text:
    ALABAMA ELECTRIC COOPERATIVE, INC., et al. v. BAILEY’S CONSTRUCTION COMPANY, INC.
    1050433.
    Supreme Court of Alabama.
    July 28, 2006.

      Ronald G. Davenport and R. Austin Huf-faker, Jr., of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellants.
    E.L. McCafferty III and Clay A. Lan-ham of Vickers, Riis, Murray & Curran, L.L.C., Mobile, for appellee.
   LYONS, Justice.

Alabama Electric Cooperative, Inc. (“AEC”), and its insurers — Wausau Insurance Company and Aegis Insurance Services, Inc. — appeal from a summary judgment in favor of Bailey’s Construction Company, Inc. (“Bailey”). We affirm.

I. Facts and Procedural History

On March 2, 2000, AEC and Bailey entered into a written contract whereby Bailey agreed to remove ash and sludge from one of AEC’s holding ponds. The terms of the contract specifically required Bailey to provide evidence to AEC that Bailey had procured liability insurance to cover the removal procedure. According to AEC, Bailey agreed to have AEC named as an additional insured on the liability insurance policy Bailey secured, but the contract itself does not contain that requirement. AEC points out that, on two occasions during the approximately two years before AEC and Bailey entered into the holding-pond contract, AEC had requested through letters to Bailey that, because Bailey was performing work for AEC, Bailey provide AEC evidence showing that AEC had been named as an additional insured on Bailey’s then existing insurance policies. According to AEC, Bailey forwarded those requests to Bailey’s insurance agent, International Assurance, Inc., who, according to AEC, sent certificates of insurance to AEC that listed AEC as an additional insured on the policies represented by those certificates. The parties refer to International Assurance as an independent broker. According to AEC, the representations on the certificates that AEC was an additional insured were false, because AEC had never actually been added as an additional insured on the policies by an endorsement to that effect.

On October 30, 2000, Willene McLoed, an independent contractor working for Bailey, was killed on AEC’s premises while working on the holding-pond project. The executor of McLoed’s estate filed a wrongful-death action against AEC. AEC contacted International Assurance and requested that it provide AEC with a certificate of insurance showing AEC as an additional insured on Bailey’s then existing liability policy; QBE Insurance Company was the underwriter of the policy in effect at the time. It was subsequently determined that AEC was not an additional insured on Bailey’s insurance policy with QBE. Nevertheless, according to Bailey, in response to AEC’s request, International Assurance added AEC as an additional insured on a certificate of insurance without authorization from Bailey or QBE. International Assurance sent that certificate to AEC.

AEC demanded that Bailey and QBE defend and indemnify AEC in the wrongful-death action resulting from McLoed’s death. Initially, QBE represented to AEC that it would defend and indemnify AEC, because AEC was listed as an additional insured on the certificate of insurance. Later, however, QBE refused to defend and indemnify AEC on the ground that AEC was never actually added to the policy as an additional insured by an endorsement to that effect.

AEC and its own insurers settled the wrongful-death action without contribution from Bailey or QBE. Subsequently, AEC and its insurers sued Bailey, QBE, and International Assurance. Bailey moved for a summary judgment on all claims against it, which the trial court granted; it certified the summary judgment as final pursuant to Rule 54(b), Ala. R. Civ. P. AEC and its insurers appealed. The only claims at issue in this appeal are AEC and its insurers’ claims against Bailey.

II. Standard of Review

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

“A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmoving party must present ‘substantial evidence’ creating a genuine issue of material fact — ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ Ala.Code 1975, § 12-21-12; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).”

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

III. Analysis

Against Bailey, AEC and its insurers alleged misrepresentation, breach of contract, negligence, and wantonness.

A. Misrepresentation

AEC and its insurers contend that they presented substantial evidence indicating that Bailey falsely represented to AEC that AEC was named as an additional insured on Bailey’s insurance policies and that those misrepresentations induced AEC to enter into the holding-pond contract. AEC and its insurers contend that the misrepresentations were contained in the certificates of insurance sent to AEC by International Assurance, indicating that AEC was an additional insured on Bailey’s then existing insurance policies.

“An insurance broker, like other brokers, is primarily the agent of the person who first employs him, and, in the absence of a statute to the contrary, he is the agent of insured as to all matters within the scope of his employment.” 44 C.J.S. Insurance § 181 (1993). Bailey argues that, even assuming that Bailey can be held liable for the misrepresentations of International Assurance, AEC and its insurers have not presented substantial evidence indicating that AEC reasonably relied on those misrepresentations in awarding Bailey the holding-pond contract. Reasonable reliance is an essential element of a misrepresentation claim. See Foremost Ins. Co. v. Parham, 693 So.2d 409, 421 (Ala.1997).

In support of their misrepresentation claim, ABC and its insurers rely on two specific certificates of insurance sent by International Assurance to AEC, before AEC awarded Bailey the holding-pond contract, indicating that AEC was an additional insured on Bailey’s then existing policies. Bailey points out that both certificates carried the following statement:

“THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.”

(Capitalization in original.) Further, while the reverse side of the first certificate of insurance relied upon by AEC and its insurers does not appear in the record, the reverse side of the second certificate, dated June 2,1999, does. It states:

“IMPORTANT
“If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsements).
“If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorse-mentís).
“DISCLAIMER
“The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon.” (Capitalization in original.)

In TIG Insurance Co. v. Sedgwick James of Washington, 184 F.Supp.2d 591 (S.D.Texas 2001), the client of a vendor and the client’s own insurer sued an insurance broker, alleging that the broker had misrepresented on an insurance certificate that the client was an additional insured on the vendor’s insurance policy. The United States District Court for the Southern District of Texas held as a matter of law that the client could not have reasonably relied on the insurance certificate:

“In order to prevail on a claim of negligent or fraudulent misrepresentation, a plaintiff must show that he reasonably relied upon the defendant’s false representations. See American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 436 (Tex.1997) (fraud and negligent misrepresentation claims require reasonable reliance by the plaintiff). Plaintiffs in the instant case have not shown through the probative evidence that they reasonably relied upon the representation of additional insured status on the certificate of insurance.
“ ‘A claim for misrepresentation can not stand when the party asserting the claim is legally charged with knowledge of the true facts.’ Shindler v. Mid-Continent Life Ins. Co., 768 S.W.2d 331, 334 (TexApp.-Houston [14th Dist.] 1989, n.w.h.) (citing Sutton v. Grogan Supply Co., 477 S.W.2d 930, 935 (Tex.App.-Tex-arkana 1972, no writ)). An insured has a duty to read the insurance policy and is charged with knowledge of its provisions. Ruiz v. Government Employees Ins. Co., 4 S.W.3d 838, 841 (Tex.App.-El Paso 1999, n.w.h.); Pankow v. Colonial Life Ins., 932 S.W.2d 271, 277 (Tex.App.-Amarillo 1996, writ denied); Amarco Petroleum, Inc. v. Texas Pacific Indemnity Co., 889 S.W.2d 695, 699-700 (Tex.App.-Houston [14th Dist.] 1994, writ denied). Under Texas law, an insurance agent generally has no duty to explain policy terms to an insured. Ruiz, 4 S.W.3d at 841.
“The Court concludes that [the client], claiming to be an additional ‘insured’ under [the policy], should be held to the same obligation as a named insured to review a policy of insurance on which it seeks to rely, and its reliance solely on the agent’s certificate of insurance is not reasonable under the circumstances presented by the admissible evidence. While the cited cases do not involve additional insureds, there is no admissible evidence to suggest that [the client], had it made the request, would have been unable to obtain and read the insurance policy in issue....
“Moreover, [the client], the holder of a certificate of insurance, was warned it was not entitled to rely on the certificate itself for coverage. The certificate stated to the holder that the certificate did not create coverage. See Granite[ Constr. Co. v. Bituminous Ins. Cos.], 832 S.W.2d [427,] 429 [(Tex.Ct.App.1992)].... The certificate of insurance issued by [the insurance broker] prominently stated that it was ‘issued as a matter of information only’ and did not ‘amend, extend or alter’ coverage provided by the listed policies. Had Plaintiffs taken the reasonable step of obtaining a copy of [the policy] ... Plaintiffs would have learned there was no additional insured coverage in the policy at all.
“Thus, the Court finds that Plaintiffs’ reliance upon [the insurance broker’s] representation of [the client’s] additional insured status was not reasonable. Accordingly, as a matter of law, Plaintiffs’ claims for negligent and fraudulent misrepresentation fail.”

184 F.Supp.2d at 603-04 (footnotes omitted). See also 17 Lee R. Russ & Thomas F. Segalla, Couch on Insurance § 242:33 (3d ed. 1997) (“Where an entity requires another to procure insurance naming it an additional insured, that party should not rely on a mere certificate of insurance, but should insist on a copy of the policy. A certificate of insurance is not part of the policy — if it states that there is coverage but the policy does not, the policy controls.”); Richard H. Glucksman & Glenn T. Barger, Additional Insured Endorsements: Their Vital Importance in Construction Defect Litigation, 21 Construction Law. 30, 33 (Winter 2001) (“A developer or general contractor generally should demand more proof [than just a certificate of insurance], including a specific additional insured endorsement, to confirm their additional insured status.”).

We find the above-cited authority persuasive. AEC and its insurers attempt to distinguish TIG Insurance Co. by arguing that, in TIG Insurance Co., the court noted that there was no evidence indicating that, had the plaintiff in that case attempted to review the actual insurance policy, it could not have done so. Here, according to AEC and its insurers, there is evidence indicating that AEC would have been unable to obtain access to the insurance policies on which it thought it was an additional insured. AEC and its insurers contend that the deposition testimony of Andrea Mills, International Assurance’s agent, shows that International Assurance would not have given AEC a copy of Bailey’s policy because, according to Mills, “it’s none of [AEC’s] business.” Mills testified as follows:

“Q: So, in 1998, from the information in International Assurance’s file, AEC was sent a Certificate of Insurance; it was not sent a policy so far as you can tell; is that correct?
“A: That is correct. Yes.
“Q: Should it have been sent a policy?
“A: No, sir.
“Q: Would it be unusual for an additional insured to receive anything other than the certificate?
“A: Yes, it would be unusual.
“Q: I take it that would not be done unless they specifically asked for it?
“A: Yes. And it would happen with a lot of kicking and screaming done on my behalf.
“Q: And why is that?
“A: Because it’s none of their business.
“Q: Correct me if I’m wrong. An additional insured, you’re giving them— They’ve asked to be an additional insured. International Assurance is giving them evidence they’re an additional insured. But the specifics of the policy and the coverage and the premium—
“A: Exactly.
“Q: —that’s Bailey’s business?
“A: That is correct.
“Q: And without Bailey’s consenting to it, you would be—
“A: Never.
“Q: —you would not give that information out?
“A: That is correct. Never.
“Q. Because they may not want AEC to know how much they’re paying for insurance?
“A: Right.”

However, AEC and its insurers do not contend that AEC actually attempted to obtain a copy of the policies or the additional-insured endorsements that would have existed had AEC been named as an additional insured on the policies. Further, AEC and its insurers do not point to any testimony of the insurers underwriting the policies indicating that those insurers would have refused AEC access to the policies or to the additional-insured endorsements. Finally, AEC and its insurers do not point to any testimony from Bailey indicating that it would have refused to consent to AEC’s reviewing the policy. Based on the facts of this case, we hold that AEC and its insurers have not presented substantial evidence indicating that it was reasonable for AEC to rely on the certificates of insurance indicating that it was an additional insured in awarding Bailey the holding-pond contract. While AEC and its insurers contend that International Assurance was Bailey’s agent, AEC and its insurers have not argued before this Court that International Assurance was also the agent of the insurer. The trial court did not err in entering a summary judgment for Bailey on the misrepresentation claim.

B. Breach of Contract

AEC and its insurers contend that AEC offered to “do business” with Bailey if Bailey would maintain insurance naming AEC as an additional insured while it “did business” with AEC and that Bailey accepted that offer by requesting International Assurance to obtain insur-anee naming AEC as an additional insured. The written holding-pond contract between AEC and Bailey contained a provision requiring Bailey to furnish evidence indicating that Bailey itself was insured before commencing work under the contract:

“12 INSURANCE: If this contract covers the performance of labor for AEC, Contractor [Bailey] will prior to commencement of performance, furnish evidence that Contractor has insurance coverage in at least the following amounts: a) Worker’s Compensation Statutory limits for State(s) in which work is to be performed, including Longshoreman’s coverage if applicable.
“b) Comprehensive General Liability, including Contractual Liability, Completed Operational/Products, Broad Form Property Damage, and Contractor’s Protective Liability, if subcontractors are used. Minimum limits Personal Injury, including death and Property Damage, $1,000,000 each occurrence, and $1,000,000 aggregate.
“c) Automobile Liability including Owned, Non-owned and Hired vehicles. Minimum limits — Bodily injury $1,000,000 each person, $1,000,000 each occurrence, and Property Damage $1,000,000 each occurrence.
“Said Certificate must set forth the name of insurer, policy number, expiration date, limits of liability and at least (10) days written notice to AEC of cancellation.
“Contractor shall perform the work as an independent contractor with exclusive control of the manner and means of performing the work, subject only to Owner’s right to inspect and oversee the work to assure that it is performed in accordance with the specifications and other requirements of the Contract.”

AEC and its insurers do not dispute that the holding-pond contract does not require Bailey to have AEC named as an additional insured on its insurance policies.

“The parol evidence rule provides that, absent some evidence of fraud, mistake, or illegality, a party to an unambiguous written contract cannot offer parol, or extrinsic, evidence of prior or contemporaneous oral agreements to change, alter, or contradict the terms of the contract. Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988); Colafrancesco v. Crown Pontiac-GMC, Inc., 485 So.2d 1131,1132-33 (Ala.1986).”

Environmental Sys., Inc. v. Rexham Corp., 624 So.2d 1379, 1381 (Ala.1993). “The [parol evidence] rule provides, generally, that when the parties reduce a contract to writing, intended to be a complete contract regarding the subject covered by that contract, no extrinsic evidence of prior or contemporaneous agreements will be admissible to change, alter or contradict such writing.” Colafrancesco v. Crown Pontiac-GMC, Inc., 485 So.2d 1131, 1133 (Ala.1986). The holding-pond contract contains a merger clause stating: “NO CONTRACT SHALL EXIST EXCEPT AS HEREIN PROVIDED.” (Capitalization in original.) Clearly, the parties intended that the writing be the complete contract on the subject matter it covered.

AEC and its insurers argue that they are not attempting to alter the terms of the written holding-pond contract with evidence of a prior or contemporaneous oral agreement, and they do not argue that the parties did not intend the written contract to be fully integrated. Rather, according to AEC and its insurers, Bailey’s oral agreement to maintain insurance naming AEC as an additional insured while “doing business” with AEC was part of a contract separate from the written holding-pond contract. Specifically, AEC and its insurers’ argument with respect to the merger clause in the written holding-pond contract is that “[a]n integration/merger clause does not bar or invalidate a previous or contemporaneous contract if the agreement is not inconsistent with the integrated contract and is made for separate consideration.” (Brief of AEC and its insurers at 42 (citing Restatement of Contracts § 240 (1932)).

In Hartford Fire Insurance Co. v. Shapiro, 270 Ala. 149, 117 So.2d 348 (1960), this Court said:

“ ‘When a written instrument shows that it contains the obligation of both parties to it, that alone is evidence of the terms of the contract. It is only when the instrument shows that it does not contain all the terms of the contract as to both parties to it that evidence may be offered to show further stipulation than those expressed, unless it is proposed to prove an engagement independent of and collateral to the matters embraced in such written instrument...(Emphasis supplied [in Hartford].)

“The question presented here is whether or not the oral contract is sufficiently separate and distinct from the written one as to bring it within the exception stated.

“Various courts have evolved tests to determine this separateness. Alabama has not been presented with the precise question, but has stated that the oral agreement may be considered collateral, even though the subject matter of the two contracts is the same. 'Alabama Power Company v. Pierre, 236 Ala. 521, 183 So. 665 [(1938)].

“The majority of American courts presented with this problem agree that:

“ ‘... (5) the test as to whether the alleged parol agreement is sufficiently distinct and separate so that the par-ol-evidence rule does not preclude its proof is primarily whether the parties intended the written contract to cover all of the matters embraced in their prior or contemporaneous negotiations, including that part omitted from the writing; (6) in determining this intent, the court should consider the “closeness” of the alleged parol agreement to the writing, the surrounding circumstances as well as the written contract itself, and what parties ordinarily might be expected to do under those circumstances as to inclusion of particular matters in the writing....’ 70 A.L.R. 770.

“In a leading case, Mitch[i]ll v. Lath, 247 N.Y. 377, 160 N.E. 646, 647, 68 A.L.R. 239, reargument denied 248 N.Y. 526, 162 N.E. 511 [(1928)], Justice Andrews said:

“ ‘... Under our decisions before such an oral agreement as the present is received to vary the written contract, at least three conditions must exist: (1) The agreement must in form be a collateral one; (2) it must not contradict express or implied provisions of the written contract; (3) it must be one that parties would not ordinarily be expected to embody in the writing,.... ’

“Gianni v. R. Russel & Co., Inc., 281 Pa. 320, 126 A. 791, 792 [(1924)], reaches the following solution:

“ ‘... This can be answered by comparing the two, and determining whether parties, situated as were the ones to the contract, would naturally and normally include the one in the other if it were made. If they relate to the same subject-matter, and are so interrelated that both would be executed at the same time and in the same contract, the scope of the subsidiary agreement must be taken to be covered by the writing. This question must be determined by the court.’

“Professor Wigmore, in IX Wigmore on Evidence, 3rd Ed. 98, § 2430, analyzes the problem as follows:

“ ‘(2) This intent must be sought where always intent must be sought ..., namely, in the conduct and language of the parties and the surrounding circumstances. The document alone will not suffice. What it was intended to cover cannot be known till we know what there was to cover. The question being whether certain subjects of negotiation were intended to be covered, we must compare the writing and the negotiations before we can determine whether they were in fact covered.’ ”

270 Ala. at 153-54, 117 So.2d at 352-53. According to E. Allan Farnsworth, Contracts § 7.3 (3d ed.1999):

“In Mitchill v. Lath, [160 N.E. 646, 647, 247 N.Y. 377, 381-82 (1928),] the leading collateral agreement case, a purchaser of land under a written contract attempted to show a prior agreement by the vendor to remove an unsightly ice house from a nearby tract. The New York Court of Appeals held that the parol evidence rule precluded such a showing because
“ ‘an inspection of this contract shows a full and complete agreement, setting forth in detail the obligations of each party. On reading it, one would conclude that the reciprocal obligations of the parties were fully detailed.... Were such an agreement [as to the ice house] made it would seem most natural that the inquirer should find it in the contract.’ ”

(Footnote omitted.) See also Environmental Sys., Inc., 624 So.2d at 1381 (“[0]ne who seeks, in a breach of contract action, to enforce an oral representation or promise relating to the subject matter of the contract cannot succeed, because of the parol evidence rule.”).

As noted, the written contract between AEC and Bailey contained a provision dealing with Bailey’s obligation to obtain insurance, but did not require Bailey to name AEC as an additional insured on that insurance. In light of the fact that the written contract dealt expressly with the subject matter of the alleged collateral oral agreement, i.e., Bailey’s alleged promise to maintain a certain type of insurance while it “did business” with AEC, we hold that the alleged collateral oral agreement was one the parties would naturally have included in the written agreement. Because the written agreement stated that it was the only agreement between the parties, we hold as a matter of law that no agreement existed requiring Bailey to maintain insurance on which AEC was named as an additional insured during work on the holding-pond contract. See Farnsworth, § 7.2 (“The most satisfactory basis of the [parol evidence] rule is that suggested by Corbin: ‘Any contract ... can be discharged or modified by subsequent agreement of the parties.... If the foregoing is true of antecedent contracts that were once legally operative and enforceable, it is equally true of preliminary negotiations that were not themselves mutually agreed upon or enforceable at law. The new agreement is not a discharging contract, since there were no legal relations to be discharged; but the legal relations of the parties are now governed by the terms of the new agreement.’ Viewed in this way, the [parol evidence] rule simply affirms the primacy of a subsequent agreement over prior negotiations and even over prior agreements.” (Footnote omitted.)). Thus the trial court did not err in entering a summary judgment for Bailey on the breach-of-contract claim.

C. Negligence and Wantonness

AEC and its insurers allege that Bailey had a duty to have AEC named as an additional insured on the policy in effect at the time of the accident, that Bailey negligently and wantonly breached that duty, and that AEC and its insurers were damaged by Bailey’s breach. Bailey, on the other hand, argues that it had no duty to have AEC named as an additional insured.

AEC and its insurers contend that Bailey voluntarily assumed a duty to maintain insurance naming AEC as an additional insured. We have already determined that the final expression of the parties’ intent with respect to Bailey’s insurance responsibilities for the holding-pond project was represented in the written contract, which did not require Bailey to have AEC named as an additional insured on the insurance policies relating to that project. Therefore, once Bailey entered into the written contract, it had abandoned any duty it might have voluntarily assumed up to that point.

AEC and its insurers do not specifically allege that, after the parties entered into the written holding-pond contract, Bailey again assumed a duty to have AEC named as an additional insured on the insurance policies relating to the project. AEC and its insurers contend that “[Bailey’s] actions in instructing International Assurance to name AEC as an additional insured are sufficient evidence to demonstrate that [Bailey] assumed ... a duty” to have AEC named as an additional insured whenever Bailey did business with AEC. (Brief of AEC and its insurers at 26.) AEC and its insurers do not, however, explain in their brief exactly what “actions in instructing International Assurance” they are referring to. Looking to the remainder of their brief, we can discern from the statement of facts and from their misrepresentation argument that AEC and its insurers contend that Rick Kyle, an agent of AEC, on two occasions before the written holding-pond contract was executed, sent Bailey letters requesting that Bailey provide AEC with certificates of insurance showing AEC as an additional insured on Bailey’s then existing insurance policies. The record supports that contention and also supports AEC and its insurers’ contention that Bailey responded to AEC’s requests by forwarding AEC’s letters to International Assurance. Of course, because those actions occurred before the parties entered into the written holding-pond contract, they cannot show that Bailey recognized its alleged duty to keep AEC as an additional insured during the performance of the subsequent holding-pond contract.

Aso in the misrepresentation-argument section of their brief, AEC and its insurers contend that they

“presented deposition testimony from Andrea Mills of International Assurance ([Bailey’s] insurance agent), who testified that [Bailey] sent her Rick Kyle’s letters, that she generated certificates of insurance showing AEC as an additional insured, that these certificates of insurance were evidence that AEC was an additional insured, and that she sent AEC these certificates of insurance with [Bailey’s] knowledge and consent.”

(Brief of AEC and its insurers at 18; references to record deleted.) The cited portion of Mills’s deposition testimony does not support a contention that, after execution of the written holding-pond contract but before the accident occurred, Bailey forwarded to International Assurance a letter from Rick Kyle requesting that AEC be named as an additional insured on Bailey’s insurance policy. Based on the arguments of AEC and its insurers and the portions of the record cited in their brief, we conclude that AEC and its insurers have not presented substantial evidence indicating that, after execution of the written holding-pond contract, Bailey assumed a duty to have AEC named as an additional insured on Bailey’s insurance policy relating to the holding-pond project.

As an alternative to its argument that Bailey assumed the duty to keep AEC as an additional insured on its insurance policies, AEC and its insurers also argue that, under Alabama caselaw, in determining whether a particular duty exists in the construction context, courts should look to

“1) the extent to which the transaction was intended to affect the other person, 2) the forseeability of harm to him, 3) the degree of certainty that he suffered injury, 4) the closeness of connection between the defendant’s conduct and the injury, 5) the moral blame attached to such conduct, and 6) the policy of preventing future harm.”

(Brief of AEC and its insurers at 26-27.) In support of this argument, AEC and its insurers cite Berkel & Co. Contractors, Inc. v. Providence Hospital, 454 So.2d 496, 503 (Ala.1984). In Berkel, this Court held that a property owner and its architect had a duty to act reasonably in performing their duties under a contract with a general contractor. The property owner and architect’s breach of that duty gave rise to a cause of action for negligence on the part of a subcontractor that was not in privity of contract with the property owner or the architect. The Court relied on five of the six above-listed factors in so holding (moral blame was irrelevant in that case). The Court’s holding was also buttressed by the fact that the property owner and its architect had substantial control over the subcontractor’s performance of its duties.

In the instant case, we have already determined that Bailey had no contractual duty to have AEC named as an additional insured on Bailey’s insurance policy in effect during the holding-pond project. That this case does not involve the negligent performance of an existing contractual duty is enough to distinguish it from Berkel. Further, AEC and its insurers have not cited any authority directly supporting the proposition that contractors generally owe their clients a duty, apart from any contractual duty, to maintain insurance naming those clients as additional insureds, a violation of which will give rise to actionable negligence, and we decline to so hold. Thus the trial court did not err in entering a summary judgment for Bailey on the negligence and wantonness claims.

IV. Conclusion

We hold as a matter of law that AEC and its insurers have not presented substantial evidence indicating that AEC reasonably relied on the certificates of insurance sent to it by International Assurance before AEC and Bailey entered into the written holding-pond contract as evidence that AEC was named as an additional insured on the policies represented by the certificates. We also hold that the parol evidence rule bars any finding of a contractual oral agreement between AEC and Bailey, independent of the written holding-pond contract, whereby Bailey agreed to maintain insurance naming AEC as an additional insured during the holding-pond project. Finally, we hold that AEC and its insurers have not presented substantial evidence indicating that Bailey had a duty to maintain such insurance, the violation of which would give rise to a cause of action for negligence or wantonness. Accordingly, the trial court correctly entered a summary judgment for Bailey.

AFFIRMED.

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

      . Black’s Law Dictionary 240 (8th ed.2004) defines a certificate of insurance as: "A document acknowledging that an insurance policy has been written, and setting forth in general terms what the policy covers.”

      . We do not reach the question of the effect of a request for access to an insurance policy and a subsequent refusal of access.

      . See Marlin v. Wetzel County Bd. of Educ., 212 W.Va. 215, 569 S.E.2d 462 (2002) (the court did not enforce the disclaimer in a certificate of insurance in an action against the insurer, relying on West Virginia law dealing with exceptions to the general rule against expanding coverage of an insurance agreement through the doctrine of estoppel).

      . AEC and its insurers also contend that “the existence of a duty to procure insurance has been recognized by this Court on several occasions.” (Brief of AEC and its insurers at 27.) However, the cases AEC and its insurers cite involve the liability of insurance agents who, with a view toward compensation, undertake to procure insurance coverage for the agents' potential clients, but who negligently fail to procure such coverage. Obviously, Bailey is not an insurance agent that undertook with a view to compensation to provide AEC with insurance coverage, and we decline to extend the cases AEC and its insurers cite to the instant situation.


source: Caselaw Access Project

author: LYONS, Justice.

license: Public Domain

text:
    DERAMUS HEARING AID CENTER, INC., and Glenda Deramus v. AMERICAN HEARING AID ASSOCIATES, INC.
    1050552.
    Supreme Court of Alabama.
    July 28, 2006.
    Jerry M. Blevins, Montgomery, for appellants.
    Danya R. Burnett and Charles N. Parnell III of Parnell & Crum, P.A., Montgomery, for appellee.
   LYONS, Justice.

On April 22, 2004, American Hearing Aid Associates, Inc. (“American Hearing”), sued Deramus Hearing Aid Center, Inc., and Glenda Deramus (hereinafter referred to collectively as “Deramus”), alleging breach of contract and seeking damages in the amount of $87,739.35.

Both American Hearing and Deramus filed a motion for a summary judgment. On April 19, 2005, the trial court conducted a hearing and on April 22, 2005, it entered an order, stating that it was granting Der-amus’s motion for a summary judgment. On June 17, 2005, the trial court, on its own initiative, entered an “Amended Order and Judgment,” purportedly for the purpose of including the amount of the judgment awarded to American Hearing, inadvertently omitted from the April 22, 2005, hearing. The amended order states:

“This cause came before the Court on [American Hearing’s] Motion for Summary Judgment seeking a summary judgment against [Deramus] in the total amount of Eighty-Seven Thousand Seven Hundred Thirty-Nine Dollars and Thirty-Five Cents ($87,739.35) plus court costs. The Motion for Summary Judgment was heard on April 19, 2005 before this Court. After carefully reviewing [American Hearing’s] Motion for Summary Judgment and all evidence submitted by [American Hearing] and [Deramus] in support of the Motion for Summary Judgment, including an affidavit and the oral arguments, this Court determinated that the Motion for Summary Judgment was due to be GRANTED. On April 22, 2005, an Order was issued granting [American Hearing’s] Motion for Summary Judgment, however, said Order failed to include the amount of the money judgment. It is therefore,
“ORDERED, ADJUDGED AND DECREED, that [American Hearing] is hereby awarded a judgment against [Deramus] in the amount of $87,739.35, plus court costs.”

On June 29, 2005, the trial court, on its own initiative, entered what is styled as a “FINAL ORDER” setting aside the April 22, 2005, order entering a summary judgment in favor of Deramus as having been inadvertently entered. The trial court explained in its final order that the record of the April 19, 2005, hearing would support its original intent to enter summary judgment in favor of American Hearing. The trial court further explained that the June 17, 2005, amended order and judgment reflected its original decision to enter a summary judgment in favor of American Hearing. The final order states:

“The Court hereby CORRECTS the record as it relates to its order dated April 22, 2005, granting summary judgment in favor of [Deramus]. The court inadvertently entered said order and hereby orders that the order is set aside and held for naught. The record of the April 19, 2005 hearing on the motions for Summary Judgment by both parties will support the court’s intention to grant summary judgment in favor of [American Hearing]. The AMENDED ORDER AND JUDGMENT entered and filed on June 17, 2005 is the true representation of the court’s decision in this matter.”

(Capitalization in original.)

Deramus filed a motion pursuant to Rule 60(b)(4), Ala. R. Civ. P., seeking relief from the final order. The trial court summarily denied this motion, and Deramus filed a motion to alter, amend, or vacate the final judgment, which the trial also denied.

Rule 60(a), Ala. R. Civ. P., provides that a trial court may correct a clerical mistake in a judgment at any time own its own initiative. The Committee Comments on 1973 Adoption of Rule 60(a), Ala. R. Civ. P., citing West Virginia Oil & Gas Co. v. George E. Breece Lumber Co., 213 F.2d 702 (5th Cir.1954), state that a “Rule 60(a) motion can only be used to make the judgment or record speak the truth and cannot be used to make it say something other than what was originally pronounced.” Black’s Law Dictionary 582 (8th ed.2004), defines “clerical error” as “[a]n error resulting from a minor mistake or inadvertence, esp. in writing or copying something on the record, and, not from judicial reasoning or determination. ” (Emphasis added.) On appeal, Deramus contends that the trial court’s June 17, 2005, amended order and judgment and its June 29, 2005, final order contain corrections that are not clerical in nature and that they are, therefore, void. Specifically, Deramus says that Rule 60(a), Ala. R. Civ. P., does not authorize the trial court to enter a judgment different from the judgment originally pronounced because such a change is substantial in nature and can be effected only under Rule 60(b) and Rule 59(e), Ala. R. Civ. P.

Deramus relies upon Crowson v. Woolard Bros., 879 So.2d 1203 (Ala.Civ.App.2003), to support its contention that the trial court in the instant case improperly used Rule 60(a), Ala. R. Civ. P., to render a subsequent judgment different from the judgment originally pronounced. We find Crowson, however, readily distinguishable from the instant case. In Crowson, the trial court entered an initial judgment finding that Crowson had been permanently and totally disabled as a result of a work-related injury. The trial court thereafter entered a second judgment purporting to find that Crowson had suffered a 98% vocational disability as a result of the work-related injury. The Court of Civil Appeals reversed the trial court’s second judgment, concluding that in finding that Crowson had suffered a 98% disability the trial court changed its initial findings regarding the employee’s disability and that such a change was substantial in nature and could not be effected under Rule 60(a), Ala. R. Civ. P.

In the instant case, it is undisputed that the trial court conducted a hearing on April 19, 2005, for the sole purpose of determining which party was entitled to a summary judgment. While the transcript of that hearing is not before this Court, it is clear from the June 17, 2005, amended order and judgment as well as from the June 29, 2005, final order that the trial court intended to enter a summary judgment in favor of American Hearing. The trial court refers to the “record” of the April 19, 2005, hearing. Either the trial court had a transcript of that hearing before it or assumed that one was available that would substantiate its recollection regarding what transpired at the hearing. In Continental Oil v. Williams, 370 So.2d 953 (Ala.1979), this Court stated that when a correction of a clerical error under Rule 60(a) is based upon the recollection of the court, it is not subject to contest. Id.

Based on the foregoing, we conclude that the trial court’s April 22, 2005, order contained a clerical error to the extent that it inaccurately described Dera-mus as the prevailing party when, according to the trial court’s amended order of June 17, 2005 — awarding damages in favor of American Hearing — Deramus was not entitled to a summary judgment. The trial court’s June 17, 2005, amended order and judgment is consistent with the intent to rule in favor of American Hearing because it indicates that the trial court was not yet aware of its clerical mistake. The trial court clearly had a right to vacate the wrong order and to a enter a corrected order on June 29, 2005, for the purpose of making the record speak the truth. To conclude otherwise would allow for an erroneous judgment to stand in favor of Der-amus.

Nothing in the record indicates that the trial court, after entering summary judgment in favor of Deramus, reweighed the evidence and decided to change its mind and render a “different” judgment in favor of American Hearing. A judgment is a “different” judgment if it purports to change the facts or to reweigh the evidence. See, e.g., Reaves v. Reaves, 883 So.2d 693 (Ala.Civ.App.2003) (trial court’s mistake in dividing husband’s retirement accounts in divorce proceeding was a not a clerical error, but a mistake of fact — i.e., how to divide retirement funds); and Crowson, supra (trial court’s initial finding that claimant was permanently and totally disabled and subsequent finding that he was 98% disabled was not a clerical error, but a change in the trial court’s initial findings). The type of correction in the instant case was clerical in that the correction did not involve one of judicial reasoning, i.e., a mistake of fact or modification of an original judgment, which would require judicial discretion under Rule 60(b), Ala. R. Civ. P. A contrary conclusion would require this Court to call into question the veracity of the trial court by contradicting the trial court’s express disavowal of any such intention. This we decline to do.

Based on the foregoing, we conclude that the trial court did not err in denying Deramus’s motion to set aside the June 17, 2005, amended order and judgment and the June 29, 2005, final order. Accordingly, the judgment of the trial court entering a summary judgment in favor of American Hearing and awarding American Hearing $87,739.35 plus court costs is affirmed.

American Hearing asserts in its brief on appeal that both parties submitted proposed orders to the trial court. American Hearing further asserts that at the conclusion of the April 19, 2005, hearing, it was under the impression that the trial court had granted its motion and, accordingly, it went to the clerk’s office to request a certificate of judgment. It was at this point that American Hearing learned that the trial court had apparently signed the wrong order. Deramus requests that this Court strike these assertions made by American Hearing in its brief, because, it says, those assertions are not a part of the record on appeal, i.e., the transcript of the April 19, 2005, hearing is not before us. We note that while the assertions made by American Hearing are not disclosed in the record on appeal and cannot be considered on appeal, the assertions are, nevertheless, consistent with our finding that it was the trial court’s intent to enter a summary judgment in favor of American Hearing. Therefore, we deny Deramus’s motion to strike.

MOTION TO STRIKE DENIED; AFFIRMED.

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


author: PARKER, Justice.

text:
    AmeriSOURCE CORPORATION v. CRSX, INC., d/b/a Blue Mountain Drugs, and Calhoun Pharmacy Services, Inc., d/b/a Golden Springs Pharmacy.
    1030615.
    Supreme Court of Alabama.
    July 28, 2006.

      Gary E. Sullivan and Russell N. Parrish of Farmer, Price, Hornsby & Weatherford, L.L.P., Dothan, for appellant.
    James M. Campbell of Campbell & Hopkins, Anniston, for appellees.
   PARKER, Justice.

In an action arising out of defaults on promissory notes, AmeriSource Corporation appeals from the Calhoun Circuit Court’s denial of its motion to alter, amend, or vacate a judgment entered in its favor insofar as that judgment excluded any amounts for prejudgment and post-judgment interest. AmeriSource argues that the trial court erred in not following the recommendations of the special master to whom the case was assigned; those recommendations, it argues, include the award of prejudgment and postjudgment interest.

I. History

CRSX, Inc., d/b/a Blue Mountain Drugs, and Calhoun Pharmacy Services, Inc., d/b/a Golden Springs Pharmacy (hereinafter referred to collectively as “the pharmacies”), entered into separate sales agreements with AmeriSource in February 1997 for the purchase of pharmaceuticals and related items to be supplied by Ameri-Source. In addition, they executed separate promissory notes to secure payment for the pharmaceuticals and related items. They subsequently defaulted on the agreements, and on September 22, 2000, Ameri-Source filed a complaint in the Calhoun Circuit Court demanding judgment in an amount just under $733,000, plus attorney fees and court costs.

The trial court, on motion of the pharmacies, appointed a special master, J. Barry Tidwell, to prepare an accounting of the activities conducted under the sales agreements and to submit a report stating what amounts, if any, were owed and to whom they were owed. Tidwell’s report, dated December 18, 2001, found that the pharmacies owed AmeriSource a total of $451,147. The report referred to “a reasonable estimate” of possible interest through October 1, 2000, of $117,041 from Golden Springs and $59,048 from Blue Mountain, but Tidwell also stated that “[t]his report does not include a calculation of finance (interest) charges, which may or may not be owed by the [pharmacies] to [AmeriSource].”

Neither side filed any objection to the report, and on August 27, 2003, the trial court entered an order granting Ameri-Source a judgment in the amount of $451,147. The order specifically provided: “Plaintiff will not be entitled to interest on the amount of its judgment.” Ameri-Source submitted a motion to alter, amend, or vacate the judgment, asking the trial court to adopt the findings of the special master regarding interest and requesting that it impose prejudgment and post-judgment interest. The trial court denied the motion, and AmeriSource appealed.

AmeriSource asserts that the trial court held no hearing on the special master’s report and that it thereby erred in disregarding the part of the findings in the special master’s report that included a means for. assessing possible interest owed by the pharmacies. The pharmacies assert that a hearing was indeed held, although not specifically on the special master’s report, and they deny that any interest is due on the amount awarded by the judgment.

II. Legal Analysis

A. Requirement of a Hearing on the Special Master’s Report

Rule 53, Ala. R. Civ. P., provides that a court may appoint a special master. Rule 53(e)(2), which governs the use of a master’s report in a nonjury action such as this one, provides:

“In an action to be tried without a jury the court shall accept the master’s findings of fact unless clearly erroneous. Within ten (10) days after being served with notice of the filing of the report any party shall serve any written objections thereto upon the other parties. Applications to the court for action upon the report and upon objections thereto shall be by motion and upon notice as prescribed in Rule 6(d). The Court after hearing may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions.”

(Emphasis added.) Rule 53(e)(2) gives the trial court discretion over its use of a special master’s recommendation and provides that the court must hold a hearing if a party files written objection by motion to the special master’s findings within 10 days of service of notice of the filing of the report. Thus, the hearing requirement is triggered by a timely objection.

In this case, the trial court did hold a hearing regarding the special master’s report before issuing its ruling in the case. However, the hearing was limited to evaluating the reasonableness of the fee charged by the special master and did not address the substance of the special master’s report. Furthermore, no party filed “an application to the court for action on the report.” Nevertheless, the trial court’s final order showed it did take the special master’s report into account.

In Johnson v. Willis, 893 So.2d 1138, 1141-42 (Ala.2004), a dispute between a mayor and the city council over the authority of each, the trial court failed to hold a hearing before it adopted the special master’s report recommending that a preliminary injunction be entered against the city council. In that case, this Court reversed the trial court’s order because the trial court did not hold a proper hearing. If the instant case were directly analogous, we would likewise reverse the trial court’s judgment. However, the two cases are easily distinguished.

In Willis, the city council filed a motion objecting to the special master’s report, as prescribed by Rule 53(e)(2), Ala. R. Civ. P. In the instant case, however, no party objected to the special master’s report as permitted under the rule. Furthermore, no hearing was held in Willis, whereas in the instant case a hearing, however limited, was held. Because no party in the instant case objected to the special master’s report or to the failure to cover the substance of the special master’s report at the hearing, the trial court did not violate the parties’ due-process rights when it took the special master’s report into consideration in issuing its ruling.

B. Prejudgment Interest

In the order appointing the special master in this case, the trial court assigned Tidwell, the special master, the task of determining, among other things, “what interest rate [AmeriSource] has charged [the pharmacies] on any outstanding balance due on [the pharmacies’] accounts from June 1, 1998, through October 1, 2000.” The trial court also asked Tidwell for “documentation and breakdown into categories of how [AmeriSource] charges penalties, fees and late charges to [the pharmacies’] accounts from June 1, 1998 through October 1, 2000.” The order appointing the special master did not, however, instruct Tidwell to determine the amount of interest, if any, on any amount found to be owed to AmeriSource by the pharmacies.

In keeping with the trial court’s instructions, Tidwell’s report did include a finding of the balance due on the pharmacies’ accounts through October 1, 2000, but it did not make a specific finding of the interest owed:

“In our expert opinion as Special Master of the Court, the balance owed by the Defendants, Golden Springs Pharmacy and Blue Mountain Drugs[,] to [Ameri-Source] as of October 1, 2000 is $451,147. This amount does not include any finance (interest) charges that may be owed by the [pharmacies]. Interest computed on the Average Outstanding Balance through October 1, 2000, at 1.5% per month (18% per year), is $117,042 and $59,048 for Golden Springs and Blue Mountain respectively.”

(Emphasis added.) Furthermore, Tidwell did summarize the various penalties and fees that could have applied, while noting that the billing and finance charges imposed by AmeriSource had been irregular:

“[The pharmacies] signed a credit application for the Blue Mountain store on September 13, 1995 agreeing to a service charge of 1% per month (12% per year) on any late payments.... We tested the finance charge on the Blue Mountain August 15, 1998 statement. The interest charge very closely approximates ... 12% per year. We tested the service charges ... on the December 15 and 31, 1998 statements and found the interest rate to ... equal 3% per month or 36% per year.... The billing and finance charges by [AmeriSource] seem to have been very irregular.”

But Tidwell stressed that his summary in his report of the various fees and penalties did not include a specific determination of what interest was owed; rather, his report outlined an approach to calculating the interest that would yield a “reasonable estimate of finance charges”:

“This report does not include a calculation of finance (interest) charges, which may or may not be owed by the [pharmacies] to [AmeriSource]. However, provided as a supplementary schedule (see Exhibit 6) to this report, is a calculation of finance charges that could be used as a reasonable estimate of finance charges based on average outstanding balances during the period in question for the [pharmacies].”

The proper understanding of the special master’s report is that the sentence that determines that the pharmacies owed Am-eriSource $451,147 as of October 1, 2000, represents a finding of fact for the purposes of Rule 53(e)(2), whereas the sentence that refers to finance or interest charges that “may or may not be owed” is not a finding of fact. The trial court, in its August 27, 2003, order, evidences a recognition of the difference between the two portions of the report:

“On December 18, 2001, the Special Master issued his report. In that report he found that the balance owed to [Am-eriSource] by [the pharmacies] was $451,147.00. In his observations about the records of [AmeriSource], the Special Master found that [AmeriSource] charged interest on some occasions and did not charge at all on others. In section 4 of his report Work Performed and Observations,’ the Special Master stated that ‘the billing of finance charges by [AmeriSource] appears to have been very irregular.’ ”

The trial court went on to say:

“It is the opinion of the Court that the Special Master was unable to find sufficient documentation to assess interest against the [pharmacies].
“It is hereby ORDERED, ADJUDGED and DECREED as follows:
“3. [AmeriSource] will not be entitled to interest on the amount of its Judgement.”

Perhaps because the special master’s report did not include a definitive finding of interest owed, AmeriSource relies on a letter from Tidwell to the trial judge dated January 4, 2002, sent after he issued the special master’s report dated December 18, 2001, as the basis for asserting that it is owed a total of $627,236 (judgment amount of $451,147 plus interest amounts of $117,041 and $59,048), rather than $451,147. AmeriSource’s brief at 11.

AmeriSource’s assertion is not persuasive. Before a court can award prejudgment interest, the amount must be calculable. A “trial court [does] not err in failing to award interest” when “the trial court [has] no evidence before it on which it could calculate the amount of interest due.” Hackworth v. Hackworth, 736 So.2d 1116, 1117 (Ala.Civ.App.1999) (abrogated on different grounds, T.L.D. v. C.G., 849 So.2d 200, 204 (Ala.Civ.App.2002)).

In the instant case, the special master’s report did not present clear evidence of the interest that was due; it merely provided suggested figures based on an assumed 18% interest rate that was not supported in practice by the transactions on record between AmeriSource and the pharmacies. Therefore, given the record in this case, the trial court did not err by disallowing prejudgment interest.

C. Postjudgment Interest

AmeriSource seeks postjudgment interest at the statutory rate of 12% per annum from the date of the entry of the judgment. § 8-8-10, Ala.Code 1975. Am-eriSource’s brief at 15. AmeriSource properly raised this issue before the trial court in its motion to alter, amend, or vacate. However, while the special master was conducting his investigation and before the trial court entered the order awarding AmeriSource a judgment amount of $451,147, AmeriSource had received $451,147 in payments from the pharmacies. Therefore, at the time the judgment was entered, there was no balance remaining that would make postjudgment interest applicable. Accordingly, we affirm the trial court’s judgment insofar as it declines to award postjudgment interest.

III. Conclusion

Because no party in the instant case objected to the special master’s report or to the trial court’s failure to address the substance of that report in the hearing, the trial court did not violate the due-process rights of the parties when it took the special master’s report into consideration in issuing its order. Furthermore, the trial court acted within its discretion in declining to award prejudgment and post-judgment interest. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

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

      . This case was originally assigned, to another Justice on this Court; it was reassigned to Justice Parker.


author: PARKER, Justice. SEE, Justice

text:
    Benjamin HOLLIS and Diane Hollis v. CITY OF BRIGHTON.
    1040073.
    Supreme Court of Alabama.
    July 28, 2006.

      Stan Brobston of Brobston & Brobston, P.C., Bessemer; and Albert Lipscomb of Lipscomb & Lipscomb, Bessemer, for appellants.
    Thomas S. Hale and G. Meador Akins of Burgess <& Hale, L.L.C., Birmingham, for appellee.
   PARKER, Justice.

Benjamin Hollis and Diane Hollis appeal from an order of the Jefferson Circuit Court granting a motion filed by the City of Brighton (“the City”) for a summary judgment on the Hollises’ vicarious-liability claim against it based on the actions of a police officer for the City. We affirm.

I. Factual and Procedural History

Police Officer Derwin Davis was on patrol at 1:56 a.m. on December 2, 1999, when he saw flames at a house at 4010 Keyes Avenue in Brighton. After notifying the fire department, Officer Davis entered the house and woke the occupants, Benjamin Hollis and Diane Hollis and their two sons, who had not been awakened by the smoke alarm. Officer Davis told the Hollis family to leave the house and wait outside for the arrival of the fire department. Mr. Hollis initially resisted Officer Davis’s directive and attempted to extinguish the fire, which had started in the master bedroom, with a blanket. In so doing, he sustained second-degree burns that required hospital treatment and surgery, and he was out of work for approximately one month.

Although he finally followed Officer Davis’s command to leave the house, Mr. Hollis continued to plead for permission to reenter the house to try and extinguish the fire. Officer Davis refused to permit Mr. Hollis to reenter the house, and the Hollises and Officer Davis remained outside. The fire department arrived about 45 minutes after they had left the house. Because of the delay, the house and its contents were totally destroyed. The following day, Mr. Hollis expressed his gratitude to Officer Davis for saving the lives of his family.

On May 22, 2000, the Hollises sued the City, alleging that the negligent, careless, and unskillful acts of the fire department in responding to the fire and the negligence or wantonness of Officer Davis in not allowing Mr. Hollis to reenter the house caused them to suffer damage. Mr. Hollis claimed that the fire initially involved only the curtains on the window in his bedroom and that the fire in the house could easily have been extinguished had Officer Davis permitted him to remain in or to reenter the house.

The City moved for a summary judgment based on State-agent immunity. The trial court granted the motion on April 16, 2001. The Hollises appealed, and this Court affirmed the summary judgment as to all claims except the claim for vicarious liability based on the alleged actions of Officer Davis; as to that claim, we reversed and remanded, stating:

“We notice a difference between certain critical language in the statute, § 6-5-338(a), [Ala.Code 1975,] and certain critical language in the [Ex parte] Cranman [792 So.2d 392 (Ala.2000),] restatement describing the conduct immunized. That is, the statute refers to ‘conduct in performance of any discretionary function within the line and scope of his or her law enforcement duties’ while immune category (4) of the [Ex parte] Cranman restatement refers to conduct ‘exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement officers’ arresting or attempting to arrest persons.’ In the particular case now before us, we need not decide whether or how the difference between the language of the statute and the language of the Cranman restatement affects the scope of the immunity, since the record does not establish without dispute or as a matter of law that the act of the policeman in ordering the plaintiffs not to reenter the burning house to fight the fire fits within either description of immune conduct. Nor does the record establish without dispute or as a matter of law that the act of the policeman fits within any of the other Cran-man categories of immune conduct. Thus, we cannot rely on the § 6-5-338(a) immunity, as described by either the statute itself or the Cranman restatement, to affirm the summary judgment on the plaintiffs’ claim for vicarious liability for the act of the policeman. See Ex parte Rizk, 791 So.2d [911] at 914 [(Ala.2000)]:
“ ‘Dr. Rizk’s treatment of his patient, the plaintiffs decedent, does not fit within any of the categories of immune State-agent conduct contained in the Cranman restatement. Therefore, Dr. Rizk is not immune.’
“The policeman may or may not have been negligent in ordering the plaintiffs not to reenter the burning house to fight the fire. Thus, the City may or may not be liable for his conduct. That issue is not before us because the summary-judgment motion of the City did not raise the factual merits of the plaintiffs’ claims. See Liberty National [Life Ins. Co. v. University of Alabama Health Servs., 881 So.2d 1013 (Ala.2003),] and Tanner [v. State Farm Fire & Cas. Co., 874 So.2d 1058 (Ala.2003) ]. Accordingly, while we must reverse the summary judgment on this claim, we express no opinion about the factual merits.”

Hollis v. City of Brighton, 885 So.2d 135, 143-44 (Ala.2004) (“Hollis I”). On remand,' the City filed a new motion for a summary judgment, asserting that Officer Davis was entitled to immunity under the fourth category of the restated rule governing State-agent immunity set out in Ex parte Cranman, 792 So.2d 392, 405 (Ala. 2000), and under §§ 6-5-338(a) and 13A-10-6, Ala.Code 1975. The trial court entered a summary judgment for the City on the vicarious-liability claim, and the Hollis-es appeal.

II. Standard of Review

“ ‘We review a summary judgment de novo.’ Potter v. First Real Estate Co., 844 So.2d 540, 545 (Ala.2002) (citation omitted). ‘Summary judgment is appropriate only when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” ’ Ex parte Rizk, 791 So.2d 911, 912 (Ala.2000) (citations omitted).

“‘In determining whether the non-movant has created a genuine issue of material fact, we apply the “substantial-evidence rule” — evidence, to create a genuine issue of material fact, must be “substantial.” § 12-21-12(a), Ala.Code 1975. “Substantial evidence” is defined as “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).’
“Callens v. Jefferson County Nursing Home, 769 So.2d 273, 278-79 (Ala.2000) (footnote omitted). In deciding a motion for a summary judgment, or in reviewing a summary judgment, the court must accept the tendencies of the evidence most favorable to the nonmoving party and must resolve all reasonable factual doubts in favor of the nonmoving party. Bruce v. Cole, 854 So.2d 47 (Ala.2003), and Pitney Bowes, Inc. v. Bemey Office Solutions, 823 So.2d 659 (Ala.2001). See Ex parte Helms, 873 So.2d 1139, 1143 (Ala.2003), and Willis v. Parker, 814 So.2d 857 (Ala.2001).”

Hollis I, 885 So.2d at 140.

III. Legal Analysis

The issue the Hollises present on this appeal is whether the trial court erred in granting the City’s motion for a summary judgment on the basis that the City was immune from liability for the actions of Officer Davis. The Hollises seek a jury trial to determine whether Officer Davis acted negligently in ordering the Hollises to leave the house when Mr. Hollis believed he could extinguish the fire.

The trial court granted the City’s motion for a summary judgment by making the following entry on the case-action-summary sheet:

“The Court received argument on July 20, 2004 on the Summary Judgment and finds there to be no issue of fact that is in dispute and that [the City] is entitled to a judgment as a matter of law. Summary Judgment granted for the [City]. Costs taxed as paid.”

As noted earlier, this Court stated in Hollis I:

“[T]he record does not establish without dispute or as a matter of law that the act of the policeman in ordering the [Hollises] not to reenter the burning house to fight the fire fits within either description of immune conduct. Nor does the record establish without dispute or as a matter of law that the act of the policeman fits within any of the other Cranman categories of immune conduct. Thus, we cannot rely on the § 6-5-338(a) immunity, as described by either the statute itself or the Cranman restatement, to affirm the summary judgment on the [Hollises’] claim for vicarious liability for the act of the policeman. ...
“The policeman may or may not have been negligent in ordering the [Hollises] not to reenter the burning house to fight the fire. Thus, the City may or may not be liable for his conduct. That issue is not before us because the summary-judgment motion of the City did not raise the factual merits of the [Hollises’] claims. See Liberty National and Tanner, supra. Accordingly, [although] we must reverse the summary judgment on this claim, we express no opinion about the factual merits.”

885 So.2d at 144. In summary, this Court in Hollis I said (1) that the record did not establish immunity as a matter of law, either under Ex parte Cranman, supra, or under § 6-5-338(a) (the peace-officer-immunity statute) and (2) that the factual merits of the Hollises’ negligence claim were not raised in their motion for a summary judgment.

A finding of immunity, however, precludes a claim based in negligence.

“Peace-officer immunity, like State-agent immunity, does not provide immunity from liability for the commission of an intentional tort, but only for negligence in the exercise of judgment. See Ex parte Turner, 840 So.2d 132, 136 (Ala.2002)(‘ “a State agent shall not be immune from civil liability in his or her personal capacity ... (2) when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.” ’ (quoting Ex parte Cranman, 792 So.2d 392, 405 (Ala.2000))).
“2The test for State-agent immunity, as discussed in Ex parte Cranman, 792 So.2d 392 (Ala.2000), and adopted by a majority of this Court in Ex parte Butts, withholds immunity from State agents acting in their personal capacity, ‘ “when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.” ’ Ex parte Butts, 775 So.2d 173, 178 (Ala.2000) (quoting Cranman, 792 So.2d at 405).”

Gary v. Crouch, 867 So.2d 310, 313-14 (Ala.2003). See also City of Birmingham v. Sutherland, 834 So.2d 755, 762 (Ala.2002). On the other hand, the Cranman restatement makes it clear that State-agent immunity does not cover a State agent’s acts of willfulness or maliciousness:

“Notwithstanding anything to the contrary in the foregoing statement of the rule, a State agent shall not be immune from civil liability in his or her personal capacity
“(2) when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.”

Cranman, 792 So.2d at 405.

Here, the Hollises, in response to the City’s summary-judgment motion, did not assert the existence of a genuine issue of material fact. They stated:

“[The Hollises] generally agree with the statement of facts provided by the [City] except in addition thereto requests the court consider the testimony of Ben Hollis attached hereto pursuant to which he stated that at the time the City of Brighton Police Officer ordered his wife and him out of the house that the fire in the bedroom involved only the curtains and could have been extinguished. According to Mr. Hollis, the police officer prohibited Mr. Hollis from further attempting to extinguish the fire. It is this unreasonable, negligent, and/or unskillful act which is the basis of [the Hollises’] claim against the city based on the negligence and/or unskillfulness of its police officer.”

The focus of the Hollises’ argument was that “[t]he issue to be tried, as stated by the Supreme Court [in Hollis I], is factually whether or not the police officer’s order of the [Hollises] to abandon their house and in [his] refusal to allow them to fight the fire was unreasonable. ” (Emphasis in original.) However, if State-agent immunity exists here as a matter of law, no such factual issue will be reached.

The City’s reply to the Hollises’ response points this out:

“[The Hollises] misinterpret the Supreme Court’s decision [in Hollis I] in [their] response to [the City’s] Motion for Summary Judgment. The Supreme Court did not ask the factual question whether or not the police officer’s order to the [Hollises] to evacuate their house was ‘reasonable.’ The Court simply stated that ‘the record does not establish without dispute or as a matter of law that the act of the policeman in ordering the [Hollises] not to reenter the burning house to fight the fire was within either [6 — 5—338(a) or Cranman’s] description of immune conduct.’ [The City] shows that Police Officer Davis’[s] conduct fits within either description.
“ ‘Reasonableness’ is not the standard by which discretionary immunity is reviewed. The standard to be applied is not a ‘reasonable’ one, but, rather, whether the defendant acted in bad faith or with malice or willfulness. Ex parte Davis, 721 So.2d 68[6] (Ala.1998). To determine whether a public official is entitled to discretionary function immunity, the court applies a two-prong test. First, the defendant officer must prove that the ‘plaintiffs claims arise from the defendant’s performance of a discretionary function.’ Id. at 689. Once the defendant officer satisfies this first prong, ‘the burden then shifts to the plaintiff to establish that the defendant acted in bad faith or with malice or willfulness, in order to deny the defendant discretionary immunity from suit.’ Id.
“In its brief in support of summary judgment, [the City] meets this burden by showing that its conduct falls within either immunity category. Therefore, the burden shifts, and the [Hollises] must prove that the [City] acted in bad faith or with malice or willfulness. [The Hollises] have simply failed to prove this....”

In its motion for a summary judgment on remand from this Court, the City argued that Officer Davis was immune under § 6-5-338(a), Ala.Code 1975, because he fit within immune category (4) of the Cranman restatement. That Code section provides that every peace officer “shall have immunity from tort liability arising out of his or her conduct in performance of any discretionary function within the line and scope of his or her law enforcement duties.” § 6-5-338(a). The City argued that Officer Davis fit within category (4) of Cranman based on § 13A-10-6, Ala.Code 1975, which provides:

“(a) A person commits the crime of refusing to assist in fire control if, upon command by a fireman or peace officer identified to him as such, he intentionally disobeys a reasonable order or regulation made in the relation to the conduct of persons in the vicinity of a fire.
“(b) Refusing to assist in fire control is a Class C misdemeanor.”

(Emphasis added.) This statute appears to be the basis for the Hollises’ argument below that Officer Davis’s order not to reenter the house was not reasonable. Admittedly, if Officer Davis does not have immunity, the reasonableness of the order becomes the issue. However, if Officer Davis does have immunity, the reasonableness of the order is not at issue. Moreover, if Officer Davis is immune, then so is the City, which employed him. Howard v. City of Atmore, 887 So.2d 201, 211 (Ala.2003) (“It is well established that, if a municipal peace office is immune pursuant to § 6-5-338(a), then ... the city by which he is employed is also immune.”). Thus, the primary issue in this case is whether Officer Davis is immune.

In Ex parte Cranman, this Court restated the test for State-agent immunity as follows:

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

792 So.2d at 405.

In Blackwood v. City of Hanceville, 936 So.2d 495, 504 (Ala.2006), this Court said:

“‘Cranman is a restatement of the law of immunity, not a statute. Cranman states categories, but does not purport to set forth an exhaustive list of activities falling within each category.’ Howard v. City of Atmore, 887 So.2d 201, 206 (Ala.2003).
“Before Cranman, the immunity accorded a peace officer under § 6-5-338(a) was analyzed in terms of whether at the time of the act complained of the officer was engaged in the performance of a discretionary act.
“ ‘Thus, this statute [§ 6-5-338(a) ] shields police officers from tort liability for discretionary acts performed “within the line and scope of [their] law enforcement duties.” [§ 6-5-338(a) ]; Williams, 741 So.2d at 1076. “Alabama law has defined ‘discretionary acts’ as ‘ “[t]hose acts [as to which] there is no hard and fast rule as to course of conduct that one must or must not take” and those requiring “exercise in judgment and choice and [involving] what is just and proper under the circumstances.” ’ ” Montgomery v. City of Montgomery, 732 So.2d 305, 310 (Ala.Civ.App.1999) (emphasis added). “[U]nder the distinction between ministerial and discretionary functions, ‘the official is immune only where that which he does in the performance of his lawful duties requires “personal deliberation, decision and judgment.” ’ ” White v. Birchfield, 582 So.2d 1085, 1087 (Ala.1991).’
“Norris v. City of Montgomery, 821 So.2d 149, 153 (Ala.2001)(a post -Cranman case, but argued and decided without reference to Cranman). See also Ex parte City of Montgomery, 758 So.2d 565 (Ala.1999); Williams v. Crook, 741 So.2d 1074 (Ala.1999); and Couch v. City of Sheffield, 708 So.2d 144 (Ala.1998).
“However, ‘[wjhether a qualified peace officer is due § 6-5-338(a) immunity is now judged by the restatement of State-agent immunity articulated by Ex parte Cranman, 792 So.2d 392 (Ala.2000).... ’ Hollis v. City of Brighton, 885 So.2d 135,143 (Ala.2004).
“ ‘By enacting [§ 6-5-338], the Legislature intended to afford municipal law-enforcement officials the immunity enjoyed by their state counterparts. Sheth v. Webster, 145 F.3d 1231, 1237 (11th Cir.1998). Indeed, “[t]his statute, by its terms, extends state-agent immunity to peace officers performing discretionary functions within the line and scope of their law-enforcement duties.” Moore v. Crocker, 852 So.2d 89, 90 (Ala.2002) (emphasis added).
“ ‘In Ex parte Cranman, supra, this Court “restated the law of state-agent immunity in Alabama.” Moore, 852 So.2d at 90. Since Cranman, we analyze immunity issues in terms of “State-agent” immunity, rather than “under the dichotomy of ministerial versus discretionary functions.” Ex parte Hudson, 866 So.2d 1115, 1117 (Ala.2003). See also Giambrone v. Douglas, 874 So.2d 1046, 1052 (Ala.2003); Ex parte Turner, 840 So.2d 132, 134 n. 1 (Ala.2002). Thus, we will address the applicability of peace-officer immunity under the principles set forth in Cranman. See Moore, supra; Ex parte Duvall, 782 So.2d 244 (Ala.2000).’
“Howard, 887 So.2d at 203.”

In Hollis I, this Court noted that the difference between the language of § 6-5-338(a) and the language used in category (4) of Cranman:

“We notice a difference between certain critical language in the statute, § 6-5-338(a), and certain critical language in the Cranman restatement describing the conduct immunized. That is, the statute refers to ‘conduct in performance of any discretionary function within the line and scope of his or her law enforcement duties’ while immune category (4) of the Cranman restatement refers to conduct ‘exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement officers’ arresting or attempting to arrest persons.’ ”

885 So.2d at 143-44. Writing specially in Hollis I, Justice Lyons stated:

“The day may well come when the restatement in Ex parte Cranman, 792 So.2d 392 (Ala.2000), should be modified so as to extend the reference in paragraph (4) dealing with ‘exercising of judgment in the enforcement of criminal laws,’ 792 So.2d at 405 (emphasis added), to include an additional phrase dealing with ‘discharge of law-enforcement duties.’ However, I agree with the main opinion that that issue at this stage of the proceedings in the instant case is not yet ripe for determination.”

885 So.2d at 145 (Lyons, J., concurring in the rationale in part and concurring in the judgment). On appeal following remand, this Court has not been asked to modify category (4) of the Cranman restatement. Nevertheless, “this Court will affirm a judgment for any reason supported by the record that satisfies the requirements of due process.” Smith v. Mark Dodge, Inc., 934 So.2d 375, 380 (Ala.2006) (citing Taylor v. Stevenson, 820 So.2d 810, 814 (Ala.2001)). By giving notice to the bench and bar of the possibility of a future clarification of immune category (4) of the Cran-man criteria, Justice Lyons’s special writing in Hollis I satisfies the due-process-requirements concern noted in Mark Dodge. Consequently, this Court is free to modify category (4) of the Cranman restatement.

Given the divergence between the scope of the immunity granted by § 6-5-338(a) — “conduct in performance of any discretionary function within the line and scope of his or her law enforcement duties” — and summarized in category (4) of the Cranman restatement — “exercising judgment in the enforcement of the criminal laws of the State .... ” — we conclude that immune category 4 of the Cranman restatement should be expanded to restate the law of immunity in this area so as to reflect § 6-5-338(a).

Because the peace officers’ immunity statute does not limit the availability of immunity to “enforcement of the criminal laws,” we today modify category (4) of Cranman to read as follows:

“A State agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent’s
“(4) exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement officers’ arresting or attempting to arrest persons, or serving as peace officers under circumstances entitling such officers to immunity pursuant to § 6-5-338(a), Ma.Code 1975.”

(Additional language emphasized.)

Applying the immune category (4) in the modified Cranman restatement to the circumstances of this case, we conclude that because Officer Davis was exercising judgment in the discharge of his law-enforcement duties when he ordered Hollis not to reenter his house after he had already suffered severe burns, Officer Davis is immune from civil liability.

IV. Conclusion

Because Officer Davis is immune the municipality that employed him is also immune. Accordingly, we affirm the summary judgment for the City of Brighton.

AFFIRMED.

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

SEE, J., concurs specially.

SEE, Justice

(concurring specially).

I concur in the main opinion’s modification of category (4) of the Ex parte Cranman, 792 So.2d 392 (Ala.2000), restatement and in the conclusion reached in that opinion that Officer Davis is immune from civil liability in his individual capacity and that the City is thus entitled to a summary judgment on the Hollises’ vicarious-liability claim. I write only because I am concerned about the following language in the main opinion:

“On appeal following remand, this Court has not been asked to modify category (4) of the Cranman restatement. Nevertheless, ‘this Court will affirm a judgment for any reason supported by the record that satisfies the requirements of due process.’ Smith v. Mark Dodge, Inc., 934 So.2d 375, 380 (Ala.2006) (citing Taylor v. Stevenson, 820 So.2d 810, 814 (Ala.2001)). By giving notice to the bench and bar of the possibility of a future clarification of immune category (4) of the Cranman criteria, Justice Lyons’s special writing in Hollis I satisfies the due-process-requirements concern noted in Mark Dodge. Consequently, this Court is free to modify category (4) of the Cranman restatement.”

950 So.2d at 308-09 (footnote omitted).

This language could be read to suggest that this Court is required by the Due Process Clause of the Constitution of the United States to give some type of warning to litigants before we can modify or overrule court-made law. In other words, that absent some kind of foreshadowing, we may act only prospectively. Such an inference is incorrect. Our traditional function is to decide cases before us upon our “ ‘ “best current understanding of the law.” ’ ” Professional Ins. Corp. v. Sutherland, 700 So.2d 347, 352 (Ala.1997) (quoting other cases). Retroactive application of our decisions is in keeping with that traditional function and is “overwhelmingly the normal practice.” Id.

It is true, as the main opinion indicates, that the rule that we may affirm a trial court’s judgment “for any reason supported by the record” is constrained by the requirements of due process. However, the due-process concern addresses a lack of notice of the issues that are before the court, when that lack of notice denies a party the opportunity to address the issues upon which the case turns and thereby effectively denies the party his “day in court.” Liberty Nat’l Life Ins. Co. v. University of Alabama Health Servs. Found., P.C., 881 So.2d 1013, 1020 (Ala.2003). That due-process requirement does not constrain our traditional practice of deciding cases before us under our best current understanding of the law and applying those decisions retroactively.

      . Our recognition that due process was afforded in this case by Justice Lyons’s foreshadowing in Hollis I of a possible extension of category (4) of the Cranman restatement does not imply that such notice is required in every case in which this Court modifies or overrules its precedent.

      . "|T]his Court will affirm the trial court on any valid legal ground presented by the record, regardless of whether that ground was considered, or even if it was rejected, by the trial court.... This rule fails in application only where due-process constraints require some notice at the trial level, which was omitted, of the basis that would otherwise support an affirmance, such as when a totally omitted affirmative defense might, if available for consideration, suffice to affirm a judgment, Ameri-quest Mortgage Co. v. Bentley, 851 So.2d 458 (Ala.2002), or where a summary-judgment movant has not asserted before the trial court a failure of the nonmovant’s evidence on an element of a claim or defense and therefore has not shifted the burden of producing substantial evidence in support of that element, Rector v. Better Houses, Inc., 820 So.2d 75, 80 (Ala.2001) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), and Kennedy v. Western Sizzlin Corp., 857 So.2d 71 (Ala.2003)).”

        Liberty Nat’l Life Ins. Co. v. University of Alabama Health Servs. Found., P.C., 881 So.2d at 1020.

      . The Supreme Court of the United States has said that it will consider, as one factor in deciding whether to apply a new rule of law prospectively only, whether the new decision overrules clear past precedent or decides an issue of first impression the resolution of which was not clearly foreshadowed. Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971). The lack of foreshadowing, however, does not pose a due-process problem. We also note that the Supreme Court of the United State held in Harper v. Virginia Department of Taxation, 509 U.S. 86, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993):
      ''[A]n opinion announcing a rule of federal law 'is properly understood to have followed the normal rule of retroactive application' and must be 'read to hold ... that its rule should apply retroactively to the litigants then before the Court.' [James BJ Beam [Distilling Co. v. Georgia,] 501 U.S. [529], 539 [(1991)].”
      509 U.S. at 97-98, 113 S.Ct. 2510, 125 L.Ed.2d 74.