial amounts under legal obligation for the remediation of damage in, at, and around the vicinity of compressor stations, and for mercury damage arising from mercury meters.” Sonat went on to explain that the contamination experienced at the compressor stations involved principally the presence of PCBs and the contamination at the mercury-metering stations involved principally “the presence of mercury in the ground water, surface water, air and general environment in, at, around, and in the vicinity of the mercury-metering stations.”

Sonat stated in its complaint that the Insurers had issued various policies of liability insurance, covering successive policy periods commencing on November 30, 1949, and concluding on December 1, 1987, which entitled Sonat to coverage “for all sums, including costs of investigation and defense and legal liabilities, arising out of environmental and tort actions.... ” In paragraph 32 of the complaint (captioned “Environmental and Tort Action Concerning Reform, Alabama[,] Compressor Station”), Sonat alleged:

“Claims, demands and suits have been asserted against Sonat concerning property damage and other damages arising out of Sonat’s operation of the Reform, Alabama!,] compressor station. The claimants in the environmental actions, allege, inter alia, damage and other injury based on purported damage including the presence of polychlorinated biphenyls and other substances of concern in the environment in, at, around, and in the vicinity of the Reform, Alabama!,] compressor station. Claimants seek damages for past and future response costs for alleged property damage which is continuous and progressive, beginning in or before 1949 and extending until at least 1986.. The monies spent and to be spent in response to demands of a governmental agency, or a private party are ‘damages’ under the Liability Insurance Policies.[] Alabama Plating Co. v. United States Fidelity and Guar. Co., 690 So.2d 331 (Ala.1996). As such, the Liability Insurance Policies respond to and are required to pay for all damage because of property damage, bodily injury or personal injury (or a combination thereof) which Sonat is or becomes legally obligated to pay as respects the Reform, Alabama!,] compressor station. Sonat has paid, and is likely to continue to become legally obligated to pay, damages arising from the Reform, Alabama!,] compressor station.”

By means of the next four paragraphs of its complaint, introduced by identical captions except for the name of the location of the compressor station, and making identical averments, Sonat made precisely parallel allegations concerning the compressor stations. located at Elmore, Gallion, McConnells, and Tarrant, Alabama.

Thereafter, Sonat undertook in its complaint to delineate five separately captioned claims for relief. The claims respectively asserted that although the Insurers were obligated to pay in full Sonat’s legal liabilities arising out of or in connection with the previously described “environmental and tort actions,” the Insurers had “failed, or threatened to fail, to fulfill, or acknowledge completely their insuring obligations to pay in full Sonat’s legal liabilities”; that there was an actual and justiciable controversy as to the Insurers’ obligations in that regard (first claim for relief); that the Insurers had breached their insuring obligations to Sonat and were obligated to pay Sonat “all direct, indirect, consequential, incidental, special, compensatory and other damages resulting from” the breaches of contract (second claim for relief); that the conduct of the Insurers effected a waiver of their right “to enforce any contractual obligation, limitation, exclusion, or other provisions running in [their] favor” and Sonat was entitled to a judicial declaration to that effect (third claim for relief); that the Insurers had breached their contracts of insurance by “disclosing confidences of Sonat and confidential settlement communications of Sonat in violation of their contractual duties to act with good faith and with reasonable care and prudence with regard to their insured,” thereby waiving the Insurers’ “ability to enforce any contractual obligation, limitation, exclusion, or other provision running in [their] favor,” entitling Sonat to a judicial declaration to that effect (fourth claim for relief); and that the conduct of the Insurers represented an anticipatory breach of contract entitling Sonat to recover damages (fifth claim for relief). In its concluding “prayer for relief,” Sonat demanded judgment by way of a judicial declaration that the Insurers were “obligated to pay or reimburse in full Sonat’s cost and expenses for investigation and defense of the environmental and tort actions and to pay or reimburse in full So-nat’s legal liabilities in connection with said environmental and tort actions” and to pay an award for “compensatory damages in an amount or amounts to be determined by the trier of fact at trial, and attorneys’ fees and costs.”

Eventually, the trial court entered two case-management orders pertinent to the jurisdictional issue before this Court. The first order provided:

“Considering'the number of sites at issue in this litigation and the complexity of the issues involved, it is necessary that the trial of this matter be conducted in phases, as follows:
“Trial Phase I: Trial Phase I shall involve the parties’ claims and defenses relative to the availability of insurance coverage for a subset of those sites listed in Exhibit ‘A’ (‘Phase I Sites’), as agreed to by the parties or ordered by the Court in the future.”

Exhibit A listed dozens of “compressor stations/PCBs” in Alabama, Georgia, Louisiana, and Mississippi, several hundred “meter and compressor stations/mercury” located in Florida, South Carolina, Alabama, Georgia, Louisiana, Texas, and Tennessee, and several dozen “offshore facilities.” The second case-management order explained that “[t]he initial trial phrase in this action shall focus on the claims and defenses related to the Tarrant, Alabama, and Reform, Alabama, locations,” those being two of the Alabama “compressor stations/PCBs” identified on Exhibit A to the first case-management order.

At the conclusion of the trial relating to those two sites, the jury responded to a set of 14 special interrogatories, identifying 9 separate policies as having been in existence and finding 1) that an “occurrence” had occurred under both definitions of that term in the two applicable insurance policies; 2) that notice to the Insurers of any occurrence was not late with respect to either the Tarrant or the Reform compressor station; 3) that Sonat had not waived its claim; 4) that “a single occurrence caused the property damage[ ] at Tarrant compressor station and Reform compressor station”; 5) that at both locations there was damage to property owned by third parties other than Sonat; 6) that the property damage at both stations began in 1957 and ended in 1988; 7) that the amounts paid by Sonat with respect to both compressor stations were paid because Sonat “was legally obligated to pay them as damages”; 8) that soil contamination at the two sites was not “expected or intended” by Sonat; 9) that the Insurers had breached the contracts, doing so on November 13, 1995; and 10) specifying the total amounts Sonat was entitled to recover “as a result of PCB contamination” at each site. Lastly, the jury declared that three specific policies were “excess of $50,000 in underlying insurance.”

The PCB contamination at the various compressor stations resulted from Sonat’s use throughout its system of the synthetic lubricant “Pydraul,” composed partly of PCBs. In moving the trial court for the entry of a judgment in response to the jury’s answers to the special interrogatories, Sonat asserted that its “damages were, in fact, caused by the systematic use of Pydraul, causing damages at the compressor stations, which constitutes a single occurrence.” The Insurers opposed the entry of a final judgment, arguing that the only authority for such a judgment would be Rule 54(b), Ala. R. Civ. P., but contending that the court could not certify its order under that rule because none of Sonat’s claims had been completely resolved. The first sentence of Rule 54(b) provides:

“When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.”

(Emphasis supplied.)

Rule 42(b), Ala. R. Civ. P., provides:

“The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues, always preserving inviolate the right of trial by jury as declared by Article 1, Section 11 of the Alabama Constitution of 1901.”

(Emphasis supplied.)

The Insurers argued to the trial court that instead of certifying its order under Rule 54(b), the court should certify appropriate issues for an interlocutory appeal pursuant to Rule 5, Ala. R.App. P. The Insurers committed that they could stipulate with Sonat the issues the court could certify for an interlocutory appeal taken pursuant to Rule 5. On June 17, 2005, the trial court entered its “judgment” in favor of Sonat against the Insurers for monetary damages and stating, with respect to the issue of Rule 54(b) certification, the following:

“Defendants contend that a partial final judgment is not appropriate. In Grantham v. Vanderzyl, 802 So.2d 1077 (Ala.2001), it was held that the trial court’s decision to dismiss claims for loss of income and fear of contracting a communicable disease were not properly certified as final. The order dismissing the claim on the tort of outrage was appealable.
“In Norfolk Southern Corp. v. California Union Ins. Co., 859 So.2d 167 (La.Ct.App.2003), an appeal was taken involving only alleged contamination sites in Louisiana although the petition alleged sites in other states.
“In this case the parties agreed to try the issues on the sites at Tarrant and Reform. All the issues on these sites were tried. Therefore, it appears that a final judgment on these claims is appropriate.
“The judgment is certified as final pursuant to Rule 54(b), there being no cause for delay and entry of judgment should be final.”

Analysis

It is clear that in this case the trial court did not order a “severance” of the claims relating to the Reform and Tar-rant compressor stations, pursuant to Rule 21, Ala. R.App. P. (“any claim against a party may be severed and proceeded with separately”), but rather simply ordered separate trials of those issues pursuant to Rule 42(b), Ala. R. Civ. P. See Key v. Robert M. Duke Ins. Agency, 340 So.2d 781 (Ala.1976).

“As this Court stated in Foster v. Greer & Sons, Inc., 446 So.2d 605, 610 (Ala.1984), ‘Rule 54(b) certifications should be granted only in exceptional cases and “should not be entered routinely or as a courtesy or accommodation to counsel.” Page v. Preisser, 585 F.2d 336, 339 (8th Cir.1978).’ The Committee comments to Rule 54 note:
“ ‘The rule provides that, in the absence of affirmative action by the judge, no decision is final until the entire case has been adjudicated. The one exception is that where the court has completely disposed of one of a number of claims, or one of multiple parties, and has made an express determination that there is no just reason for delay, the court may direct the entry of judgment on that claim or as to that party.’ (Emphasis added).
“Committee comments, Rule 54, [Ala. R. Civ. PJ
“The question before this Court is whether the partial summary judgment LSC received completely disposed of a claim so as to make that judgment final. Rule 54(b) does not authorize the entry of final judgment on part of a single claim. Tolson v. United States, 732 F.2d 998, 999 (D.C.Cir.1984). Neither federal nor state courts have been able to settle on a single test to determine when claims are separate or exactly what constitutes a claim. See, Tolson, 732 F.2d at 1001; Cates v. Bush, 293 Ala. 535, 307 So.2d 6 (1975). However, authorities have stated that ‘when plaintiff is suing to vindicate one legal right and alleges several elements of damage, only one claim is presented and subdivision (b) [of rule 54] does not apply.’ 10 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure: Civil 2d, § 2657, at 69-71 (1983); Landry v. G.B.A., 762 F.2d 462, 464 (5th Cir.1985).”

Precision American Corp. v. Leasing Serv. Corp., 505 So.2d 380, 381 (Ala.1987).

“The sine qua non of [Rule 54’s] applicability is the existence of multiple parties or claims. The rule confers appellate jurisdiction over an order of judgment only where the trial court ‘has completely disposed of one of a number of claims, or one of multiple parties.’ Rule 54(b), committee comments (emphasis added). In other words, the ‘trial court cannot confer appellate jurisdiction upon this court through directing entry of judgment under Rule 54(b) if the judgment is not otherwise “final.” ’ Robinson v. Computer Servicenters, Inc., 360 So.2d 299 (Ala.1978). ‘That a judgment is not final when the amount of damages has not been fixed by it is unquestionable.’ ‘Automatic’ Sprinkler Corp. of America v. B.F. Goodrich Co., 351 So.2d 555, 557 (Ala.1977); see also Moody v. State ex rel. Payne, 351 So.2d 547 (Ala.1977).”

Tanner v. Alabama Power Co., 617 So.2d 656, 656-57 (Ala.1993).

“[F]or a Rule 54(b) certification of finality to be effective, it must fully adjudicate at least one claim or fully dispose of the claims as they relate to at least one party.” Haynes v. Alfa Fin. Corp., 730 So.2d 178, 181 (Ala.1999).

“If an order does not completely dispose of or fully adjudicate at least one claim, a court’s Rule 54(b) certification of the order is not effective. See Haynes v. Alfa Fin. Corp., 730 So.2d 178 (Ala.1999). Damages are only one portion of a claim to vindicate a legal right, even though the damages claimed may consist of several elements. See id. at 181. An order is not final if it permits a party to return to court and prove more damages or if it leaves open the question of additional recovery. See Precision American Corp. v. Leasing Serv. Corp., 505 So.2d 380, 382 (Ala.1987).”

Grantham v. Vanderzyl, 802 So.2d 1077, 1080 (Ala.2001).

“To be sure, the trial court recited the formula for certification of a judgment pursuant to Rule 54(b), Ala. R. Civ. P. However, ‘[n]ot every order has the requisite element of finality that can trigger the operation of Rule 5k(b).’ Goldome Credit Corp. v. Player, 869 So.2d 1146, 1147 (Ala.Civ.App.2003) (emphasis added). A claim is not eligible for Rule 54(b) certification unless it has been completely resolved by the judgment. In that regard, it must be remembered that ‘[djamages are [an element] of a claim to vindicate a legal right.’ Grant-ham v. Vanderzyl, 802 So.2d 1077, 1080 (Ala.2001).
“ ‘Where the amount of damages is an issue, ... the recognized rule of law in Alabama is that no appeal will lie from a judgment which does not adjudicate that issue by ascertainment of the amount of those damages.’ Moody v. State ex rel. Payne, 351 So.2d 547, 551 (Ala.1977). ‘That a judgment is not final when the amount of damages has not been fixed by it is unquestionable.’ ‘Automatic’ Sprinkler Corp. of America v. B.F. Goodrich Co., 351 So.2d 555, 557 (Ala.1977) (recitation of the Rule 54(b) formula was ineffective to render appeal-able a judgment that resolved liability, but reserved the issue of damages for future resolution). ‘[T]he trial court cannot confer appellate jurisdiction upon this [C]ourt through directing entry of judgment under Rule 54(b) if the judgment is not otherwise “final.” ’ Robinson v. Computer Servicenters, Inc., 360 So.2d 299, 302 (Ala.1978). Thus, it is well-established that a claim for which damages are sought is insufficiently adjudicated for Rule 54(b) purposes until the element of damages is resolved; a judgment resolving only liability in an action seeking damages cannot be certified as final pursuant to Rule 54(b). Tanner v. Alabama Power Co., 617 So.2d 656 (Ala.1993).
“That this case suffers from this defect is self-evident. The trial court purported to certify for appellate review the default judgment of 35 counterclaims, 29 of which sought damages that are yet to be determined. Because the trial court’s order was ineffective to confer appellate jurisdiction over those counterclaims, the judgment, as it relates to the 29 counterclaims seeking damages, is nonfi-nal and nonreviewable at this time.” Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So.2d 354, 361-62 (Ala.2004).
The trial court’s reliance on Norfolk Southern Corp. v. California Union Insurance Co., 859 So.2d 167 (La.Ct.App.2003), was misplaced. For one thing, all of the “numerous environmental sites” involved in that case had “proceeded to trial either separately or in groups of sites located in the same state,” with the appeal before the Louisiana Court of Appeals dealing only with judgments concerning the sites in Louisiana. Norfolk Southern Corp., 859 So.2d at 172 n. 4. More importantly, as the Insurers point out in their reply brief, noting their participation as appellants in Norfolk Southern, the appeal was brought pursuant to a provision of the Louisiana Code of Civil Procedure allowing for a “suspension appeal,” a procedure foreign to the Alabama Rules of Civil Procedure and the Alabama Rules of Appellate Procedure. As the Insurers explain:
“In 1997, the Louisiana legislature adopted Article 1915 of the Louisiana Code of Civil Procedure. Article 1915 addresses the problem of partial judgments, or judgments on less than an entire claim or less than all parties in a multi-party litigation. Included in Article 1915 is an exclusive list of partial judgments that under Louisiana Law are immediately appealable partial final judgments. One such partial judgment is a judgment on an issue of liability where the liability issue has been tried separately by the court or when in a jury trial, the issue of liability has been tried before a jury and the issue of damages is to be tried before a different jury. Article 1915 allowed [the Insurers] to appeal the legal issues of its Lability for coverage to Norfolk Southern notwithstanding the fact that damages at other sites had not yet been determined.”

(The Insurers’ reply brief, pp. 9-10.)

In its oppositions to the summary-judgment motion the Insurers unsuccessfully filed, Sonat argued, in pertinent part:

“[The Insurers] may not ignore that [Sonat’s] pipeline operations, and the PCB remedial activities at its compressor stations, were unitary. It would be inappropriate to view either of the two trial sites individually as opposed to being a part of the unitary system or unitary cleanup....
“The fact that two of the thirteen compressor stations are identified for early trial is one of convenience for judicial administration, and neither an overt ■or tacit admission that [Sonat’s] compressor stations should be treated separately .... ”
“The fact that an initial trial is scheduled to focus on only two of the thirteen compressor stations where PCB-related damage [was] found does not somehow alter the unitary nature of [Sonat’s] operations, and does not magically transform the legal effect of such unitary operations — that the several losses constitute a single occurrence.... [Sonat] has always maintained, and still does today, that the operation of its unitary pipeline system constitutes a single occurrence under the [Insurers’] policies ....
“The policy language and facts of this claim dictate a single occurrence. The unitary nature of the pipeline operation, the single cause of the contamination, the unitary nature of the type and location of contamination at all of the stations and the unitary nature of the remediation support a single occurrence.”

As pleaded and presented by Sonat, and as consistently argued by it throughout this litigation, there exists a single claim, expressly predicated on an allegedly “single occurrence,” followed by a single denial of coverage by the Insurers, thereby entitling Sonat to obtain declaratory relief and to recover damages for breach of contract. With respect to the PCB contamination at its “integrated operations at compressor stations,” Sonat has expressly asserted that there was one continuous exposure over the course of the policy periods to the same PCBs emanating from the same synthetic lubricant. Sonat has emphasized throughout this litigation that it undertook a single project to investigate and remediate the damage it discovered throughout its integrated system of compressor stations. In short, Sonat has asserted the unitary nature of its pipeline operation, including the unitary nature of the type and location of contamination at all of the compressor stations and has expressly asserted in the trial court that its remedial activities at its compressor stations were likewise unitary.

Sonat’s action seeks to recover globally for a single occurrence. At the very least, and independent of the interrelationships among the course of events and resulting damage at various other locations along its pipeline system, Sonat’s claims for relief seek to “ ‘vindicate one legal right and allege[ ] several elements of damage’ ” with respect to claims for declaratory relief and damages relating to the PCB contamination at the Reform, Elmore, Gallion, McConnells, and Tarrant, Alabama, compressor stations. Precision American Corp., 505 So.2d at 381 (quoting 10 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure: Civil 2d, § 2657, at 69-71 (1983)).

Conclusion

Although disposing of the parties’ claims and defenses relative to the “availability of insurance coverage” for the Reform and Tarrant sites, the order entered by the trial court following the Phase I trial necessarily “leaves open the question of additional damages” with respect to the other three compressor stations. Accordingly, we need not decide whether there is simply one claim for relief asserted in Sonat’s complaint, or whether recognition for some separate claims could be justified, as for example, with respect to mercury contamination at mercury-metering stations as opposed to PCB contamination at compressor stations. All that is necessary to resolve the jurisdictional issue at this stage is that we are clear to the fact that, at a minimum, the identically phrased assertions relating to the events, and resulting damage, at the five compressor stations represents a single claim for relief and that the trial court has not completely disposed of that claim for relief.

Therefore, we are compelled to dismiss this appeal as being from a nonfinal order.

APPEAL DISMISSED.

NABERS, C.J., and SEE, LYONS, WOODALL, STUART, SMITH, BOLIN, and PARKER, JJ., concur.

      . "PCB” is an acronym for polychlorinated biphenyl.

      . The "Liability Insurance Policies” referred to in the complaint are those “Known Primary, Umbrella and Excess General Liability Insurance Policies Issued to [Sonat,] by Certain Underwriters at Lloyd's” listed in Appendix 1 to Sonat’s complaint. The policies there listed cover the period from November 30, 1949, to December 1, 1987.

      . On January 7, 2005, Sonat filed two documents in opposition to the Insurers' summary-judgment motion; one was entitled "Opposition to Motion for Summary Judgment Regarding Owned Property,” and one was entitled "Opposition to Defendants' Motion for Summary Judgment Regarding Number of Occurrences.” The quoted material is taken from both documents.