author: HARWOOD, Justice. PARKER, Justice

text:
    Terry FORD v. CARYLON CORPORATION, INC., et al.
    1040554.
    Supreme Court of Alabama.
    Feb. 24, 2006.

      Arlene M. Richardson of Richardson Legal Center, LLC, Hayneville; Michael Guy Holton, Pike Road; and Tommy Allen French of Robert B. French, Jr., P.C., Fort Payne, for appellant.
    Joseph H. Driver and Thomas S. Thornton III of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for appellees Carylon Corporation, Inc., Video Industrial Services, and Chris Eady.
   On Application for Rehearing

HARWOOD, Justice.

We overrule the' application for a rehearing filed by Carylon Corporation, Inc. (“Carylon”), &nd Video Industrial Services (“Video”). However, in reviewing the original briefs of the parties in the process of considering that application, we noted material that persuades us to withdraw our original opinion and substitute one incorporating a different rationale at one point. Accordingly, the opinion released bn November 10, 2005, is withdrawn and the following substituted therefor.

Terry Ford appeals from a summary judgment in favor of Carylon, Video, and Chris Eady (collectively “the defendants”).

Ford sued the defendants alleging that he had been injured as a result of their willful conduct in removing a safety device from a machine he used as an employee of Video, referencing § 25-5-ll(c)(2), Ala. Code 1975, and that they had subsequently discharged him from employment in retaliation for filing a workers’ compensation claim, in violation of § 25-5-11.1. The trial court granted the defendants’ motion for a summary judgment, as to those claims, without expressing a rationale other than that there were no genuine issues of fact and the defendants were entitled to a judgment as a matter of law. Ford appeals only as to that ruling, although other claims he asserted against the defendants were eliminated by a subsequent summary judgment. We affirm in part, reverse in part, and remand.

Standard of Review

We review a summary judgment de novo, seeking to determine whether the evidence presents a genuine issue of material fact and whether the movant was entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P. If the movant makes a prima facie case that no genuine issue of material fact exists, the burden then shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank, 538 So.2d 794, 798 (Ala.1989). Evidence is “substantial” if it is 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). This Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).

Facts

Video, a subsidiary of Carylon, provides industrial-scale environmental-cleanup and maintenance services. Ford began his employment with Video on March 10, 2001.

On March 23, Ford and his supervisor, Eady, were assigned to clean a water-treatment tank located at the waterworks system of the Water and Sewer Board of the City of Guntersville. The assigned cleanup work entailed the use of an industrial vacuum to remove charcoal, which had been used to filter water processed through the tank, from the bottom of the tank.

The vacuum used is known as an SV-119. It is manufactured and sold by Clean Earth Manufacturing and is the most powerful vacuum Video uses in performing its cleanup services. Regardless of the strength of the particular vacuum used on a job, however, Video has mandatory safety rules regarding the use of all vacuums. Among these is a rule that all individuals performing jobs for which a vacuum is necessary must have in place on the vacuum hose an “in-line relief valve,” a device colloquially referred to as a “safety T.” In shape, the safety T resembles the capital letter “T” and is used to connect two sections of a vacuum hose, allowing the user quickly to relieve accumulated pressure within the hose. The two hoses joined by the safety T constitute a straight line, connected by the horizontal line at the top of the letter “T.” The vertical line in the letter “T” represents the part of the device that juts out from the hose connection at a right angle and contains a valve that can be tripped open by pulling on a rope attached to the valve to relieve vacuum pressure in the hose.

On the morning of March 23, Eady and Ford arrived at the waterworks system and proceeded to a building that housed two water-treatment tanks. Eady prepared to clean the first tank by removing a six-inch diameter flexible hose from the vacuum truck, connecting it to the vacuum, and lowering the hose into the tank. Eady did not install a safety T anywhere along the length of the hose. He began vacuuming the charcoal, eventually entering the tank in order to reach the bottom layers of charcoal. When he finished vacuuming the entire tank, he emerged, and he and Ford drove the vacuum truck to a remote location where they deposited the charcoal refuse.

The two returned to the waterworks, at which point Eady instructed Ford to clean the second tank. Ford had observed the vacuuming process, but he had never before manned the vacuum hose. Ford undertook to perform the task in a manner similar to the manner in which he had seen Eady perform it. After he had been vacuuming the tank for approximately 30 minutes, and while he was inside it, a large chunk of solid charcoal entered the vacuum hose. The chunk stopped suddenly at a bend in the hose, and the impact caused the hose to jerk suddenly out of Ford’s hands, in turn causing the hose to flail about as Ford attempted to recapture it. The hose came within inches of Ford’s hand and, given its strong suction power, drew Ford’s hand into the hose and drew itself up Ford’s arm, stopping only at Ford’s shoulder. The tremendous force of the vacuum caused Ford’s shirt sleeve to rip from his shirt and caused a significant amount of blood to be drawn from other areas of Ford’s body into his arm and hand, thus decreasing blood flow elsewhere in his body, and eventually causing Ford to collapse; Ford, however, did not lose consciousness.

When the hose initially attached to Ford’s arm, Ford began screaming for Eady, but Eady did not respond. Only when Eady began to hear the machine “bog down” did he turn off the vacuum. At this point, Ford was able to free his arm from the hose, and he saw that his arm had at least tripled in size. Paramedics were called to the scene, and Ford was taken to Guntersville Hospital; he was soon transported via helicopter to a trauma center at the University of Alabama-Birmingham Medical Center (“UAB”). UAB surgeons operated on Ford’s arm on three separate occasions, and Ford was required to undergo physical therapy and psychological treatment.

On Monday, December 10, 2001, nearly nine months after his injury, Ford returned to work at Video. On Monday, February 4, 2002, his employment was terminated. Because our evaluation of Ford’s retaliatory-discharge claim requires, under the legal precedent hereinafter discussed, that we consider the totality of the facts leading up to that termination, we will set out the facts chronologically in all pertinent detail. In that regard, obedient to the controlling standard of review, we have accepted as true those facts in the record most favorable to Ford, resolving all reasonable doubts in his favor. Hanners, supra. Therefore, relying on Ford’s version of events wherever there is any dispute between the parties as to. what actually happened, we construe the relevant events to be as follows:

Ford reported to work on the morning of December 10, 2001, pursuant to instructions from Video’s workers’ compensation case manager. Upon returning to work, Ford first encountered Donnie Keith, a superintendent, who instructed him to wait in the office. Video’s general superintendent, Don Tyler, then appeared and told Ford “to go stand out in the shop,” which he did “for about three and a half hours.” He was then dispatched to ride around in a truck driven by another employee, which he did for the remainder of the day. Before departing on that later assignment, however, Ford had informed Tyler that he had an appointment scheduled with his treating psychiatrist, Dr. Melnteer, for the next day. Ford was well aware of the established company policy that required employees to telephone the office between 4:30 and 5:00 o’clock each afternoon to learn if they were being assigned to á job the next day, unless they had ascertained that information before leaving work for the day, either from a superintendent or from the posted work schedules. Employees were allowed time off for a doctor’s appointment, however, and if an employee properly advised company personnel that he or she was going to a doctor on a particular date, the employee would not otherwise need to check in at the office concerning the availability of work.

Despite the fact that Ford had advised Tyler of his doctor’s appointment scheduled for Tuesday, December 11, when Ford did not report to work that morning, Keith wrote up an “Employee Warning Notice,” citing Ford for “disobedience” because he had not shown up for work or called in to advise that he would be off. A copy of the notice was placed in Ford’s file, and Ford was suspended from work for Wednesday, December 12. Having telephoned the office that Wednesday afternoon, however, to check on the availability of work, Ford reported back to work the morning of Thursday, December 13. Keith called him into the office, told everybody else to leave the office, and handed Ford a copy of the warning notice. He told Ford that he was tired of all the other employees’ complaining about Ford’s being there and that those other employees were not going to do Ford’s job for him. Ford was then assigned to flag traffic with a work crew.

On Friday, December 14, Ford was sent to Decatur, Alabama, and the company employee to whom he was assigned once he arrived advised him that the work involved “vacuuming out tanks and water blasting.” Ford advised the employee that he could not hold a water blaster with his injured arm and that he was not “going to put [himself] into another tank and get caught in that thing again.” When the employee telephoned Keith to advise him of the situation, Keith instructed Ford to return to the company’s office in Birmingham. There Ford was taken into the office for a meeting with Keith, Tyler, and the president of Video, John Kulbitskas. Kulbitskas insisted that Video had a letter stating that Ford could lift 80 pounds or more after the accident, but when Ford asked to see the letter, Kulbitskas would not show it to him.

Unbeknownst to Ford, Tyler wrote up another “Employee Warning Notice” that day, citing Ford for being “uncooperative” because Ford had “refused to run vacuum truck and said he would not operate water lance due to his condition of his arm. He also stated he was hired back for TV work only.” Ford, however, had not refused to do the work but had only explained that he was unable to do it. When the workers’ compensation manager had told him to report back to work after the accident, she had told him that he was going to be assigned to do only work in the TV trucks. Keith acknowledged in his deposition that he knew that Ford could not “handle holding the water blaster ... he couldn’t handle the cable and TV. He couldn’t pick up the camera. That’s the reason, you know, he couldn’t run the— couldn’t do the computer work.” Keith testified further that Ford had told him that he was afraid of the vacuum trucks because of his experience and that Keith had run out of jobs to which he could assign Ford.

From Monday, December 17 through Friday, December 21, Ford worked daily flagging traffic, as instructed. No work was scheduled on Monday, December 24, or Tuesday, December 25, Video apparently being closed those two days for the Christmas holiday. On Wednesday, December 26, 2001, Ford reported back to work and flagged traffic as instructed and did likewise on Thursday, December 27, and Friday, December 28. Following the weekend of December 29 and 30, the company was to be closed on New Year’s eve, December 31, and New Year’s day, Tuesday, January 1, 2002. Before leaving work on Friday, December 28, Ford advised Tyler that Ford had a doctor’s appointment scheduled for Monday, January 7.

On Wednesday, January 2, 2002, Video was shut down as the result of an ice storm; when Ford telephoned the office that evening and spoke with Keith he was advised that there would be no work available for him on Thursday, January 3. When Ford telephoned the office on Thursday, January 3, Keith advised him that there would be no work available for Friday, January 4.

On Monday, January 7, Ford kept his doctor’s appointment and then went straight to the Video office with his “slip” from the doctor, arriving there before lunch. Ford testified that the following occurred upon his arrival:

“That’s when [Kulbitskas] went into one of his little spouting moods. And he started — every time I tried to explain something to him, he’d holler ‘bullshit, bullshit.’
“And I just told him — I just told him out of respect for you, and out of respect for me don’t cuss me or don’t cuss at me. And he got up and stuck his finger in my face and told me, Tm sick of all of this, it’s going to be my way or no way.’ And then he walked out of the office and went over to where the ladies work. And then Don Tyler handed me my paycheck and said ‘See ya.’ And then I walked out and got in my car and left.”

That same day, Tyler wrote an official letter-form memo addressed to Ford, sending copies to Keith, Kulbitskas, and the company safety director and placing a copy in Ford’s personnel file. The letter asserted that Ford had telephoned Tyler on January 2 to advise that he would not be at work on January 7, but that Ford had not advised that he would not be at work on January 3 or 4, or that his arm was giving him trouble and he was going to the doctor. Ford testified in his deposition that he did not talk to Tyler on January 2. The memo declared that the incident represented “the second time in which you have neglected to call for scheduling following a no-show by you for work,” and advised that should Ford “fail again to call in for scheduling or neglect to inform this office with regard to your availability to work we will have no other option than to immediately terminate your position.” The memo closed by reminding Ford that he was “to call in for scheduling between 4:30 p.m. and 5:00 p.m. Monday through Friday unless there is a schedule posted on the board and you are physically able to view it.”

The evening of Monday, January 7, Ford telephoned the office and spoke with someone who he believes was Keith who told him to report to work the following day. He did so and was again assigned to flag traffic. At the end of that January 8 shift, Keith told him to report to work the next day. On Wednesday, January 9, he was again given the job of flagging traffic and again was told by Keith at the end of the shift to report the next day. He flagged traffic on Thursday, January 10, and advised Tyler that he had an appointment with Dr. Mclnteer at the rehabilitation center the following day, Friday, January 11, and an appointment with “Jerry Clug for an evaluation on my hand” on Monday, January 14. The evening of Monday, January 14, Ford telephoned the office and was instructed by Keith to report for work the next day. He worked flagging traffic on Tuesday and Wednesday, January 15 and 16. At the end of the workday on January 16, Keith told him there would be no work for him on January 17, but to check in with the office that afternoon. Ford did so and also telephoned the office on Friday, January 18, Monday, January 21, Tuesday, January 22, Wednesday, January 23, and Thursday, January 24. On each occasion, Keith told him that there was no work available for the following day, but to check back at the end of the following day.

On Friday, January 25, 2004, Ford had to be away from home to accompany his father on an errand and told his mother that if he was not back in time to call the office, for her to telephone on his behalf to find out if Video would have any work for him on Monday, January 28. His mother did so, and spoke with Donnie Keith. Keith told her to tell Ford that “[h]e would call me when he had something, otherwise not to worry about it.”

Ford heard nothing further from anyone at Video until, on either February 6 or 7, he received a letter that had been written by Kulbitskas on February 4, which stated, in pertinent part:

“Dear Mr. Ford:
“As per our past discussion and memos to you, you have failed to contact this office regarding any availability for work. On January 25, 2002, your mother, not you[,] called to see if work was available. This was the last contact Video has had with ‘you.’ Since you have not contacted this office for work this constitutes a voluntary resignation on your part.”

Ford did not attempt to contact Kul-bitskas, because “I just went by what the letter said, that I was terminated.” Based on Keith’s instructions to Ford’s mother, Ford had understood that he was relieved of the responsibility of telephoning at the end of each day to see if work was available the next day, company policy requiring only that he do so “unless told otherwise”; he believed he had been “told otherwise.”

Analysis

Ford argues that the trial court erred in entering a summary judgment for the defendants as to his retaliatory-discharge claim and his willful-removal-of-a-safety-device claim, the latter of which he characterizes as an intentional-trespass claim. He contends that he presented substantial evidence indicating that the termination of his employment was in retaliation for his filing a workers’ compensation claim and that the defendants are liable in trespass for Eady’s failure to install the “safety T.” (Ford’s brief, at 40.)

I. Retaliatory Discharge

At the outset, we note that Ca-rylon is the parent corporation of Video. A parent corporation generally cannot be held liable for the acts of its subsidiary unless the latter’s corporate veil can be pierced as a result of the parent’s abuse of control. Environmental Waste Control, Inc. v. Browning-Ferris Indus., Inc., 711 So.2d 912, 914 (Ala.1997). There is not the faintest suggestion that Carylon used Video as its “alter ego”; thus we affirm the summary judgment as to Carylon. Further, because the retaliatory-discharge statute, quoted below, refers to an employee’s being terminated “by an employer Ala.Code 1975, § 25-5-11.1, this claim could be brought against Video only, not Eady, and we affirm the summary judgment for Eady on the retaliatory-discharge claim. Therefore we will consider Ford’s retaliatory-discharge claim only in relation to Video.

Generally, an employment contract for an indefinite period is terminable at will for any reason or for no reason. Webb Wheel Prods., Inc. v. Hanvey, 922 So.2d 865, 870 (Ala.2005); Tyson Foods, Inc. v. McCollum, 881 So.2d 976, 978 (Ala.2003). Section 25-5-11.1, Ala.Code 1975, sets out an exception to the employment-at-will doctrine. It provides, in pertinent part:

“No employee shall be terminated by an employer solely because the employee has instituted or maintained any action against the employer to recover workers’ compensation benefits under this chapter....”.

(Emphasis added.) ■

Before a trial court, a plaintiff bears the initial burden of making a prima facie showing of the elements of a retaliatory-discharge claim. McCollum, 881 So.2d at 979. These elements are:

“1) an employment relationship, 2) an on-the-job injury, 3) knowledge on the part of the employer of the on-the-job injury, and 4) subsequent termination of employment based solely upon the employee’s on-the-job injury and the filing of a workers’ compensation claim.”

Alabama Power Co. v. Aldridge, 854 So.2d 554, 563 (Ala.2002). Once this showing has been made and supported, the burden then shifts to the defendant, who must provide substantial evidence indicating a legitimate reason for the discharge, after which the burden shifts back to the plaintiff to demonstrate by substantial rebuttal evidence that the defendant’s reason or reasons are not true, but pretextual. 854 So.2d at 567.

It is undisputed that Ford proved the first three elements of a prima facie case. As to the third element, Kulbitskas acknowledged in deposition testimony that when he wrote his letter to Ford on February 4, 2002, he knew that Ford had filed a workers’ compensation claim: “That was no big secret. I mean, you know, the guy was hurt pretty bad. He was on workman’s comp.” Video contests only element four, arguing that Ford has not proved by substantial evidence that his employment was terminated, as opposed to his having voluntarily resigned; 'and, Video argues, even if he has shown that his employment was terminated, Ford has not shown that it was terminated solely because he filed a claim for workers’ compensation benefits.

Video argues that Ford’s failure to telephone the company beginning January 25 to check on the availability of work and his acquiescence in the content of the February 4 letter demonstrate his voluntary resignation, thus rendering § 25-5-11.1, which deals only with terminations, inapplicable. See, e.g., Kent Corp. v. Hale, 699 So.2d 954, 958-59 (Ala.1997) (employee who chose to discontinue his employment could not maintain retaliatory-discharge action).

A. Prima Facie Case — Voluntary Resignation Versus Termination

In its brief to this Court, Video uses the term “voluntary resignation” to describe two separate incidents. Initially, the term is used to refer to Ford’s failure to telephone Video to check on the availability of work beginning January 25, when Ford’s mother — not Ford — telephoned Video, or at the latest, January 26. Video later uses the same phrase to refer to Ford’s failure to challenge in any way the content of the February 4 letter he received from Kulbitskas.

Regarding Ford’s failure to telephone Video, Video offered the “Third Affidavit of John Kulbitskas,” in which he stated:

“On or about February 4, I issued a letter to [Ford] regarding his voluntary resignation. When I wrote this letter, to the best of my knowledge, [Ford] had not called to report in as required from January 25, 2002, through February 4, 2002. Moreover, to the best of my knowledge, neither I, nor any other representative of [Video] had relieved [Ford] of this requirement.”

Given Ford’s rendition of Keith’s instructions to Ford’s mother during their January 25 telephone conversation, which version controls our view of the facts (and Video has offered no contrary version from Keith), Ford’s discontinuation of “check in” calls to Video did not indicate a resignation. He understood that Keith would initiate contact when there was work for Ford to perform and that otherwise Ford was “not to worry about it.”

Video argues that Ford’s failure to respond to the February 4 letter from Kul-bitskas indicated his agreement with the underlying premise of the letter — that he had, in fact, resigned. This argument is meritless, if for no other reason than it implies that Ford’s failure to respond to the letter caused his actual discharge. Moreover, Ford argues in his brief that “[t]his letter from John Kulbitskas left no opening for Ford to contest the findings or allow him an opportunity to explain the circumstances. Therefore, Ford did not respond and felt he had been fired, with no recourse.” As earlier noted, in his deposition Ford testified that he did not telephone Video to protest the letter because, “I just went by what the letter said, that I was terminated.”

Construing the facts most favorably to Ford, as our standard of review compels us to do, we conclude that a genuine issue of material fact exists as to whether Ford “resigned” under either theory advanced by Video.

B. Prima, Facie Case— Causal Connection

It is essential that a plaintiff in a retaliatory-discharge action make a showing that the filing of a workers’ compensation claim was the sole cause of the plaintiffs subsequent discharge. Aldridge, 854 So.2d at 563.

“Circumstantial evidence of a causal connection between a workers’ compensation claim and an employee’s discharge is appropriate in a retaliatory-discharge action. Culbreth v. Woodham Plumbing Co., 599 So.2d 1120 (Ala.1992). This Court identified in Aldridge certain factors that can be considered as circumstantial evidence of a causal connection between an employee’s filing a workers’ compensation claim and that employee’s discharge^]
“ ‘ “1) knowledge of the compensation claim by those making the decision on termination, 2) expression of a negative attitude toward the employee’s injured condition, 3) failure to adhere to established company policy, 4) discriminatory treatment in comparison to similarly situated employees, 5) sudden changes in an employee’s work performance evaluations following a workers’ compensation claim, and 6) evidence that the stated reason for the discharge was false.” ’
854 So.2d at 564-65 (quoting Chhim v. University of Houston, 76 S.W.3d 210, 218 (Tex.Ct.App.2002)). Furthermore, we observed that ‘[m]any states also consider “[p]roximity in time between the filing of the workers’ compensation claim and discharge” a persuasive factor in establishing a causal connection.’ Aldridge, 854 So.2d at 565 (quoting Rebarchek v. Farmers Coop. Elevator & Mercantile Ass’n, 272 Kan. 546, 555, 35 P.3d 892, 899 (2001)).”

Flint Constr. Co. v. Hall, 904 So.2d 236, 248 (Ala.2004).

In this case, Ford presented substantial evidence of an official expression of a negative attitude toward his injured condition, by means of Keith’s assertion that other employees were complaining to him about Ford’s being on the job but not doing his job, which they indicated they were not going to do for him. Likewise indicative of a negative attitude was Kulbitskas’s angry confrontation with Ford when Ford reported to the office after his doctor’s appointment on January 7, 2002, which had been preapproved.

More fully developed, however, is Ford’s evidence of Video’s failure to adhere to established company policy in reacting to Ford’s absences from work. Under his version of the facts, which controls our review, see Hanners, supra, he faithfully telephoned to check on the availability of work and reported to work whenever he was instructed, bypassing available work on only three days when he. had doctor’s appointments that he had cleared in advance with Don Tyler. Even then, on January 7, he came to the office immediately after his visit with the doctor. After he had complied with company policy by telephoning Donnie Keith in advance of each scheduled workday following his last assigned work day of January 16, 2002, and had been told on seven successive occasions that there was no work available to him, he was advised by Keith, through his mother, that Keith would call him when Video had any work for him to do, but “otherwise, not to worry about it.” Thereafter, no one from Video attempted to telephone or otherwise contact Ford, but his employment was terminated on February 4 on the asserted basis that he had not made the necessary contacts with Video.

Kulbitskas explained in his deposition that under company policy an employee would not be disciplined for not calling in one time, although they might be disciplined after two times and “it might go to three,” and that if an employee did not call in, “usually the first couple of times, it’s verbal.” He explained that “[t]hen a written notice” is sent and “then if they don’t call in” it is assumed they have voluntarily resigned. “But by the third day or so” Video would be wondering where the employee was “so we try to call them. Because we call employees.” Kulbitskas testified that it was “fine” for an employee to take time off for a doctor’s appointment upon advance notice to Video.

Accordingly, Ford sufficiently established that Video had failed to adhere to established company policy.in terminating his employment on February 4, 2002, so as to make out, by circumstantial evidence, a prima facie case of causal connection between his workers’ compensation claim and his discharge. The burden then shifted to Video to prove that it had a legitimate reason for terminating Ford’s employment.

C. Video’s Proffer of a Legitimate Reason for Discharging Ford

Once a plaintiff in a retaliatory-discharge action has established .a pri-ma facie case, the burden- shifts .to the employer to adduce substantial evidence of a legitimate reason for the discharge.

“An employer’s stated basis for a discharge is sufficient as a matter of law when the underlying facts surrounding the stated basis for the discharge are undisputed and there is no substantial evidence indicating (a) that the stated basis has been applied in a discriminatory manner to employees who have filed workers’ compensation claims, (b) that the stated basis conflicts with express company policy on grounds for discharge, or (c) that the employer has disavowed the stated reason or has otherwise acknowledged its pretextual status.”

Aldridge, 854 So.2d at 568 (emphasis supplied).

In Aldridge, we concluded that the-plaintiff had offered no evidence “indicating that termination otherwise conflicted with stated company policy on grounds for discharge.” 854 So.2d at 569. As noted, that is not the situation here.

Video argues that, whatever might have been the actual facts of Ford’s “call in” history and his history of reporting -to work, Kulbitskas established by his affidavit that, when he wrote Ford on February 4, to the best of Kulbitskas’s knowledge, neither he nor any other representative of Video had relieved Ford of the require-merit of telephoning Video daily to report in, and Ford had simply not telephoned in as required after January 25. In McCollum, 881 So.2d at 983, we explained:

“[Section] 25-5-11.1 demands that there be specific knowledge of the plaintiffs claim for benefits on the 'part of the one who terminated, the plaintiff, and that that knowledge be the sole motivating force behind the termination. There is no room in the statute for a generalized ‘imputation’ of such knowledge throughout a company or other entity; rather, in order to establish a prima facie case, the plaintiff must demonstrate, by substantial evidence, a direct and distinct causal link between one having knowledge of the plaintiffs workers’ compensation claim and the termination.”

Here the issue of knowledge is different; the question is not whether Kul-bitskas knew that Ford had filed a workers’ compensation claim, but whether he knew that Ford had been relieved of the duty of contacting Video to check on the availability of work. Although one might infer from the circumstances that when Kulbitskas learned of the telephone call placed by Ford’s mother he also necessarily learned what Keith had told her, this possible inference is eliminated by an express concession in Ford’s brief to this Court. In arguing that Keith occupied a confidential relationship with Kulbitskas, so that Keith’s knowledge of his conversation with Ford’s mother should be imputed to Kulbitskas, Ford states, “Keith, as ad-visor and counselor, should have informed Kulbitskas of his conversation with Ford’s mother. However, he did not." (Ford’s brief,- p. 28.) (Emphasis added.) Such an explicit admission in a brief is binding on the party making it. Best Plant Food Prods., Inc. v. Cagle, 510 So.2d 229 (Ala.1987); Louisville & N.R.R. v. Johns, 270 Ala. 694, 121 So.2d 872 (1960); and First Nat’l Bank v. Town of Luverne, 235 Ala. 606, 180 So. 283 (1938).

Nonetheless, as explained in Aldridge, an employer’s stated basis for discharge is sufficient as a matter of law only when the underlying facts surrounding the stated basis for the discharge are undisputed and, among other things, there is no substantial evidence indicating that the stated basis conflicts with express company policy on grounds for discharge. In addition to the previously discussed company policy regarding the progression of disciplinary action when an employee failed to call in or to show up for work, Don Tyler testified that when an employee did not call in the first time, he was orally reminded of the policy and then written up only if he failed to call in again. Tyler testified that if an employee has not called in by 5:00 to check on the availability of work for the next day, “sometimes we — we try calling them. Other times we just reschedule and put somebody else in their place.”

Chris Eady testified on deposition that if an employee failed to call in, nothing usually happened; that if the employee failed to report, to work, the employee would sometimes be called, depending on the work; and that it would be fair to say that if Video needed an employee who had not telephoned in to check on the status of work, they would telephone him the next day to report to work.

Under Keith’s understanding of company policy, not showing up for work would not automatically cause a person’s employment to be terminated; he testified that “if [an employee’s] got a reason, then you know, [he’s] got a reason.”

In explaining his reason for writing the letter of February 4 to Ford, Kulbitskas testified:

“His mother called in one day. And then we didn’t hear from Terry, for, I don’t know, a week or something like that. You know particular interest was paid to Terry, because we were trying to accommodate him, get him into the TV end of it. We had other jobs going on, which he could have worked at, and he just did not call in.
“Terry did not want to work. He didn’t call in. We talked to him repeatedly about calling in. We tried to call him. And, basically, you know, when a guy doesn’t call in and doesn’t call in, and you try to get him to come in, he didn’t appear to be interested in working.”

(Emphasis added.) As noted, Ford’s evidence contradicts Kulbitskas’s assertion that Video had tried to telephone Ford. Also, contrary to Kulbitskas’s representation that if Ford had called in after January 25, Video had jobs on which he could have worked, Keith testified that he, as Ford’s supervisor, had run out of jobs to which he could assign Ford, and every day from January 16 to January 25 Keith had advised Ford that there was no work available.

Ford was written up for “disobedience” immediately after he had recovered sufficiently to return to work, and he was suspended for a day as a disciplinary measure. The write-up was unjustified, given that Ford had advised Don Tyler he would have to be off work that next day because of a doctor’s appointment, and, at any event, a write-up, much less a suspension, was contrary to company policy in connection with an employee’s first failure to call in. On only his second workday thereafter, December 14, 2001, Ford was again written up, without notice to him, this time for being uncooperative for allegedly refusing to perform assigned work.

Thus, there is substantial evidence in the record indicating that Video’s stated basis for discharging Ford “conflicts with express company policy on grounds of discharge.” Aldridge, 854 So.2d at 568.

D. Pretext

Much of what we have already discussed is relevant to the issue whether Video’s stated reason for terminating Ford’s employment — that he simply stopped calling in without justification after January 25, 2002 — could be deemed to be pretextual. “If we were to say that, as a matter of law, the reason given by [the employer] is a conclusively legitimate reason, the beneficent purposes of section [25] — 5—11.1 would be significantly undermined.” Flint Constr. Co., 904 So.2d at 251 (quoting Culbreth v. Woodham Plumbing Co., 599 So.2d 1120, 1123 (Ala.1992)). Kulbitskas asserted that particular interest was paid to Ford, and that Video tried to telephone him after he had stopped calling in. This is contrary to the facts presented by Ford, and the failure to attempt any contact with Ford was contrary to company policy. He was wrongfully written up on three separate occasions, and, in connection with the December 11 write-up, he should have received an oral reminder rather than a written citation for disobedience placed in his personnel file. After Keith had run out of jobs to assign Ford to, beyond flagging traffic, and had thereafter advised Ford on seven successive occasions that there was no work for him, it was contrary to company policy— and to the special interest supposedly being paid to Ford — to terminate Ford’s employment without at least once attempting to telephone him.

Despite the fact that Video’s stated basis for terminating Ford’s employment conflicts with express company policy regarding grounds for discharge, to the extent Kulbitskas’s assertion that there was a legitimate basis shifts the burden to Ford to show that the stated reason was pretex-tual, the totality of the evidence is sufficient to raise a genuine issue of material fact concerning whether Video’s stated reason for terminating Ford’s employment was pretextual.

II. Willful Removal of a Safety Device

Section 25-5-11, Ala.Code 1975, provides, in pertinent part:

“(b) If personal injury ... to any employee results from the willful conduct, as defined in subsection (c) herein, of any ... employee of the same employer ..., the employee shall have a cause of action against the person....
“(c) As used herein, ‘willful conduct’ means any of the following:
“(2) The willful and intentional removal from a machine of a ... safety device provided by the manufacturer of the machine with knowledge that injury or death would likely or probably result from the removal.... ”
Ford has consistently labeled the violation of this statute as “intentional trespass.” Whatever the proper designation, § 25-5-11(b) clearly envisions an action against only a co-employee. Thus, only Eady may be the subject of this claim.
This Court, in Harris v. Gill, 585 So.2d 831, 835 (Ala.1991), broke § 25-5-ll(c)(2) into four elements:
“1. The safety guard or device must have been provided by the manufacturer of the machine;
“2. The safety guard or device must have been removed from the machine;
“3. The removal of the safety guard or device must have occurred with knowledge that injury would probably or likely result from that removal; and
“4. The removal of the safety guard or device must not have been part of a modification or an improvement that rendered the safety guard .or device unnecessary or ineffective.”

The failure to install a safety device is the equivalent of removing of that device. Bailey v. Hogg, 547 So.2d 498, 500 (Ala.1989). In the instant action, although Ford charges Eady with removal of the safety T, it seems clear that his allegation is actually that Eady never installed the safety T on the vacuum hose that caused Ford’s injuries. This allegation, however, is functionally equivalent to the allegation of the removal of a safety device, as Hogg indicates.

In his motion for a summary judgment on this issue, Eady argued that the safety T was not “provided by the manufacturer of the machine” and thus that the failure to install the safety T could not constitute willful conduct under § 25-5-ll(c)(2).

In Harris v. Simmons, 585 So.2d 906 (Ala.1991), we held that there was no evidence of willful conduct because the safety guard alleged not to have been installed was not provided by the manufacturer. 585 So.2d at 907. Three distinct portions of Kulbitskas’s deposition testimony, presented in chronological order, are relevant to the issue whether the safety T was provided by the manufacturer:

“Q. [Counsel for Ford:] ... [W]ho is the manufacturer of the particular vacuum on this jetter truck?
“A. On the truck that we — which one?
“Q. The manufacturer of the vacuum.-
“A. That was on this job here?
“Q. Yeah.
“A. That was Clean Earth—
“Q. Clean Earth?
“A. —Manufacturing, here in Birmingham.
“Q. Located here in Birmingham?
“A. Uh-huh. (Witness indicates affirmatively.)
“Q. Do they build them here in Birmingham?
“A. They build them.
“Q. Oh, really?
“A. They assemble them, yeah.
“Q. Do you have a rep that comes out to visit you, or do you just do direct—
“A. No. We’ve done business with them quite a while, and they’re just pretty much — it’s a corporate account.”

Shortly thereafter, the following discussion transpired. Here, Kulbitskas is testifying regarding the hoses connected to the vacuum and used to vacuum material out of the water-treatment tanks:

“Q. Now, do you purchase those hoses? And would you purchase those at Home Depot [a building-supplies store], or wherever else—
“A. No, we get them from the — direct from the manufacturer.
“Q. Oh, okay, from the manufacturer of the—
“A. Of the plastic hose.
“Q. Okay. And that would be Clean Earth Manufacturing?
“A. No.
“Q. No. Okay.
“A. I’m trying to think of who sells that hose. I don’t know.”

Finally, counsel for Ford moved from a discussion of the vacuum and the hoses to the actual safety T:

“Q. ... Could you explain to me what that safety T is for.
“A. That’s if — if there’s a problem of the hose getting stuck — something stuck, you know, to the floor, and you can’t get it loose. You ... stuck it into the material too far, and you can’t get it out of it, you break the vacuum by allowing air to get into the hose and back to the truck—
“Q. Okay.
“A. —at some point along the line.
“Q. Okay. So that would be something that was in the hose, or would it be something in the — or the truck, or the back—
“A. It’s on the hose.
“Q. On the hose?
“A. On the hose.
“Q. Okay. And is that something that you would purchase separately from the manufacturer or—
“A. Yes. There are people that sell that particular item.
“Q. Okay. Who are the people that sell that particular item?
“A. I can’t think of the name of the company, but it’s a safety equipment company that sells that type of stuff.
“Q. Okay. Now you — obviously, you purchased those, you know — is it called a safety switch?
“A. Safety T.
“Q. Safety T. And you purchased those direct from the company—
“A. The company, yeah.
“Q. —who manufactures the thing? And would it be — would you have purchase orders on those?
“A. It would be either that or bills, or something like that.
“Q. Okay. How often do those need to be replaced?
“A. That’s hard to say. We will buy a number of them.
“Q. Uh-huh. (Counsel indicates affirmatively.)
“A. Let’s say a dozen, just for a number—
“Q. Right.
“A. —and have them in stock. And they have a way of being used as wheel chalks and getting lost and strayed and stolen. And so then we’ll — as they get up to the point where we don’t have enough for the trucks in spare, then we’ll order another batch.”

These three segments of Kulbitskas’s deposition testimony establish that Clean Earth Manufacturing was not the supplier of the safety T Video used on the vacuum hoses it used to perform its cleaning services. Kulbitskas’s testimony demonstrates that he is quite familiar with Clean Earth Manufacturing and its products, that he is sure that Video does not purchase its hoses from Clean Earth Manufacturing, and that it purchases them from another company. He could not recall the name of that company. He likewise knows that Video obtains the safety T’s it uses from “a safety equipment company,” not Clean Earth Manufacturing, although, again, he could not recall the name of that company. Clearly, if Clean Earth Manufacturing was the supplier of the safety T, Kulbitskas would recall this fact. Therefore, we conclude that Eady has made a prima facie showing that Clean Earth Manufacturing, the manufacturer of the vacuum involved in the incident in which Ford was injured, did not “provide” the safety T at issue.

In response to this showing, Ford points first to a “Parts and Accessories Catalog” put out by the “Clean Earth Environmental Group.” On page one of that catalogue is a “Disclaimer” that provides, in pertinent part, that “Clean Earth Environmental Group, Inc. does not manufacture or purport to own the product names and designs noted herein with a ‘†,’ but Clean Earth is proud to offer these quality products to its customers.... ” On page 13 of the catalogue, a variety of sizes of “InLine Relief Valves” is advertised. A safety T is, as noted, also known as an in-line relief valve. There is no “†” designation associated with the advertisement for this item; therefore, it is reasonable to conclude that Clean Earth Environmental Group, Inc., is the manufacturer of the safety T advertised in its catalogue.

The catalogue issued by Clean Earth Environmental Group, Inc., although advertising several of its vacuum trucks in its final pages, does not advertise the SV-119 model vacuum truck as an item available for purchase or rental from that vendor. There is thus no indication that Clean Earth Environmental Group, Inc., is related to Clean Earth Manufacturing. In addition Kulbitskas was clear in his testimony that Video obtains safety T’s not from Clean Earth Manufacturing, but from another source. Whether that safety T was purchased from Clean Earth Environmental Group, Inc., or some other third party not pertinent to this appeal, there remains a complete dearth of evidence indicating that when Video purchased the SV-119 vacuum any hose that came with it was equipped with a safety T. Because Ford’s burden is to present substantial evidence creating a genuine issue as to who manufactured the safety T at issue, and because the evidence proffered by Eady makes a prima facie showing that someone other than Clean Earth Manufacturing provided the safety T at issue, we conclude that Eady is entitled to a summary judgment as to this issue.

Conclusion

Because the defendants have met their burden of demonstrating that there is no genuine issue of material fact as to Ford’s “trespass” claim, and because the defendants are consequently entitled to a judgment as a matter of law on this issue, we affirm the trial court’s summary judgment as to that claim. We likewise affirm the summary judgment for Carylon and Eady on Ford’s retaliatory-discharge claim. Because Video has not met its burden with respect to Ford’s retaliatory-discharge claim, we reverse the summary judgment for Video as to that claim and remand the cause for proceedings consistent with this opinion.

APPLICATION OVERRULED; OPINION OF NOVEMBER 10, 2005, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

PARKER, J., concurs specially.

PARKER, Justice

(concurring specially).

I concur with the main opinion solely because it correctly interprets § 25-5-11, Ala.Code 1975, thereby precluding recovery by Terry Ford for the injuries he suffered. I am writing specially because I believe that in this case the statute does not adequately fulfill its intended purpose of providing a cause of action for injury or death resulting from the willful conduct of a third party, and I call upon the Alabama Legislature to correct the wording of the statute so that equity may be served in future claims of this nature.

Section 25-5-11, Ala.Code 1975, provides a cause of action for an employee or the employee’s estate to recover damages from a third party for personal injury or death that “results from the willful conduct, as defined in subsection (c) herein, of any ... employee of the same employer ....”§ 25-5-ll(b), Ala.Code 1975. “[T]he willful and intentional failure to install an available safety guard equates to the willful and intentional removal of a safety guard for the purposes of Ala.Code 1975, § 25 — 5—11(c) (2) Bailey v. Hogg, 547 So.2d 498, 500 (Ala.1989).

Terry Ford was injured on the job that he had held for about two weeks when he lost control of a large vacuum hose and his arm was drawn into it. An experienced coworker had set the machine up without using a “safety T,” which some evidence indicates might have prevented, or substantially reduced the severity of, Ford’s injuries. Testimony was presented indicating that Ford’s employer kept a stock of the safety T’s on hand, and the evidence established that the company required the use of the safety T for every job involving a vacuum.

Ford’s injuries required surgery and physical therapy. He also received psychological treatment and did not return to work for nearly nine months after the accident. Although it would seem that Ford could have a cause of action under subsection (c) as defined above and in Hogg, that is not to be, as evidenced by the main opinion, because an action for recovery for damages is precluded by subsection (c)(2), which provides an action for the “willful and intentional removal from a machine of a ... safety device provided by the manufacturer of the machine .... ” (Emphasis added.) In short, merely because the uninstalled safety T was not provided by the manufacturer of the vacuum machine, Terry Ford cannot recover for his injuries.

I believe Terry Ford has suffered an injustice. Unfortunately, the statute as currently worded does not afford him a remedy. As tempting as it might be to expand the statute beyond its plain meaning and to afford him the remedy he rightfully deserves, by doing so we as judges would be usurping a role that does not belong to us. Judge Robert Bork wrote of just such a judicial temptation to engage in political activism:

“In law, the moment of temptation is the moment of choice, when a judge realizes that in the case before him his strongly held view of justice, his political and moral imperative, is not embodied in a statute or in any provision of the Constitution. He must then choose between his version of justice and abiding by the American form of government. Yet the desire to do justice, whose nature seems to him obvious, is compelling, while the concept of constitutional process is abstract, rather arid, and the abstinence it counsels unsatisfying. To give in to temptation, this one time, solves an urgent human problem, and a faint crack appears in the American foundation. A judge has begun to rule where a legislator should.”

Robert Bork, The Tempting of America: The Political Seduction of the Law 1 (McMillan, Inc., 1990). As Judge Bork warned, judges are to apply, not make, law. If we were to expand the statute in this case to produce the result we would like to see, we would usurp a power the Framers of our constitutional system wisely reserved to the legislative branch of government. In fact, we are at the outer parameter of our authority when we interpret and apply the law as enacted by the legislature, call an unfortunate result to the attention of the legislature, and urge it to take corrective action.

      . One of Video’s functions is televising sewers for municipalities and private developers, looking for abnormalities in the pipes. Apparently, this is the "TV work” to which Tyler is referring.


source: Caselaw Access Project

author: HARWOOD, Justice.

license: Public Domain

text:
    Ex parte LEROY HILL COFFEE COMPANY, INC., Greg King, and Rick Gates. (In re Coffee Pro, Inc., and Paul Stewart v. Leroy Hill Coffee Company, Inc., et al.)
    1050245.
    Supreme Court of Alabama.
    Feb. 24, 2006.
    Paul M. James, Jr., of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery; and L. Daniel Mims, Mobile, for petitioners.
    David A. McDonald and Vincent F. Kil-born III and W. Perry Hall of Kilborn, Roebuck & McDonald, Mobile, for respondents.
   HARWOOD, Justice.

Leroy Hill Coffee Company, Inc. (“LHC”), Greg King, and Rick Gates, the defendants in a proceeding in the Mobile Circuit Court (collectively “the petitioners”), petition for a writ of mandamus directing the Mobile Circuit Court to vacate its order compelling the petitioners to submit to further discovery. We grant the petition.

On August 22, 2005, a jury awarded both compensatory and punitive damages to the plaintiffs, Paul Stewart and Coffee Pro, Inc. (“Coffee Pro”) (collectively “the plaintiffs”), in their successful action against the petitioners. The plaintiffs subsequently served upon the petitioners various postjudgment discovery requests. These discovery requests primarily sought information relating to the financial status of LHC.

On September 21, both sides filed post-judgment motions. The plaintiffs filed a motion for an additur, seeking to increase the amount of the punitive damages awarded to Coffee Pro. The petitioners filed a renewed motion for a judgment as a matter of law or, in the alternative, a motion for a new trial and/or a remittitur.

The trial court conducted a hearing on the motions. During that hearing, which focused primarily upon the petitioners’ motion for a remittitur, the plaintiffs argued that they needed to discover LHC’s corporate records in order to defend the punitive-damages award against the motion for a remittitur. The petitioners responded by contending that the punitive-damages award would not affect their financial position and that thus their financial position— normally a Hammond/Green Oil factor in determining whether to order a remittitur of punitive damages — should not be considered by the trial court. Nevertheless, the trial court stated that it would allow the plaintiffs to discover LHC’s financial information, much of which the petitioners claimed represented protected trade secrets. To prevent the improper use of the information sought by the plaintiffs, however, the trial court ordered the plaintiffs to draft a protective order allowing only the attorneys representing the parties and any expert witnesses to see the information produced by the petitioners.

On November 18, 2005, the petitioners filed the instant petition in this Court seeking a writ of mandamus directing the trial court to vacate its order compelling discovery. That same day, they filed an emergency motion with this Court seeking an immediate stay of all postjudgment discovery. This Court granted the petitioners’ motion and ordered all postjudgment discovery stayed. The plaintiffs filed a brief in response to the petition on December 5, 2005, and the petitioners filed their reply brief on December 12, 2005.

On December 16, 2005, the trial court conducted a hearing on the petitioners’ renewed motion for judgment as a matter of law, their motion for a new trial, and/or for a remittitur. There is no indication whether the trial court expressly denied the motions for a judgment as a matter of law and for a new trial or whether it had decided to allow those motions to be denied by operation of law. Regardless, the trial court refused to entertain arguments on the petitioners’ motion for a remittitur at the December 16 hearing, and on December 19, 2005, it denied the plaintiffs’ motion for an additur. On December 21, 2005, the 91st day after each party had filed its postjudgment motion, all remaining motions were denied by operation of law. See Rule 59.1, Ala. R. Civ. P. At that point, with no motions pending seeking either to increase or decrease the amount of the judgment, the evidence otherwise necessary to either defend or attack those motions ceased to be relevant. Thus, the very basis of the plaintiffs’ postjudgment discovery motion evaporated.

The plaintiffs nevertheless filed with this Court a motion seeking an extension of time for the trial court to rule upon all postjudgment motions. We denied that motion and instead ordered supplemental answers from the parties explaining whether the discovery order had become moot.

In their response the plaintiffs clearly concede that the discovery order has become moot. Therefore, we grant the petition directing the Mobile Circuit Court to vacate its discovery order as moot.

PETITION GRANTED; WRIT ISSUED.

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

      . See Hammond v. City of Gadsden, 493 So.2d 1374 (Ala.1986), and Green Oil Co. v. Hornsby, 539 So.2d 218 (Ala.1989).


text:
    AmerUS LIFE INSURANCE COMPANY v. Bobby Ray SMITH et al.
    1041054.
    Supreme Court of Alabama.
    Feb. 24, 2006.

      Charles A. Dauphin and Elizabeth W. McElroy of Baxley, Dillard, Dauphin, McKnight & Barclift, Birmingham, for appellant.
    Michael K. Beard of Marsh, Rickard & Bryan, P.C., Birmingham, for appellees.
   HARWOOD, Justice.

AmerUs Life Insurance Company appeals by permission, pursuant to Rule 5, Ala. R.App. P., from the denial of its motion for a summary judgment. We affirm.

Facts and Procedural History

In 1987, AmerUs, then known as Central Life Assurance Company, sold two life insurance policies to Precision Husky Corporation. Both policies were “flexible premium adjustable” key-man insurance policies insuring the life of Bobby Ray Smith, who was at that time the president of Precision Husky. Policy number 2628304 originally carried a face value of $3,000,000, which was later increased to $3,500,000; policy number 2630415 carried a face value of $500,000. Ownership of each policy was eventually transferred to Smith’s wife, as trustee of the Bobby Ray Smith Family Trust.

According to the averments of the complaint subsequently filed by Smith, Precision Husky, and the Bobby Ray Smith Family Trust (collectively “the plaintiffs”), “during the course of selling” these life insurance policies, AmerUs, through its agents, made misrepresentations and suppressed material facts regarding the premiums necessary to keep the policies in force. Specifically, according to the plaintiffs, AmerUs and its agents used “projections” and “illustration statements” to falsely represent that the premiums on those key-man policies would remain “level” during the 42-year period during which the premiums were due. According to the plaintiffs, AmerUs knew that the premiums would eventually be raised.

On November 1, 2002, the plaintiffs sued AmerUs, alleging misrepresentation, suppression, negligent/wanton hiring, training, or supervising, and breach of contract. They specifically alleged that in agreeing to purchase the policies they had relied upon the representations and suppressions made by AmerUs. On August 3, 2004, AmerUs filed a motion for a summary judgment and a brief supporting that motion. In its brief, AmerUs contended that the plaintiffs’ claims were precluded by the doctrines of res judicata and collateral es-toppel because, AmerUs asserted, those claims had already been fully adjudicated in a class action brought in the United States District Court for the Northern District of California, Bhat v. AmerUs Life Insurance Co., No. 96-4627 (N.D.Cal.1999). On March 31, 2005, the trial court denied AmerUs’s motion for a summary judgment. AmerUs petitioned this Court for permission to appeal, presenting five controlling questions of law to be answered if we granted permission to appeal. We granted permission to appeal as to only one of those questions:

“Whether the [plaintiffs’ claims are barred by res judicata, collateral estop-pel and release as a result of the class action previously filed, settled, and still pending in the United States District Court for the Northern District of California, Bhat v. AmerUs Life Ins. Co.”
Standard of Review
“This Court reviews a summary judgment de novo. Turner v. Westhampton Court, L.L.C., 903 So.2d 82, 87 (Ala.2004). We seek to determine whether the movant has made a prima facie showing that there exists no genuine issue of material fact and has demonstrated that the movant is entitled to a judgment as a matter of law. Turner, supra. In reviewing a summary judgment, this Court reviews the evidence in the light most favorable to the nonmov-ant. Turner, supra. Once the movant makes a prima facie showing that he is entitled to a summary judgment, the burden shifts to the nonmovant to produce ‘substantial evidence’ creating a genuine issue of material fact. Ala. Code 1975, § 12-21-12; Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). ‘Substantial evidence’ is ‘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 Fla., 547 So.2d 870, 871 (Ala.1989).”

Muller v. Seeds, 919 So.2d 1174, 1176-77 (Ala.2005).

Analysis

Bhat v. AmerUs Life Insurance Co., the class action AmerUs contends precludes the plaintiffs’ action, was settled in 1999. Upon settlement of that class action, the plaintiffs, as members of the class, were notified of their rights: do nothing and thereby remain in the class and accept the settlement; object to the settlement; or opt out of the settlement. They were provided a copy of the settlement agreement between AmerUs and the class representatives, which itself included a “Release and Covenant Not to Sue” (“the release”). The release admonished all prospective class members to read it carefully because it would “affect your rights if you remain in the class.” The plaintiffs did not opt out of the class and were subsequently notified that their settlement payment had been credited to their policy account. By accepting the settlement, the plaintiffs bound themselves to the terms of the release, which was eventually made a part of the district court’s “Final Order and Judgment.” The release provided, in pertinent part:

“1. Release of Claims. Effective upon the Final Settlement Date, Plaintiff and each and every Class Member hereby expressly agree that neither they nor any [other] persons ... shall now or hereafter institute, maintain or assert against AmerUs ..., either directly or indirectly, on their own behalf ..., and that they forever release and discharge [AmerUs] from, any and all causes of action, claims, damages, equitable, legal and administrative relief, interest, demands or rights ..., whether known or unknown, whether based on federal, state or local statute, ordinance, regulation, contract, common law or any other source, that have been, could have been, may be or could be alleged or asserted now or in the future by ... any Class Member against [AmerUs] ... on the basis of, connected with, arising out of, or relating to, in whole or in part, any of the following (all of which acts, omissions, facts, matters, transactions, occurrences and representations are collectively referred to as the ‘Released Transactions’):
“a. Any or all of the acts, omissions, facts, matters, transactions, breaches, occurrences or representations that have been, could have been, may be or could be directly or indirectly alleged, asserted, described, brought, set forth or referred to in the Lawsuit [against AmerUs], including without limitation:
“(1) Any or all of the acts, omissions, facts, matters, transactions or occurrences, or any oral or written statements or representations or illustrations made or given at or after the issuance of the Policies, in connection with or directly or indirectly relating to (A) the amount of or calculation of account values or cash values, (B) the deduction of cost of insurance charges or other charges, (C) the crediting (or failure to credit) interest or dividends to Policies, (D) any changes or adjustments in such deductions and/or interest crediting (relating to or in connection with [a federal tax not here at issue] or for any other reason) and any need for increased premiums or additional premiums as a result of such changes or adjustments, or (E) any other matters relating to or affecting account values, cost of insurance rates, credited interest, dividends, and/or policy values; and/or
“(3) Any claim alleging that Ame-rUs made inaccurate or misleading disclosures and/or omitted to make disclosures to its policyowners concerning account values, cash values, cost of insurance charges or changes thereto, or interest credits to or in connection with the Policies .... ”
The release further provided:
“4. Unknown Claims. In connection with this Release, Plaintiff and the Class Members acknowledge that they are aware that they may hereafter discover claims or damages presently unknown or unsuspected, or facts in addition to or different from those which they now know or believe to be true with respect to the Released Transactions and all claims released herein. Nevertheless, it is the intention of Plaintiff and the Class Members in executing this Settlement Agreement and in consideration of receiving the Settlement Payments hereunder to fully, finally and forever to [sic] settle and release all such matters, and all claims relating thereto, which exist, hereafter may exist, or might have existed (whether or not previously or currently asserted in any actions).... ”

AmerUs contends that the plaintiffs’ claims fall within the claims described in paragraphs l.a.(l) and l.a.(3) of the release. Specifically, AmerUs asserts that the plaintiffs’ claims relate to

“(A) the amount of or calculation of account or cash values, (B) the deduction of cost of insurance charges, (C) the failure to credit interest, and (D) the changes to the deductions and credits and the need for increased premiums as a result Further, [the plaintiffs’] suppression claim is clearly a claim connected with the allegation that AmerUs ‘omitted to make disclosures to its policyholders concerning account values, cash values, cost of insurance charges or changes thereto and interest credits to or in connection with the Policies.’ ”

(AmerUs’s brief, at 21; emphasis in original.) This quoted excerpt from the brief is the extent of AmerUs’s explanation as to why the plaintiffs’ claims fall within the description of transactions released by the class members in Bhat. The plaintiffs respond with similar generality, stating only (1) that the claims released by the class members in Bhat were those occurring “at or after the issuance of the Policies” or involving “policyholders,” and noting that they allege that the misrepresentations to them were made before the issuance of the key-man policies, and (2) that their fraud claims are less specific than the claims released by the members of the Bhat class.

The quotation from AmerUs’s brief set forth above contains five reasons the plaintiffs’ claims allegedly fall within the release incorporated into the final order in Bhat. The first four of those reasons, delineated as (A), (B), (C), and (D), are all derived from paragraph l.a.(l) of the release. As the plaintiffs correctly note, however, that subsection specifically relates only to “oral or written statements or representations or illustrations made or given at or after the issuance of the Policies.” (Emphasis added.) The “projection statements” and “illustrations” about which the plaintiffs complain were allegedly made in the course of negotiations for the policies, i.e., before the policies were issued, not “at or after” the issuance of those policies.

AmerUs, in its reply brief, essentially concedes that the language in the release describing the claims released thereby refers only to representations occurring “at or after” the policies were issued. It argues, however, that a recital within the settlement agreement demonstrates that Bhat covered more than acts occurring “at or after” issuance of the policies. Specifically, AmerUs, quoting from Recital C of the settlement agreement, states:

“[I]n summarizing the fraud claims in Bhat the settlement documents state: ‘Plaintiff further claims that Defendants made inadequate or misleading disclosures’ regarding the cost of insurance charges and interest credits.”

(AmerUs’s reply brief, at 5.) This recital, AmerUs argues, indicates that the fraud claims alleged in Bhat were “not limited in time.” (AmerUs’s reply brief, at 5.)

Assuming, for the sake of further analysis, that the recital quoted by AmerUs — as opposed to the release specifically describing the released claims — determines the scope of the settlement agreement in Bhat, AmerUs’s assertion is nevertheless incorrect. Recital C further provides, in pertinent párt:

“The [Bhat ] Lawsuit alleges that [AmerUs] ... made improper charges or failed to make credits to certain of its universal life policies, all of which had a negative impact on the account and cash values of those universal life policies. It is alleged that these improper charges resulted from improper increases to the cost of insurance and cost of insurance rates, and that these inadequate credits resulted from improper reduction's in or the failure to credit interest or dividends, all in violation of the terms of these universal life policies. Among other things; [Bhat] claimed that [AmerUs] improperly passed on increased tax expenses that were incurred by [it] as a result of Congress’ 1990 passage of the Deferred Acquisition Cost Tax (the ‘DAC Tax’) through increased cost of insurance charges 'and reduced interest and dividend credits to [AmerUs’s] universal life policyowners. [Bhat] further claims that [AmerUs] made inadequate or misleading disclosures concerning the foregoing, and that [AmerUs] transmitted such disclosures by mail and wire.”

This excerpt from Recital C describes three separate acts of wrongdoing allegedly committed by AmerUs in Bhat: (1) it improperly increased its insurance rates and costs; (2) it improperly reduced or refused to credit interest and dividends; and (3) it passed on increased tax expenses AmerUs incurred as a result of a new federal tax. Each of those alleged wrongful acts occurred after the issuance and receipt of the insurance policies. After setting forth the alleged wrongdoing, the recital states what AmerUs only partially quotes: “Plaintiff further claims that [AmerUs] made inadequate or misleading disclosures concerning the foregoing.” (Emphasis added.) In other words, the “inadequate or misleading disclosures” concerned conduct AmerUs had allegedly engaged in subsequent to issuing policies to the Bhat plaintiffs. Thus, even giving consideration to AmerUs’s argument that a recital should trump an express release, its argument must fail. Further, because the release relates only to wrongdoing occurring “at or after” the issuance of insurance policies and the instant action alleges wrongdoing before the issuance of insurance policies, the first four “reasons” asserted by AmerUs to indicate that this action is identical to Bhat are meritless.

AmerUs lastly argues that the essence of the plaintiffs’ action is that AmerUs “omitted to make disclosures to its policyholders concerning account values, cash values, cost of insurance charges or changes thereto and interest credits to or in connection with the Policies.” (Ame-rUs’s brief, at 21, paraphrasing paragraph l.a.(3) of the release.) This argument must also fail, because at the time AmerUs allegedly “omitted to make disclosures,” i.e., fraudulently suppressed material facts, the plaintiffs were not “policyholders.” Rather, they were at most “prospective policyholders.”

In accepting the Bhat settlement, the plaintiffs agreed to release AmerUs from all claims they could assert against it, so long as those claims were “on the basis of, connected with, arising out of, or relating to, in whole or m part, the released claims. Obviously, that release did not cover other matters unrelated to the subject of the Bhat class action. The instant action brought by the plaintiffs against AmerUs does not appear to fall within the description of the claims barred by the release. Therefore, AmerUs has failed to make the required showing that it was entitled to a summary judgment on whether the plaintiffs’ claims were precluded by the Bhat settlement; thus, the trial court did not err in denying AmerUs’s motion.

Conclusion

The order of the trial court denying AmerUs’s motion for a summary judgment is affirmed.

AFFIRMED.

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

      . Bhat is not a published opinion.


text:
    Dianna BYRD v. CITY OF CITRONELLE.
    1041789.
    Supreme Court of Alabama.
    March 3, 2006.

      John W. Parker, Mobile, for appellant.

      Mark J. Everest of Galloway, Smith, Wettermark & Everest, LLP, Mobile, for appellee.
   HARWOOD, Justice.

Dianna Byrd, a resident of the City of Citronelle (“the City”), appeals from a summary judgment entered in the City’s favor. We affirm.

Facts and Procedural History

Byrd owns and resides at a house located at 19000 Prine Road, within the city limits of the City. Immediately south of Prine Road, within the City’s right-of-way, a drainage ditch runs across the northernmost portion of Byrd’s property. Immediately east of Byrd’s property lies the property of Kenneth and Tammy Bussen. The ditch also runs across their property. The ditch is designed to cause water to flow in a northeasterly direction and receives water not only from Byrd’s property and the Bussens’ property, but also from areas north and west of Prine Road.

Byrd asserts the following course of events: In 1987, she discovered that excess rainwater was beginning to puddle at a point of low elevation at the northeast corner of her property. The “puddle” was apparently of such size and character and remained standing on the property for such a period of time that it began to attract mosquitoes and other insects and to emit a foul odor. Although Byrd concedes that this puddle did not constitute a “flood” that had encroached onto her property, she did consider it a nuisance, and she voiced a complaint to the city council not long after she noticed the insects and odor, blaming the “puddle” on debris that had collected in the ditch and requesting that the ditch be cleaned. There is no indication in the record whether the City took any remedial action in response to Byrd’s complaint or whether the problems abated or continued in the aftermath of her complaint.

By 1997, the ditch had begun to “back up” frequently, so that after an excessive rain Byrd’s property would flood. Each time the water receded, it carried with it some topsoil from her property, thus slowly causing her property to erode. That year, Byrd again complained to the city council, which assured Byrd that it would take action to correct the problem. According to Byrd, however, it did not do so.

On March 8, 2001, apparently after yet another entreaty from Byrd, the City sought the services of an engineer to correct the flooding problem on Byrd’s property. On March 20, 2001, RDA Service Company, Inc. (“RDA”), proposed to the City that it would correct the drainage problems on Byrd’s property by “fillfing] the existing ditch to grade and allowing] water to run off as expected with no standing water in the ditch after rainfall.” In April 2001, the City approved RDA’s proposal, and RDA began and completed the work. As the City explains the repairs in its brief, “RDA was simply putting the dirt ditch back to its original grade so that it would drain more efficiently. As with any dirt ditch, over the years, it developed low areas and high areas that would allow for standing water.” (City’s brief at 12.) Byrd likewise asserted in her affidavit filed in opposition to the City’s motion for a summary judgment that the work done by RDA “only included the dumping of red clay into the bottom of the ditch, so that any flooding in December, 2002 was red water.”

On December 5, 10, 19, 23, and 31, 2002, floodwaters entered Byrd’s property. On January 8, 2003, pursuant to Ala.Code 1975, § 11-47-192, Byrd filed with the City’s clerk a sworn “statement of claim” recounting the five floods on her property that had occurred during the previous month and claiming damages for those incidents. On January 16, 2003, she sued the City and RDA, alleging in her complaint that the City was liable for negligent design, construction, and/or maintenance of the ditch; gross negligence; continuing trespass; and continuing nuisance; and that RDA was liable for negligent design, construction, or maintenance of the ditch. Byrd specifically alleged that the negligence of the City “in failing to maintain the drainage system ... has consisted of ... the allowance by [the City] of debris to be placed in and to accumulate in the [system’s] culverts and/or catch basins so that waters resulting from rainfall have been unable and continue to be unable to flow through and into the catch basins and culverts and into underground drainage systems so that the waters are diverted, directed, and channeled onto the property of [Byrd].”. Byrd arpended her complaint four times to allege the occurrence of nine floods on her property after the filing of her original complaint. None of the floods have ever encroached onto her yard as far as her house.

On December 29, 2003, RDA filed a motion for a summary judgment, which the trial court granted on February 27, 2004. In that order the court found that the City had not hired RDA “to redesign” the ditch, that RDA had not done so, and that “there is simply no evidence” indicating that Byrd’s flooding problems “were exacerbated as a result of RDA’s work.” Byrd has not appealed that summary-judgment order, and it constitutes a part of the “law of the case.” On April 4, 2005, the City filed a motion for a summary judgment, which the trial court granted on June 21 by an order reading:

“[The City] seeks a summary judgment in its favor requiring the dismissal of [Byrd’s] claims. The record does not reveal that work performed in April, 2001 made the flooding problem worse. Therefore, it is apparent the flooding of Plaintiffs property results from defects in the initial design or construction of the subject ditch. Negligent design/construction claims are barred by the two year statute of limitations. The record does not indicate that negligent maintenance causes or contributes to the flooding, except by the conclusory affidavit of Kenny Underwood,[] which provides no explanation of what specific facts he used to form his opinion. The negligent maintenance claims are not barred by the statute of limitations, but are not supported by sufficient evidence.”

Byrd then filed a Rule 59(e), Ala. R. Civ. P., motion to alter, amend, or vacate this summary judgment, which the trial court denied. Byrd appeals only with respect to her claims against the City alleging negligent design, construction, and/or maintenance of the ditch.

Standard of Review

“This Court reviews a summary judgment de novo. Turner v. Westhampton Court, L.L.C., 903 So.2d 82, 87 (Ala.2004). We seek to determine whether the movant has made a prima facie showing that there exists no genuine issue of material fact and has demonstrated that the movant is entitled to a judgment as a matter of law. Turner, supra. In reviewing a summary judgment, this Court reviews the evidence in the light most favorable to the nonmov-ant. Turner, supra. Once the movant makes a prima facie showing that he is entitled to a summary judgment, the burden shifts to the nonmovant to produce ‘substantial evidence’ creating a genuine issue of material fact. Ala.Code 1975, § 12-21-12; Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). ‘Substantial evidence’ is ‘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 Fla., 547 So.2d 870, 871 (Ala.1989).”

Muller v. Seeds, 919 So.2d 1174, 1176-77 (Ala.2005).

Analysis

I. Negligent-Design and Negligent-Construction Claims

Like Byrd, the plaintiffs in Reichert v. City of Mobile, 776 So.2d 761 (Ala.2000), alleged in their action against the City of Mobile negligent design, negligent construction, and negligent maintenance of a drainage ditch. With respect to the plaintiffs’ allegations of negligent design and negligent construction, the Court applied the well-settled law that negligent design or construction of a drainage ditch is considered to be a permanent condition that is not abatable. 776 So.2d at 764-65 (quoting Harris v. Town of Tarrant City, 221 Ala. 558, 560, 130 So. 83, 84-85 (1930)). As this Court stated in Harris, “for an injury by a permanent and unabatable condition the damages are estimated on the hypothesis of an indefinite continuance of the nuisance.... In such event, one may not recover in successive suits, but his damages are awarded in solido in one action.” 221 Ala. at 560, 130 So. at 84. Thus, in Reichert, this Court held that because the plaintiffs’ negligent-construction and negligent-design claims were brought more than two years after the first postconstruction flood, the statutory limitations period had run as to those claims.

In the instant action, the trial court’s order granting the City’s summary-judgment motion adopted the reasoning in Reichert in ruling that Byrd’s negligent-design and negligent-construction claims were barred by the statute of limitations. Byrd argues that the court erred in reaching this conclusion, contending:

“Based on the [City’s] narrative summary of undisputed facts, the drainage problems were to be corrected by RDA in April, 2001. [Byrd’s] first flood after that work was December, 2002 and the suit was filed in January, 2003, all within two years of the first flood subsequent to the design or construction occurring April, 2001 and, accordingly, within the appropriate statute of limitations set forth by Reichert.”

(Byrd’s brief at 21.) Byrd’s argument would be wholly correct if RDA’s work in April 2001 constituted “design or construction.” Byrd considers this characterization of RDA’s work as fair “[b]ased on the [City’s] narrative summary of undisputed facts.” Yet a review of that feature of the City’s summary-judgment motion reveals that the City did not so characterize RDA’s work. Rather, the City’s narrative summary of material facts in support of its motion states only the following with respect to RDA’s work:

“6. In March of 2001, RDA submitted a proposal to the City of Citronelle regarding drainage problems with the Prine Road drainage ditch. (Proposal of [RDA], dated March 20, 2001-Exhibit A).
“7. The [City] accepted RDA’s proposal on April 12, 2001 and authorized it to perform work on the Prine Road drainage ditch. ([Mayor Rannel] Pres-nell depo., p. 15-16).”

The portion of Mayor Rannel Presnell’s deposition cited in the quoted portion of the City’s narrative summary of undisputed facts and properly submitted as an exhibit to its summary-judgment motion does not in any way suggest that RDA’s work constituted “construction” or “design.”

RDA’s proposal, also cited by the City in the above-quoted portion of its narrative summary, contains one sentence that, one could argue, suggests that perhaps its work on the drainage ditch in fact constituted “construction.” The proposal sets forth six “bullet points” detailing the work it proposed to do. The fifth “bullet point” states:

“•[RDA] will re-adjust all existing driveway piping to the correct elevations.
“The [City] shall furnish HDPE Pipe for any drives needing replacement^] [t]here is one drive with existing concrete pipe that will need to be replaced.
“The [City] will seed and mulch all disturbed areas caused by construction efforts.”

As noted, Byrd asserted in her affidavit that all RDA did was to dump red clay in the bottom of the ditch. She similarly characterizes that work in her brief, asserting that it “resulted] in red clay being brought to fill the bottom of the ditch.” (Byrd’s brief at 11.) Importantly, concerning RDA’s proposal regarding replacement of pipe “for any drives needing replacement,” Byrd states in her brief that “[i]n fact, the concrete culverts were not replaced” and asserts that the flooding problem is attributable in part to “the lack of removal of the restrictive driveway pipes.” (Byrd’s brief at 11-12, 17.) Even viewing, as we must, the facts in the light most favorable to Byrd, Turner v. Westhampton Court, L.L.C., 903 So.2d 82, 87 (Ala.2004), the only reasonable inferences that can be drawn from this body of evidence is that no new “design or construction” took place in connection with RDA’s work in 2001. Rather, the City has made an unrebutted showing that the design and construction of the ditch took place well before 2001, probably well before 1987. The first postconstruction flood evidenced in the record occurred no later than 1997, which means that the statute of limitations ran no later than 1999, nearly four years before Byrd filed her action. Therefore, we conclude that the statute of limitations bars Byrd’s negligent-design and negligent-construction claims against the City and that the trial court’s summary judgment for the City in that regard is due to be affirmed.

II. Negligent-Maintenance Claim

Byrd also challenges the summary judgment for the City on her claim alleging negligent maintenance of the ditch. As noted, the trial court ruled that Byrd failed to present substantial evidence indicating that the City had negligently maintained the ditch.

In her brief on appeal, Byrd points to four items of evidence that she argues support this claim. First, she cites her own affidavit, but it merely asserts that her property flooded on various occasions, without attempting to assign any cause or describe any omitted, or negligently performed, maintenance of the ditch by the City.

Byrd also cites RDA’s proposal; it does indicate that RDA was to perform work on the ditch that could be fairly characterized as constituting “maintenance.” Thus, we conclude that RDA’s proposal constitutes substantial evidence in support of' the proposition that the City assumed a duty to adequately maintain the ditch. We find nothing in that document, however, indicating that the City breached that duty.

The third piece of evidence cited by Byrd as constituting substantial evidence indicating that the City breached its duty to maintain the ditch is a two-page excerpt from the deposition testimony given by Mayor Presnell in a separate case, brought by the Bussens against the City; Byrd attempted belatedly to submit the excerpt to the trial court in connection with a letter brief tendered after the City’s summary-judgment motion had been argued and submitted. The trial court was certainly entitled to disregard that submission as untimely under Rule 56(c)(2), Ala. R. Civ. P., and nothing in the record indicates that it considered it. Even assuming that the trial court chose to consider it, however, this deposition excerpt fails to evidence any breach of duty by the City. Rather, Mayor Presnell’s excerpted testimony established only that the ditch was cleaned and/or maintained as necessary.

The primary evidence upon which Byrd relies with respect to her negligent-maintenance claim is the affidavit of Kenneth Underwood, a professional engineer retained by Byrd as an expert witness. Underwood names three specific circumstances that he alleges evidence a breach of the City’s duty to adequately maintain the ditch: (1) obstructions in the ditch, (2) obstruction of the driveway pipes, and (3) improper sloping of the ditch. Underwood does not, however, explain these deficiencies in any detail whatsoever, nor does he suggest the proper remedial action. He simply asserts in a conclusionary fashion that for there to be proper drainage, the ditch “must be free and clear of obstructions [and] must be maintained on a regular basis,” and he asserts that there is “lack of maintenance of the ditch.” Underwood does not identify anything the City has done or failed to do that would constitute lack of maintenance. He does not say that he ever observed any “obstructions” in the ditch, and he does not explain the nature or location of any obstructions, other than to say that water backed up “due to the obstructions in the ditch ... and obstructions of the driveway pipes along the ditch.” As noted, the only averments in Byrd’s complaint relating to something in the nature of an obstruction reference the accumulation of debris in culverts and catch basins.

In Locke v. City of Mobile, 851 So.2d 446 (Ala.2002), we explained as follows with respect to a claim alleging negligent maintenance of a drainage system by the City of Mobile:

“In order to prevail on its motion for a summary judgment, the City was not required to prove that the flooding was not a result of its negligent maintenance. See Ex parte General Motors Corp., 769 So.2d 903, 909 (Ala.1999).
“ ‘ “If the burden of proof at trial is on the nonmovant, the movant may satisfy the Rule 56[, Ala. R. Civ. P.,] burden of production either by submitting affirmative evidence that negates an essential element in the non-movant’s claim or, assuming discovery has been completed, by demonstrating to the trial court that the nonmovant’s evidence is insufficient to establish an essential element of the nonmovant’s claim.” ’
“Id. (quoting Justice Houston’s special concurrence in Berner v. Caldwell, 543 So.2d 686, 691 (Ala.1989), overruling Berner and adopting Justice Houston’s special concurrence in Berner as the accurate statement of the law) (emphasis omitted). The City, as previously noted, submitted excerpts from the depositions of Locke and her engineering expert that sufficiently discharged its, burden by demonstrating the insufficiency of Locke’s evidence on the essential element of her claim — negligent maintenance as the proximate cause of the .flooding. The burden then shifted to Locke to present substantial evidence indicating that the flooding was proximately caused by the City’s negligent maintenance. Reichert [v. City of Mobile], 776 So.2d [761,] 765-66 [(Ala.2000)]. The issue on appeal is whether Locke presented substantial evidence showing that the City’s alleged negligent failure to maintain the drainage system in her neighborhood proximately caused the flooding of her property.”

851 So.2d at 448-49. In Locke (in which, we note, Underwood was also the proffered expert engineer), this Court explained that an expert’s personal observation of a deficient condition, by itself, is insufficient to oblige this Court to reverse a summary judgment for a city on a negligent-maintenance claim. Rather, we expressed a desire to see evidence from that expert indicating that the city was derelict in responding to a condition of which it had been made aware. 851 So.2d at 451-52. For instance, we stated that an obstruction in a ditch “does not necessarily mean negligent maintenance”; rather, the obstruction could simply indicate “the sudden and unforeseeable deposit of some foreign object or material.” 851 So.2d at 450.

In this case, none of the conditions discussed by Underwood indicates negligent maintenance, because none is described with such specificity that we can infer negligence on the part of the City. Although Underwood’s affidavit does emphasize that he has inspected Byrd’s property on more than one occasion and that he has “reviewed photographs of flooding” of her property, he does not offer even approximate dates on which those inspections took place. He does not say what he observed on any occasion. Ultimately, Underwood’s affidavit merely stands for the proposition that, for reasons that remain unexplained, he believes that there is inadequate drainage of the ditch on Byrd’s property “[d]ue to the lack of maintenance of the ditch and the lack of proper slope of the ditch along with the restrictive driveway culverts installed on the City of Citronelle right-of-way.” The latter two conditions are clearly matters of design or construction. All of this evidence indicates the existence of conditions having the potential to cause flooding, but, without more, it is not substantial evidence indicating any negligence by the City in maintaining the ditch. The trial court noted in its summary-judgment order in favor of the City that “the conclu-sory affidavit of Kenny Underwood, which provides no explanation of what specific facts he used to form his opinion,” constitutes Byrd’s only evidence of negligent maintenance, and it does not constitute substantial evidence in that regard. Therefore, the trial court was correct in entering a summary judgment for the City on Byrd’s negligent-maintenance claim.

Conclusion

The summary judgment for the City on Byrd’s claims alleging negligent design, construction, and/or maintenance of the drainage ditch is affirmed.

AFFIRMED.

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

      . A reasonable inference from Byrd’s deposition testimony is that this point of low elevation was a part of the ditch.

      . Kenneth Underwood is a professional engineer retained by Byrd as an expert witness.


author: BRYAN, Judge.

text:
    T.G. v. ETOWAH COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2040658.
    Court of Civil Appeals of Alabama.
    Dec. 16, 2005.
    Rehearing Denied Feb. 24, 2006.
    Shannon L. Millican, Gadsden, for appellant.
    Troy King, atty. gen., and Sharon E. Ficquette and Lynn S. Merrill, asst, attys. gen., for appellee.
   BRYAN, Judge.

T.G. (“the mother”) appeals a judgment terminating her parental rights regarding her minor children, B.N.C., A.C.G., and A.B.C. The Etowah County Department of Human Resources (“DHR”) moves this court pursuant to Rule 1(b), Ala. R. Juv. P., to dismiss the mother’s appeal for failure to timely file a notice of appeal. We grant DHR’s motion and dismiss the mother’s appeal.

On October 18, 2004, DHR petitioned the juvenile court to terminate the mother’s parental rights, and the juvenile court held an evidentiary hearing regarding DHR’s petition on February 2, 2005. On March 28, 2005, the juvenile court entered a final judgment terminating the mother’s parental rights regarding B.N.C., A.C.G., and A.B.C. The mother then moved the juvenile court to alter, amend, or vacate the judgment pursuant to Rule 59(e), Ala. R. Civ. P. The mother’s postjudgment motion states: “Respectfully submitted this the 6th day of April, 2005.” (Emphasis added.) However, the clerk stamped “Filed April 15 2005” (emphasis added) on the mother’s postjudgment motion and entered it on the case action summary sheet on April 15, 2005. The juvenile court judge wrote on the mother’s motion: “Motion denied on 4/15/05. Mother has 14 days from today to file appeal, /s/ W.D. Russell.” The clerk entered the juvenile court judge’s ruling on the mother’s post-judgment motion on the case action summary sheet on April 15, 2005. The mother subsequently filed a notice of appeal on April 20, 2005.

DHR argues that the mother’s post-judgment motion did not toll the 14-day period for the mother to file a notice of appeal because, DHR says, the post-judgment motion was filed on April 15, 2005, more than 14 days after the entry of the final judgment on March 28, 2005. Therefore, DHR argues, the mother’s notice of appeal was not timely filed on April 20, 2005, more than 14 days after the entry of the final judgment on March 28, 2005.

The mother, on the other hand, argues that she filed her postjudgment motion on April 6, 2005, by placing the motion in the clerk’s “in box” on April 6, 2005. She argues that despite her placing her post-judgment motion in the “in box” on April 6, 2005, the juvenile court clerk failed to stamp the motion “filed” and to note its filing on the case action summary until April 15, 2005. (The mother also argues that the clerk has occasionally failed to timely enter various other pleadings and motions.) Thus, the mother argues that she filed her postjudgment motion within 14 days of the entry of the final judgment and, therefore, that it tolled the 14-day period to file a notice of appeal until the trial court denied her postjudgment motion on April 15, 2005. Accordingly, the mother argues, her April 20, 2005, notice of appeal was timely. As an addendum to her brief to this court, the mother attached a memorandum of the clerk’s filing procedures. Paragraph 1 of the memorandum states, in pertinent part: “All motions, pleadings, papers, [and] documents to be filed shall be placed in the appropriate filing box along with the proper filing fees.... The filing box will be stamped at the end of every day.” However, although the mother argues that she placed her postjudgment motion in the clerk’s “in box” on April 6, 2005, she did not submit an affidavit or any other evidence establishing that she placed her postjudgment motion in the clerk’s “in box” on April 6, 2005.

On October 3, 2005, Billy Yates, the clerk of the Etowah Circuit Court, submitted affidavits of two employees, Kay McClendon and Denice Williams, in response to the mother’s response to DHR’s motion to dismiss. The affidavit of McClendon, who serves as the appeals clerk for the Etowah Juvenile Court, is not pertinent because it does not address the date the postjudgment motion was filed. However, Williams, the clerk who processes pleadings and orders for the Etowah Juvenile Court, stated in her affidavit that all notices, pleadings, and orders are “stamped filed the day they are received in the clerk’s office.”

In the case now before us, the mother did not submit an affidavit or any other evidence establishing that she filed her postjudgment motion on April 6, 2005. However, Williams’s affidavit established that the mother filed her postjudgment motion on April 15, 2005. Therefore, the evidence established that the mother filed her postjudgment motion on April 15, 2005.

Because the mother did not file the April 15, 2005, postjudgment motion within 14 days after the entry of the March 28, 2005, final judgment, the postjudgment motion did not toll the time for filing a notice of appeal. See § 26-17-20(b), Ala. Code 1975; Rule 1(B), Ala. R. Juv. P. (“All post-judgment motions ... must be filed within 14 days after entry of judg-ment_”); Rule 4(a)(3), Ala. R.App. P.; and State Dep’t of Human Res. v. I.P., 874 So.2d 1121, 1123 (Ala.Civ.App.2003). Furthermore, the juvenile court’s April 15, 2005, notation on the mother’s post-judgment motion stating that the mother could file a notice of appeal within 14 days after the entry of that ruling did not extend the mother’s time to file a notice of appeal.

“ ‘In the absence of statutory authorization, neither the trial nor appellate courts may extend or shorten the time for appeal ... even to relieve against mistake, inadvertence, accident, or misfortune ....’”

Meeks v. State Farm Mut. Auto. Ins. Co., 286 Ala. 513, 515, 243 So.2d 27, 28 (1970) (quoting Hanley v. Hanley, 23 Cal.2d 120, 142 P.2d 423, 149 A.L.R. 1250, 1261-67 (1943)); accord Melson v. State, 902 So.2d 715, 719 (Ala.Crim.App.2004). Therefore, the mother’s April 20, 2005, notice of appeal is untimely. State Dep’t of Human Res., supra. Accordingly, we grant DHR’s motion and dismiss the mother’s appeal'.

APPEAL DISMISSED.

CRAWLEY, P.J., and THOMPSON, PITTMAN, and MURDOCK, JJ., concur.