author: PER CURIAM.

text:
    April MACK, as the mother of Baby Mack v. Thomas CARMACK.
    1091040.
    Supreme Court of Alabama.
    Sept. 9, 2011.
    John Thomas Stamps III of The Stamps Law Group, L.L.C., Bessemer, for appellant.
    Michael S. Burroughs, Tuscaloosa, for appellee.

      Another brief was filed by Edward C. Hixon of Slaton & O’Connor, P.C., Montgomery, on behalf of appellee Matthew Taul.
   PER CURIAM.

April Mack (“Mack”), the mother of Baby Mack, appeals from a summary judgment entered by the Jefferson Circuit Court in her action against Thomas Car-mack and Matthew Taul for the wrongful death of her unborn child, known in this litigation as “Baby Mack.” We reverse and remand.

I. Facts and Procedural Histoi"y

On September 13, 2007, Mack was 12 weeks pregnant. On that date, Mack and her fiancé Reginald Thomas, the father of Baby Mack, needed to go to the grocery store, but they were without transportation. Mack contacted Thomas Carmack and asked him to take her and Thomas to the grocery store. Carmack agreed to do so after Mack offered to pay for the trip.

Carmack picked up Mack and Thomas and proceeded to drive to a local grocery store. Carmack’s vehicle was traveling west on First Avenue North in Birmingham when he stopped at a red light at the intersection of that road and 65th Street North. Matthew Taul’s vehicle was traveling east on First Avenue North. In his deposition in this case, Carmack testified that he knowingly proceeded to turn left even though the traffic light was red. He stated that he knew it was a violation of the law to do so and that he in fact saw vehicles opposite him at the intersection, i.e., that were traveling in the opposite direction. He further stated, however, that he assumed he could make the left turn because these vehicles appeared to be stopped. When Carmack turned, however, Taul’s vehicle proceeded through the intersection and hit the passenger side of Car-mack’s vehicle. The force of the collision caused severe damage to Carmack’s vehicle and injuries to Mack and Thomas.

Mack and Thomas were transported by ambulance to the University of Alabama at Birmingham Hospital for emergency treatment. Both suffered severe injuries requiring medical treatment. On September 18, 2007, while hospitalized as a result of the collision, Mack suffered a miscarriage that resulted in Baby Mack’s death.

On November 15, 2007, Mack and Thomas filed an action against Carmack and Taul alleging negligence and wantonness and seeking recovery for their injuries. In addition, Mack filed a wrongful-death claim on behalf of Baby Mack. Discovery was conducted that included depositions of the involved parties.

On August 10, 2009, Mack, on behalf of Baby Mack, filed a motion for a summary judgment as to the wrongful-death claim against Carmack. In a hearing on the motion, the trial court denied Mack’s motion for a summary judgment and entertained an oral motion for a summary judgment from Carmack. On September 30, 2009, the trial court entered an order granting Carmack’s motion for a summary judgment on the wrongful-death claim. The order provided, in pertinent part:

“The issue before the Court is whether a nonviable fetus has a cause of action for wrongful death. Plaintiffs contend that the Alabama Fetal Homicide Act, Alabama Code [§ ] 13A-6-3, et seq., defines a person as a ‘human being, including an unborn child in útero at any stage of development, regardless of viability.’
“Defendant contends that the wrongful death statute, Section 6 — 5—410, Alabama Code 1975, only allows for wrongful death of a viable fetus. See, Lollar v. Tankersley, 613 So.2d 1249 (Ala.1993).
“The Court finds that the Alabama Wrongful Death Act does not allow for a cause of action for a nonviable fetus. Therefore, plaintiffs’ Motion for Summary Judgment for the death of Baby Mack is denied. The Motion for Summary Judgment by defendant Thomas Carmack is granted on the claim for death of Baby Mack.”

On February 26, 2010, the parties notified the trial court that they had settled the remaining claims alleged in the complaint, and they requested that those claims be dismissed with prejudice. On March 15, 2010, the trial court entered an order dismissing the remaining claims with prejudice.

On April 12, 2010, Mack filed a notice of appeal from the summary judgment entered by the trial court in favor of Car-mack concerning the wrongful-death claim.

II. Standard of Revieiv

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

“ ‘A summary judgment is proper when there is no genuine issue of material fact arid the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmoving party must present “substantial evidence” creating a genuine issue of material fact — “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be. proved.” Ala.Code 1975, § 12-21-12; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).’
“Capital Alliance Ins. Co. v. Thorough-Clean, Inc., 639 So.2d 1349, 1350 (Ala.1994). Questions of law are reviewed de novo. Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala.2004).”

Pritchett v. ICN Med. Alliance, Inc., 938 So.2d 933, 935 (Ala.2006).

III. Analysis

Section 6-5-391, Ala.Code 1975, entitled “Wrongful death of minor” (“the Wrongful Death Act”), provides, in pertinent part, that “[w]hen the death of a minor child is caused by the wrongful act, omission, or negligence of any person ..., the father, or the mother ... of the minor may commence an action.” § 6-5-391 (a), Ala.Code 1975. The issue before us in this appeal is the proper application of § 6-5-391(a).

Mack concedes that, in two decisions issued by this Court in 1993 concerning wrongful-death claims arising out of the death of a fetus, this Court held that no cause of action for wrongful death exists if the fetus was not viable at the time of death. See Gentry v. Gilmore, 613 So.2d 1241, 1242 (Ala.1993) (concluding that “the Wrongful Death Act does not provide a cause of action for the death of a nonviable fetus”); and Lollar v. Tankersley, 613 So.2d 1249, 1252 (Ala.1993) (concluding that “a cause of action for death resulting from a pre-natal injury requires that the fetus attain viability either before the injury or before death results from the injury”). Largely on the basis of a recent legislative enactment, Mack now asks this Court to overrule Gentry and Lollar.

In pertinent part, the so-called “Brody Act,” Act No. 2006-419, Ala. Acts 2006, codified as Ala.Code 1975, § 13A-6-1, changed the definition of the term “person” in the article of the Alabama Code defining homicide offenses. Before its amendment in 2006, this article defined the term “person” as “a human being who had been born and was alive at the time of the homicidal act.” § 13A-6-l(2), Ala.Code 1975. As amended by the Brody Act, § 13A-6-l(a)(3), Ala.Code 1975, now defines the term “person” as “a human being, including an unborn child in útero at any stage of development, regardless of viability.” (Emphasis added.)

Mack notes that in Lollar the Court expressly declined to find a cause of action under the Wrongful Death Act for a fetus that has never attained viability “[wjithout a clearer expression of legislative intent.” Lollar, 613 So.2d at 1252-53. She argues that the legislature’s amendment to the homicide article to redefine a “person” as including “an unborn child in útero at any stage of development, regardless of viability” now provides the “clear[ ] expression of legislative intent” missing when Lollar was decided.

Carmack counters that, although the legislature changed the definition of “person” for purposes of homicide, it did not amend the Wrongful Death Act. He cites Ex parte Haynes Downard Andra & Jones, LLP, 924 So.2d 687, 699 (Ala.2005), for the proposition that “ ‘[i]t is an ingrained principle of statutory construction that “[t]he Legislature is presumed to be aware of existing law and judicial interpretation when it adopts a statute” ’ ” (quoting Ex parte Fontaine Trailer Co., 854 So.2d 71, 83 (Ala.2003), quoting in turn Carson v. City of Prichard, 709 So.2d 1199, 1206 (Ala.1998)). Carmack argues that because the legislature did not amend the Wrongful Death Act when it amended the homicide article in the criminal code, the legislature’s change in the homicide article provides no basis for overruling Collar and Gentry.

An appropriate analysis of these contending positions necessitates that we review the history in Alabama of wrongful-death claims arising out of prenatal injuries. The issue of causes of action for prenatal injuries first arose in Stanford v. St. Louis-San Francisco Ry., 214 Ala. 611, 108 So. 566 (1926). In Stanford, the Court observed that “a legal personality is imputed to an unborn child as a rule of property for all purposes beneficial to the infant after birth” and that in criminal law, because of the state’s interest in “pro-tectfing] life before birth, it is a great crime to kill the child after it is able to stir in the mother’s womb, by an injury inflicted upon the person of the mother, and it may be murder if the child is born alive and dies of prenatal injuries.” 214 Ala. at 612, 108 So. at 566. Nonetheless, the Stanford Court concluded that “[t]he authorities ... are unanimous in holding that a prenatal injury affords no basis for an action in damages, in favor either of the child or its personal representative.” Id. The reason behind this rule was the belief that “ ‘a child before birth is, in fact, a part of the mother and is only severed from her at birth.’ ” 214 Ala. at 612, 108 So. at 567 (quoting Allaire v. St. Luke’s Hosp., 184 Ill. 359, 368, 56 N.E. 638 (1900)).

In Huskey v. Smith, 289 Ala. 52, 265 So.2d 596 (1972), this Court overruled Stanford insofar as it held that a prenatal injury afforded no basis for an action in damages, noting that in doing so Alabama would “join every other jurisdiction in recognizing such a cause of action.” 289 Ala. at 54, 265 So.2d at 596. In Huskey, a woman who was seven-and-a-half months’ pregnant was a passenger in an automobile that was struck by an automobile operated by the defendant. “Five days after the accident the child she was carrying was born alive but died five days after his birth.” 289 Ala. at 53, 265 So.2d at 596. The Court concluded that the term “minor child” in the predecessor to § 6-5-391 (a) included an unborn child who was viable at the time of a prenatal injury, who thereafter was born alive, but who later died. 289 Ala. at 55, 265 So.2d at 596.

The Court observed that the reasoning in Stanford was based on the outdated “medical opinion of that day that a fetal child was a part of the mother and was not a ‘person’ until it was born.” 289 Ala. at 54, 265 So.2d at 596-97. Importantly, the Huskey Court also reasoned that

“to give further force to Stanford would give protection to an alleged tort-feasor. In Alabama, especially, this would seem anomalous. Our wrongful death statute provides for punitive damages. Bell v. Riley Bus Lines, 257 Ala. 120, 57 So.2d 612 (1952). By the criminal law, it is a great crime to kill the child after it is able to stir in the mother’s womb, by an injury inflicted upon the person of the mother, and it may be murder if the child is born alive and dies of prenatal injuries. Clarke v. State, 117 Ala. 1, 23 So. 671 (1897). One of the purposes of our wrongful death statute is to prevent homicides. Bell v. Riley Bus Lines, supra. If we continued to follow Stanford, which followed then existing precedent, a defendant could be responsible criminally for the homicide of a fetal child but would have no similar responsibility civilly. This is incongruous.”

289 Ala. at 54-55, 265 So.2d at 597-98 (emphasis omitted and emphasis added). The Huskey Court thus recognized that the purpose and reach of the Wrongful Death Act were tied to the State’s criminal homicide statutes.

Approximately a year after Huskey was decided, the Court in Wolfe v. Isbell, 291 Ala. 327, 280 So.2d 758 (1973), was confronted with a wrongful-death case involving prenatal injuries to a previable fetus that was born alive. The facts in Wolfe were that on March 10, 1970, the defendants, operating a truck, collided with an automobile carrying the mother and father of the child. “[A]s a proximate consequence thereof, the ... minor child, being then carried as an unborn child by [the] wife, suffered grievous prenatal injuries and prenatal damages from which she subsequently died on to-wit, June 16, 1970, approximately fifty minutes after being born alive on said date and occasion.” 291 Ala. at 329, 280 So.2d at 759. The question in Wolfe concerned

“whether or not a tort action can be maintained by the father to recover damages for the wrongful death of his minor child, resulting from prenatal injuries, negligently inflicted while a nonviable fetus, if the injured child is subsequently born alive. By nonviable we mean not capable of living, growing, or developing and functioning successfully, the antithesis of viable, which is defined as having attained such form and development of organs as to be normally capable of living outside the uterus.”

291 Ala. at 329, 280 So.2d at 759. Thus, the fetus sustained injuries in the accident before he was viable, and he died as a result of those injuries shortly after being born three months later, postviability. The Court in Wolfe concluded that the father could maintain a wrongful-death action in such a situation.

In reaching its conclusion, the Wolfe Court first addressed the defendants’ contention that they “owed no duty to a nonviable fetus as a minor under [the predecessor statute to § 6-5-391].” 291 Ala. at 330, 280 So.2d at 760. The Court responded by observing that, if the question whether a duty exists to a previable fetus is one of “existence,”

“ ‘medical authority has recognized long since that the child is in existence from the moment of conception, and for many purposes its existence is recognized by the law.’ Citing Herzog, Medical Jurisprudence, 1931, §§ 860-975; Malloy, Legal Anatomy and Surgery, 1930, 669-687. And Prosser adds: ‘All writers who have discussed the problem have joined in condemning the old rule [that the defendant could owe no duty of conduct to a person who was not in existence at the time of the action], in maintaining that the unborn child in the path of an automobile is as much a person in the street as the mother, and in urging that recovery should be allowed upon proper proof.’ ”

Id. (quoting Prosser, Law of Torts, p. 336 (4th ed.1971)).

The Wolfe Court then turned its attention to the fact that “it is essential to the maintenance of an action for death by wrongful act or default that the act or default be of such character as would have supported an action by the deceased for his injuries if he had survived.” 291 Ala. at 330, 280 So.2d at 760. “It follows,” the Court reasoned, “that the right to maintain an action for the wrongful death of an unborn child depends on the right of the particular child, if he had survived, to maintain an action for injuries sustained.” 291 Ala. at 330, 280 So.2d at 761 (emphasis added). Implicitly indicating that the emphasized language is the dis-positive criterion, the Court noted and agreed with the corollary position of the plaintiff

“that it makes no difference, in deciding the right to a cause of action for wrongful death, whether the fetal child was viable or not when the injury was inflicted, if the child was subsequently born alive, but died from the injury....
“While the decisions dealing with the problem before us are certainly not without divergent views, the more recent authorities emphasize that there is no valid medical basis for a distinction based on viability, especially where the child has been born alive. These proceed on the premise that the fetus is just as much an independent being prior to viability as it is afterwards, and that from the moment of conception, the fetus or embryo is not a part of the mother, but rather has a separate existence within the body of the mother.”

291 Ala. at 330-31, 280 So.2d at 761 (emphasis added).

The Wolfe Court then proceeded to review numerous authorities and how each had concluded that a distinction based on viability in wrongful-death actions was unsatisfactory. For example, the Court noted:

“Though unnecessary to a decision in Puhl v. Milwaukee Auto. Ins. Co., 8 Wis.2d 343, 99 N.W.2d 163 (1959), the court pointed out that the viability theory, permitting actions for injuries to viable unborn children, but not to nan-viable children has been challenged as unrealistic in that it draws an arbitrary line between viability and nonviability, and fails to recognize the biological fact that there is a living human being before viability. The court said in that case that a child is no more a part of its mother before it becomes viable than it is after viability, and that it would be more accurate to say that the fetus from conception lived within its mother rather than as a part of her.”

291 Ala. at 331, 280 So.2d at 761 (emphasis added). Among the other authorities consulted by the Wolfe Court were Prosser, Restatement (Second) of Torts, and decisions from various other jurisdictions. The Wolfe Court summarized its review of the authorities by quoting from Torigian v. Watertown News Co., 352 Mass. 446, 448, 225 N.E.2d 926, 927 (1967), in which the Massachusetts Supreme Judicial Court stated that, “ ‘[t]o the extent that the views of textwriters and legal commentators have come to our attention, they are unanimously of the view that nonviability of a fetus should not bar recovery.’ ” 291 Ala. at 333, 280 So.2d at 763.

In short, the Wolfe Court concluded that the father could maintain an action for the wrongful death of his unborn child even though the injuries that allegedly caused the death occurred before the fetus became viable. The Court emphasized that the important fact was that the child was born alive, not the point in the pregnancy at which the fetus was injured.

About a year after its decision in Wolfe, however, the Court was presented with a case in which a child who suffered prenatal injuries was not born alive. The case of Eich v. Town of Gulf Shores, 293 Ala. 95, 300 So.2d 354 (1974), concerned an eight- and-a-half-month pregnant woman who was involved in an automobile accident in which “she suffered injuries which culminated in the death of her fetal child who was stillborn.” 293 Ala. at 97, 300 So.2d at 355. The Eich Court held that “the parents of an eight and one-half month old stillborn fetus are entitled to maintain an action for the wrongful death of the child.” 293 Ala. at 100, 300 So.2d at 358. In so holding, the Court rejected the position that, “as a matter of substantive statutory law, live birth is a prerequisite to liability for wrongful death in Alabama.” 293 Ala. at 98, 300 So.2d at 356.

The Eich Court rejected the notion that the requirement that the child be born alive should be maintained in wrongful-death jurisprudence because it provides a bright line for matters of proof of causation. In doing so, the Court reasoned that, “once we accept the basic premise that a fetus is a potential human life at the time of the injury, we feel that the substantive rights resulting from wrongful death must be protected, regardless of the inherent practical difficulties” as to proof of causation. 293 Ala. at 100, 300 So.2d at 358 (emphasis added).

The Eich Court also highlighted a logical problem created by drawing a distinction based on whether the child is born alive:

“To deny recovery where the injury is so severe as to cause the death of a fetus subsequently stillborn, and to allow recovery where injury occurs during pregnancy and death results therefrom after a live birth, would only sene the tortfea-sor by rewarding him for his severity in inflicting the injury. It would be bizarre, indeed, to hold that the greater the harm inflicted the better the opportunity for exoneration of the defendant. Logic, fairness and justice compel our recognition of an action, as here, for prenatal injuries causing death before a live birth.”

293 Ala. at 97, 300 So.2d at 355 (footnote omitted and emphasis added). As the Huskey Court observed, our wrongful-death statutes provide for punitive damages to punish the tortfeasor. The Eich Court noted that it therefore would be strange to maintain a distinction in the law of wrongful death that rewards the tortfea-sor whose action inflicts greater harm.

In reaching its conclusion, the Eich Court underscored the legislative intent of the wrongful-death statutes:

“[T]o allow recovery where the fetus is stillborn is essential to the effectuation of legislative intent. It is a deeply engrained principle of Alabama jurisprudence that the paramount purpose of our wrongful death statutes (§§ 119 and 123) is the preservation of human life....
“It was to implement this legislative intent, then, that the Alabama Supreme Court, through its interpretation of the phrase ‘such damages as the jury may assess,’[] provided vindication for the tortfeasor’s wrongful conduct. To deny recovery would sanction the tortfeasor’s wrongful act and would clearly negate the primary objective of the statute.”

293 Ala. at 98, 300 So.2d at 356 (footnote omitted and emphasis added). In other words, the Eich Court concluded that the preservation of human life necessitated eliminating the distinction emphasized in Wolfe that a fetus must be born alive in order for the parents to recover under the wrongful-death statutes. Moreover, as in Huskey, the Court in Eich ultimately based its decision on what it referred to as “the pervading public purpose of our wrongful death statute, which is to prevent homicide through punishment of the culpable party and the determination of damages .... ” 293 Ala. at 100, 300 So.2d at 358.

Before the release of the Lollar and Gentry decisions on the same day in 1993, Huskey, Wolfe, and Eich constituted the seminal decisions from this Court concerning causes of action for wrongful death based on prenatal injuries. In each of those cases predating Lollar and Gentry, the Court interpreted the Wrongful Death Act in a manner that eliminated a distinction that otherwise would have prevented recovery for the death of a fetus. Lollar and Gentry halted this trend by concluding that “the term ‘minor child’ in § 6-5-391 does not include a fetus that dies before becoming able to live outside the mother’s womb.” Gentry, 613 So.2d at 1244.

In Lollar, Brenda Lollar was examined by Dr. Felix Tankersley on September 15, 1989, during which it was determined that Lollar was three months’ pregnant. On September 27, Lollar experienced a hemorrhage and Dr. Tankersley told Lollar that she was experiencing an inevitable, first trimester, spontaneous abortion, i.e., a miscarriage. Dr. Tankersley performed a dilatation and curettage (“D and C”) in order to remove the remaining placenta and fetal tissue. On October 9, 1989, Lol-lar began hemorrhaging again, and she returned to Dr. Tankersley for an examination. She was referred to the Obstetrics-Gynecology Center at the University of Alabama at Birmingham (“UAB”) and an ultrasound was performed that showed that Lollar was still carrying a “well developed” fetus with a “viable heartbeat.” 613 So.2d at 1250. Tests further revealed, however, that Lollar had a deficiency of amniotic fluid. On October 13, following the onset of severe pain, Lollar was admitted to UAB, where her uterus was evacuated, resulting in the death of the fetus.

Gentry involved facts quite similar to Lollar. In Gentry, a pregnant Kathleen Gentry visited Dr. Keith Gilmore on August 5, 1983, when she was complaining of “flooding blood, passing clots, and cramping.” 613 So.2d at 1243. Dr. Gentry performed a D & C on Gentry on August 6. An ultrasound test on August 8 revealed an apparently normal 11-week fetus. Gentry miscarried on August 24. It was “undisputed that, at the time of the miscarriage, the 13-week fetus was not viable, that is, it was not capable of living outside the womb.” 613 So.2d at 1243.

As already noted above, the Court concluded in Lollar and Gentry that the Wrongful Death Act did not permit recovery for the death of a fetus that occurs before the fetus attains viability. In reaching this conclusion, the Gentry Court observed that “[i]n Huskey, Wolfe, and Eich, the deaths admittedly occurred after the fetus had attained viability,” while “[t]his case involves an alleged injury to a nonviable fetus and the death of that fetus before the fetus became viable.” 613 So.2d at 1244. In Lollar, the Court provided a further explanation as to the ways in which it believed that Huskey, Wolfe, and Eich supported its conclusion.

“Contrary to the contention that the Eich-Wolfe-Huslcey trilogy abrogated the viability requirement, a close reading of these cases reveals that viability was the common — indeed, the decisive— consideration, in each case. Huskey and Eich allowed recovery because the fetus was viable at the time of the injury, and Wolfe allowed recovery because the fetus survived the injury long enough to attain viability. The rule proceeding from these cases, therefore, essentially comports with the analysis of Dr. Tank-ersley and Service America, that is, that a cause of action for death resulting from a pre-natal injury requires that the fetus attain viability either before the injury or before death results from the injury. To eliminate this requirement ... would require a substantial expansion of the principle emanating from these cases.”

Lollar, 613 So.2d at 1252 (emphasis omitted and emphasis added).

The Lollar Court was correct that the facts in Huskey, Wolfe, and Eich involved fetuses that were viable either at the time of the injury or at the time of death. As our review of these cases has shown, however, viability was not the “decisive” consideration in this trio of cases. In Huskey, the Court opened the door for recovery in a wrongful-death action based on prenatal injuries by expressly overruling Stanford because the ruling in Stanford, was based on the outdated “medical opinion of that day that a fetal child was a part of the mother and was not a ‘person’ until it was born.” 289 Ala. at 54, 265 So.2d at 596-97 (emphasis omitted). As discussed at length above, the Wolfe Court emphasized the lack of a principled distinction based on viability and quoted substantial deci-sional authority and well respected secondary sources for the proposition that, in all good conscience, fairness, and logic, a duty of care is owed to a fetus even if it has not yet attained the ability to live outside the womb. 291 Ala. at 330-31, 280 So.2d at 761. In Eich, the Court recognized that the fetus is “a potential human life at the time of the injury,” 293 Ala. at 100, 300 So.2d at 358, and thus held that live birth was not a prerequisite to recovery for the death of a fetus. Among other things, the Eich Court rejected the notion that recovery should be denied “where the injury is so severe as to cause the death of a fetus” and that “[i]t would be bizarre, indeed, to hold that the greater the harm inflicted, the better the opportunity for exoneration of the defendant.” 293 Ala. at 97, 300 So.2d at 355. In sum, though Huskey, Wolfe, and Eich involved viable fetuses, their holdings did not turn on that fact.

In a lengthy dissent in Gentry, Justice Maddox stated that in his view the Court had misread Wolfe and Eich. “I read the essential holdings of Wolfe and Eich to be that viability at the time of injury and live birth are irrelevant to recovery; consequently, I believe those holdings support my conclusion [that a wrongful-death cause of action exists for the death of a nonviable fetus].” Gentry, 613 So.2d at 1248 (Maddox, J., dissenting). Justice Maddox reasoned:

“[U]nder principles established in Wolfe and Eich, neither viability at the time of injury, nor live birth, is a prerequisite to recovery for the wrongful death of a fetus.
“These same principles are no less compelling when both the injury and the death occurred before viability.... [Viability is an arbitrary, artificial, and varying standard that is illogical when considered against this Court’s recognition in Wolfe of the biological separateness of mother and child from the moment of conception.”

613 So.2d at 1249 (Maddox, J., dissenting).

In support of his conclusion that viability is no less arbitrary a standard when applied to the time of death than it is when applied to the time of injury, Justice Maddox cited further authorities from which he concluded that

“the overwhelming majority of commentators has criticized distinctions based on viability of the fetus, for a number of reasons: A child is an entity, a ‘person,’ from the moment of conception, 1 Stuart M. Speiser, et al., Recovery for Wrongful Death and Injury § 4.37, at 204 (3rd ed.1992); the first trimester is the developmental period in which the fetus is most susceptible to environmental influences, David A. Gordon, The Unborn Plaintiff, 63 Mich. L.Rev. 579, 589 (1965); viability is not determinative or relevant to the question of the tort-fea-sor’s ability to escape liability, David Kader, The Law of Tortious Prenatal Death Since Roe v. Wade, 45 Mo. L.Rev. 639, 659-60 (1980); tort-feasors should not be better off if the fetus dies from injuries sustained before viability than they would be if the fetus lives, Frank J. Hartye, Comment, Tort Recovery for the Unborn Child, 15 J. Fam. L. 276, 297 (1976-77); ‘[potential life is no less potential during the first weeks of pregnancy than in the last weeks, and a fetus is entitled to develop without outside interference,’ Michael P. McCready, Comment, Recovery for the Wrongful Death of a Fetus, 25 U. Rich. L.Rev. 391, 405 (1991); viability distinctions impede the goals of the wrongful death statutes, Gary A. Meadows, Comment, Wrongful Death and the Lost Society of the Unborn, 13 J. Legal Med. 99, 114 (1992); viability should not be the point at which the unborn gain legal protection, because ‘viability is dependent upon a number of factors, including the weight and race of a fetus, maternal age and health, nutritional deficiencies and psychological elements,’ Patricia A. Meyers, Comment, Wrongful Death and the Unborn Child: A Look at the Viability Standard, 29 S.D. L.Rev. 86, 96-97 (1983); ‘the actual medical determination of the point at which a fetus attains viability is uncertain,’ Karen Rene Osborne, Comment, Torts — The Right of Recovery for the Tortious Death of the Unborn, 27 How. L.J. 1649, 1661 (1984); a viability standard results in an injustice, because a negligently injured, non viable fetus probably would have survived but for the wrongful act, Janet I. Stich, Comment, Recovery for the Wrongful Death of a Viable Fetus: Wer-ling v. Sandy, 19 Akron L.Rev. 127, 138 (1985); ‘viability is as arbitrary a standard in wrongful death cases as was birth,’ Sheryl Anne Symonds, Comment, Wrongful Death of the Fetus: Viability Is Not a Viable Distinction, 8 U. Pug. Sound L.Rev. 103, 115 (1984); and viability is ‘[without a compelling evidential or medical justification’ and is ‘an artificial barrier to wrongful death recovery,’ Richard E. Wood, Comment, Wrongful Death and the Stillborn Fetus: A Common Law Solution to a Statutory Dilemma, 43 U. Pitt. L.Rev. 809, 835 (1982).”

Id. at 1248-49 (Maddox, J., dissenting)(emphasis added).

Although not cited by Justice Maddox, the most recognized treatise on the law of torts observed at the time of the Gentry decision that

“[vjiability of course does not affect the question of the legal existence of the unborn, and therefore of the defendant’s duty, and it is a most unsatisfactory criterion, since it is a relative matter, depending on the health of the mother and child and many other matters in addition to the stage of development. Certainly the infant may be no less injured; and logic is in favor of ignoring the stage at which the injury occurs. With the recent advances in embryology and medical technology, medical proof of causation in these cases has become increasingly reliable, which argues for eliminating the viability or other arbitrary developmental requirement altogether.”

W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 55, at 369 (5th ed.l984)(emphasis added).

Commentators have continued to criticize the viability distinction in the years since Gentry was decided. For example, one commentator has noted that the viability standard, like the born-alive test, has outlived its usefulness:

“While not every jurisdiction has stopped using the born-alive test first set out in Bonbrest [v. Kotz, 65 F.Supp. 138 (D.D.C.1946) ], most have abandoned the born alive rule, finding it stringent and unjust. Similarly, the single-entity view was rejected as archaic and outmoded due to subsequent developments in science and technology. The viability test, at least in its application to tort law, is likewise outmoded and archaic. The viability test does not affect the defendant’s legal duty, and its relative nature makes it an unsatisfactory criterion. As is the case with any tort the issues at hand are first, whether the defendant owed a duty of care to avoid unreasonable risk of harm to others, second whether the defendant breached that duty of care, and third whether that breach of duty caused the harm. Although the age of a defendant’s victims, whether they are born or unborn, may be relevant in the analysis of the reasonable standard of care for a particular case, it does not act as a bright line preventing the case from ever reaching a jury. The viability line, although useful as a guide for abortion cases, is an arbitrarily drawn line, and if the law relies too heavily on arbitrary line drawing it may very likely become ... mechanical, superficial, dry, sterile formalism. ...”

Daniel S. Meade, Wrongful Death and the Unborn Child: Should Viability be a Prerequisite for a Cause of Action?, 14 J. Contemp. Health L. & Pol’y 421, 441 (1998) (footnotes omitted and emphasis added). See also Sarah J. Loquist, The Wrongful Death of a Fetus: Erasing the Barrier between Viability and Non-Viability, 36 Wash. L.J. 259, 288 (1997) (“The viability requirement is difficult to apply because it is so hard to determine exactly when a fetus becomes viable. Furthermore, medical advances continue to change the point at which a fetus is viable.”).

In Lollar, the Court cited as one of its key reasons for declining to interpret the term “minor child” in § 6-5-391, Ala.Code 1975, to include a nonviable fetus the fact that, “[a]t the present time, it appears that no court in the United States has, without a clear legislative directive, recognized a cause of action for the wrongful death of a fetus that has never attained a state of development exceeding that attained in this case.” Lollar, 613 So.2d at 1252. Since this Court’s decisions in Lollar and Gentry, the legal landscape has changed in certain material respects.

Six jurisdictions (Illinois, Louisiana, Missouri, Oklahoma, South Dakota, and West Virginia) now specifically permit wrongful-death actions even where the death of the fetus occurs before the fetus becomes viable. The adoption of the pre-viability standard in five of these six jurisdictions occurred after Lollar and Gentry were decided. See Pino v. United States, 183 P.3d 1001 (Okla.2008); Wiersma v. Maple Leaf Farms, 543 N.W.2d 787 (S.D.1996); Connor v. Monkem Co., 898 S.W.2d 89 (Mo.1995); Farley v. Sartin, 195 W.Va. 671, 466 S.E.2d 522 (1995); Smith v. Mercy Hosp. & Med. Ctr., 203 Ill.App.3d 465, 148 Ill.Dec. 567, 560 N.E.2d 1164 (1990); and La. Civ.Code Ann. art. 26 (1999). In Illinois, Louisiana, Missouri, and South Dakota, the legislatures expressly changed the wording of their respective wrongful-death statutes to include an “unborn child.” The Supreme Courts of West Virginia and Oklahoma adopted a previability standard absent any specific change in the wrongful-death statutes by their respective state legislatures.

In Farley, the West Virginia Supreme Court summarized its decision to eliminate the distinction between viability and nonvi-ability for prenatal wrongful-death actions as follows:

“In jurisdictions where the viability standard is controlling, the tortfeasor remains unaccountable for the full extent of the injuries inflicted by his or her wrongful conduct. In our judgment, justice is denied when a tortfeasor is permitted to walk away with impunity because of the happenstance that the unborn child had not yet reached viability at the time of death. The societal and parental loss is egregious regardless of the state of fetal development. Our concern reflects the fundamental value determination of our society that life— old, young, and prospective — should not be wrongfully taken away. In the absence of legislative direction, the overriding importance of the interest that we have identified merits judicial recognition and protection by imposing the most liberal means of recovery that our law permits.”

Farley, 195 W.Va. at 682, 466 S.E.2d at 533 (emphasis added). In support of its decision, the Farley court quoted at length from Justice Maddox’s dissent in Gentry. 195 W.Va. at 682-83, 466 S.E.2d at 533-34.

In Pino, the Oklahoma Supreme Court noted the fact that Oklahoma’s wrongful-death statute does not mention the death of a “person”; instead, it creates a cause of action “[w]hen the death of one is caused by the wrongful act or omission of another.” Okla. Stat. Ann. tit. 12, § 1053 (West 2000). The Oklahoma Supreme Court reasoned that in using the word “one,” the legislature left the reach of the statute to the development of the common law. The Pino court observed that maintaining the viability rule “would create the anomalous result of allowing a tortfeasor to escape liability for causing the death of a nonviable fetus while subjecting to liability the tortfeasor whose acts caused a nonfatal injury.” Pino, 183 P.3d at 1005. The Pino court also emphasized that interpreting Oklahoma’s wrongful-death statute as allowing causes of action for nonviable fetuses “is in keeping with the focus being placed not on a fetus’s status but on the tortious conduct.” Id. (emphasis added).

In sum, at the time Lollar and Gentry were decided, the viability rule already had been undermined in this State by this Court’s reasoning in its earlier decisions in Wolfe and Eich. As the above-quoted passage in Prosser and Justice Maddox’s dissent in Gentry clearly demonstrated, commentators also already had heavily criticized the viability rule. Since 1993, criticisms of the viability rule have continued, if not increased, and some jurisdictions have recognized the arbitrary and illogical nature of the viability rule.

Nonetheless, at the time Lollar and Gent'i’y were decided, there remained one significant factor that provided some support for the viability rule: Alabama’s homicide statutes applied only to persons “who had been born and [were] alive at the time of the homicidal act.” § 13A-6-l(2), Ala.Code 1975. In concurring in the result in both Gent'i’y and Lollar, Justice Houston wrote specially and used the language of the homicide statute to argue that Eich should be overruled because that decision eliminated any distinction based on the injured fetus being born alive. Justice Houston argued for an approach that he believed would be “consistent with the criminal law”:

“To convict a person of homicide, the victim must be ‘a human being who had been born [and was] alive at the time of the homicidal act.’ Ala.Code 1975, § 13A-6-l(2). This, I believe, is consistent with the common law. See § 13A-6-1 commentary. There should not be different standards in wrongful death and homicide statutes, given that the avowed public purpose of the wrongful death statute is to prevent homicide and to punish the culpable party and not to compensate for the loss.”

Gentry, 613 So.2d at 1245 (Houston, J., concurring in the result); Lollar, 613 So.2d at 1253 (Houston, J., concurring in the result).

Our legislature has now expressly amended Alabama’s homicide statutes to include as a victim of homicide “an unborn child in útero at any stage of development, regardless of viability.” § 13A-6-l(a)(3), Ala.Code 1975 (emphasis added). This change constitutes clear legislative intent to protect even nonviable fetuses from homicidal acts. As Justice Houston’s comment in his special writings in Gentn-y and Lollar indicated, this Court repeatedly has emphasized the need for congruence between the criminal law and our civil wrongful-death statutes. We have already noted that the Huskey Court stated that “[o]ne of the purposes of our wrongful death statute is to prevent homicides.” Huskey, 289 Ala. at 55, 265 So.2d at 597. The Court in Eich similarly observed that “the pervading public purpose of our wrongful death statute ... is to prevent homicide through punishment of the culpable party and the determination of damages by reference to the quality of the tortious act....” Eich, 293 Ala. at 100, 300 So.2d at 358.

The wrongful-death statutes seek to prevent homicides. The Court in Nettles v. Bishop, 289 Ala. 100, 103, 266 So.2d 260, 262 (1972), stated that the “primary purpose” in awarding damages under what it referred to as the “homicide statute” “is to punish the defendant and to deter others from like conduct.” The Eich Court emphasized that “the damages recoverable under [the Wrongful Death Act] are entirely punitive and are based on the culpability of the defendant and the enormity of the wrong, and are imposed for the preservation of human life.” Eich, 293 Ala. at 98, 300 So.2d at 356.

Given the purpose of the Wrongful Death Act of preventing homicide, we agree with the Huskey Court that it would be “incongruous” if “a defendant could be responsible criminally for the homicide of a fetal child but would have no similar responsibility civilly.” Huskey, 289 Ala. at 55, 265 So.2d at 597-98. Moreover, the viability rule, much like the born-alive rule, actually benefits the tortfeasor who inflicts a more severe injury. Under the viability rule, a tortfeasor who inflicts an injury that causes the immediate death of a nonviable fetus escapes punishment, while a tortfeasor who inflicts an injury that does not result in death, or that results in death only after the fetus attains viability, may be liable for damages. As the Eich Court reasoned, “[i]t would be bizarre, indeed, to hold that the greater the harm inflicted the better the opportunity for exoneration of the defendant,” especially given the focus in the Wrongful Death Act on punishing the wrongdoer by allowing punitive damages. Eich, 293 Ala. at 97, 300 So.2d at 355.

In sum, it is an unfair and arbitrary endeavor to draw a line that allows recovery on behalf of a fetus injured before viability that dies after achieving viability but that prevents recovery on behalf of a fetus injured that, as a result of those injuries, does not survive to viability. Moreover, it is an endeavor that unfairly distracts from the well established fundamental concerns of this State’s wrongful-death jurisprudence, i.e., whether there exists a duty of care and the punishment of the wrongdoer who breaches that duty. We cannot conclude that “logic, fairness, and justice” compel the drawing of such a line; instead, “logic, fairness, and justice” compel the application of the Wrongful Death Act to circumstances where prenatal injuries have caused death to a fetus before the fetus has achieved the ability to live outside the womb.

In accord then with the numerous considerations discussed throughout this opinion, and on the basis of the legislature’s amendment of Alabama’s homicide statute to include protection for “an unborn child in útero at any stage of development, regardless of viability,” § 13A-6-l(a)(3), we overrule Lollar and Gentry, and we hold that the Wrongful Death Act permits an action for the death of a previable fetus. We therefore reverse the summary judgment in favor of Carmack and remand the action for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

MALONE, C.J., and WOODALL, STUART, BOLIN, PARKER, MURDOCK, SHAW, MAIN, and WISE, JJ., concur.

      . Although the notice of appeal describes the appellant as “the personal representative” of Baby Mack, § 6-5-391(a), Ala.Code 1975, contemplates that an action such as this be brought by a mother or a father of a deceased child in his or her capacity as such.

      . Matthew Taul has filed an appellee's brief in this Court. However, the trial court's order addresses only the summary-judgment motion filed by Carmack, and a summary judgment was entered for Carmack only. It appears that the wrongful-death claim against Taul was dismissed with the other claims on March 15, 2010. See infra.

      . Although the wrongful-death count in the complaint filed by Mack and Thomas references § 6-5-410, Ala.Code 1975, the general statute providing for a claim for a wrongful death in Alabama, our research reveals that Alabama cases concerning claims based on the wrongful death of a fetus invariably have entailed consideration of and reliance upon § 6-5-391, Ala.Code 1975, or its substantially similar predecessor, Title 7, § 119, Ala.Code 1940. The briefs presented to this Court cite primarily § 6-5-391. In their arguments to the trial court concerning the motions for a summary judgment and in their arguments on appeal to this Court, the parties address the cases interpreting the phrase "minor child” in § 6-5-3 91(a) or its predecessor. Accordingly, we consider the issue presented in this appeal as an issue relating to the proper interpretation § 6-5-391. See, e.g., Waters v. Jolly, 582 So.2d 1048, 1055 (Ala.1991) (citing Rule 8(f), Ala. R. Civ. P., and noting that, "[i]n order to do substantial justice, pleadings are to be construed liberally in favor of the pleader”); Grayco Res., Inc. v. Poole, 500 So.2d 1030, 1032 (Ala.1986) (quoting the Committee Comments to Rule 1, Ala. R. Civ. P., stating that " 'the policy of rules such as these is to disregard technicality and form in order that the civil rights of litigants may be asserted and tried on the merits' ”); and Green v. City of Montgomery, 55 So.3d 256, 262 (Ala.Civ.App.2009) (observing that "[i]t is well established that a pleading is judged by its substance rather than by its form”).

      . The amendment became effective July 1, 2006. Act No. 2006-419, Ala. Acts 2006.

      . The fetus in Huskey was viable at the time of the prenatal injury and was later bom alive. Accordingly, the Court noted that it was "not necessary ... for the Court to decide in this cause whether an action for personal injury or wrongful death would exist before the fetus is viable or under circumstances where the child is stillborn.” 289 Ala. at 55 n. 3, 265 So.2d at 598 n. 3.

      . The Wolfe Court quoted Prosser, Law of Torts, p. 336 (4th ed.1971), for the proposition that
      "[vjiability, of course, does not affect the question of the legal existence of the foetus, and therefore of the defendant's duty; and it is a most unsatisfactory criterion, since it is a relative matter, depending on the health of mother and child and many other matters in addition to the stage of development. Certainly the infant may be no less injured; and all logic is in favor of ignoring the stage at which it occurs. But with our knowledge of embryology what it is, as we approach the beginning of pregnancy medical knowledge, and therefore medical testimony and medical proof of causes, becomes increasingly unreliable and unsatisfactory, so that there is good reason for caution. This, however, goes to proof rather than principle; and if, as is undoubtedly the case there are injuries as to which reliable medical proof is possible, it makes no sense to deny recovery on any such arbitrary basis."

      . See Restatement (Second) of Torts § 869, p. 174-82 (Tent. Draft No. 16, 1970), cited by the Wolfe Court for the proposition that the American Law Institute has "rejected the viability criteri[on] and opted merely for the requirement of live birth as the basis of the cause of action.”

      . Among the cases from other jurisdictions cited by the Wolfe Court was Hornbuckle v. Plantation Pipe Line Co., 212 Ga. 504, 93 S.E.2d 727 (1956), in which the Georgia Supreme Court noted: "[A]t what particular period of the prenatal existence of the child the injury was inflicted is not controlling.” Other cases cited from other jurisdictions in Wolfe include Kelly v. Gregory, 282 App.Div. 542, 125 N.Y.S.2d 696 (N.Y.App.1953); Bennett v. Hymers, 101 N.H. 483, 147 A.2d 108, 110 (1958); Smith v. Brennan, 31 N.J. 353, 157 A.2d 497 (1960); and Sinkler v. Kneale, 401 Pa. 267, 164 A.2d 93 (1960). These authorities consistently insist that viability is not a valid distinction for determining whether a duty of reasonable care to a fetus exists and, in turn, whether any injury to a fetus may give rise to a wrongful-death action on its behalf.

      . The phrase "and in any case shall recover such damages as the jury may assess” was deleted from § 6-5-3 91(a) by an amendment effective August 8, 1995.

      . Justice Maddox explained that his inter- ' pretation of Alabama’s wrongful-death statute would "not cover ... the death of a nonviable fetus in instances where the death of the nonviable fetus resulted from the mother's exercise of her constitutional rights, as those rights have been interpreted by the United States Supreme Court.” 613 So.2d at 1245. The same is true of our opinion in the present case.

      . Even leaving aside the referenced "recent advances” in medical technology, any difficulty in proving causation would " 'go[ ] to proof rather than principle; and if, as is undoubtedly the case there are injuries as to which reliable medical proof is possible, it makes no sense to deny recovery on any such arbitrary basis.' ” Wolfe, 291 Ala. at 331, 280 So.2d at 761 (quoting Prosser, Law of Torts, p. 336 (4th ed. 1971)). "Moreover, since the burden of proof is on the plaintiff, any increased difficulty of proof of causation should inure to the benefit of the defendant.” Eich, 293 Ala. at 100, 300 So.2d at 358.


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    Kenneth NANCE and Pamela Nance v. Mike SOUTHERLAND, Southerland Insurance Company, Windsor Insurance Company, and Infinity Insurance Company.
    2080746.
    Court of Civil Appeals of Alabama.
    Jan. 29, 2010.
    Rehearing Denied March 12, 2010.
    Certiorari Quashed Sept. 9, 2011 Alabama Supreme Court 1090892.

      Phillip A. Gibson, Huntsville, for appellants.
    Robert V. Wood, Jr., and Nicole L. Schroer of Wilmer & Lee, P.A., Huntsville, for appellees Southerland Insurance Company and Mike Southerland.
    C. Peter Bolvig of Hall, Conerly & Bol-vig, P.C., Birmingham, for appellees Windsor Insurance Company and Infinity Insurance Company.
   MOORE, Judge.

Kenneth Nance and Pamela Nance appeal from summary judgments entered by the Madison Circuit Court in favor of Mike Southerland, Southerland Insurance Company, Windsor Insurance Company, and Infinity Insurance Company (hereinafter sometimes referred to collectively as “the defendants”).

Facts

The relevant evidence submitted by the parties in support of or in opposition to the motions for a summary judgment shows the following. In 2003, the Nances decided to procure new automobile-insurance coverage. Kenneth testified that he and Pamela discussed the matter and agreed that Pamela would obtain the insurance through Southerland Insurance Company (“Southerland”). Kenneth testified that he and Pamela had previously discussed that they needed to make sure they obtained uninsured-motorist coverage of between $25,000 and $50,000 and medical-payments coverage. Kenneth stated that he had specifically instructed Pamela, before she went to Southerland’s office, to get insurance in both their names.

On May 14, 2003, Pamela met with Mike Southerland and informed him that she was seeking automobile insurance on behalf of herself and Kenneth. Pamela testified that, during the meeting, she requested that Mike obtain an automobile-insurance policy designating both herself and Kenneth as named insureds and providing “full coverage”; however, Pamela did not specifically request uninsured-motorist coverage. Pamela testified that Mike agreed to her requests and that he then proceeded to fill out an application for an automobile-insurance policy. According to Pamela, as part of the application process, she told Mike all she could remember regarding her and Kenneth’s driving histories, some of which was negative. Pamela testified that she then signed some documents, but she did not remember what documents or how many documents she signed. She also testified that Mike quoted her a premium price but that she did not pay anything at that time.

Pamela testified that she left Souther-land’s office and returned 30 or 40 minutes later, followed by Kenneth. According to Pamela, at that time, Kenneth provided Mike information regarding Kenneth’s personal identification numbers as well as the motor-vehicle identification numbers of the two automobiles to be insured. Pamela testified that both she and Kenneth reiterated to Mike that they wanted full coverage in both their names. Pamela testified that Kenneth had inquired of Mike whether full coverage included uninsured-motorist and medical-payments coverage. Pamela testified that Mike had responded that those coverages would be included. Pamela testified that Mike had told them that Kenneth did not need to sign anything.

Pamela stated that the Nances tendered to Mike a check for approximately $136, which was intended as the premium for “full coverage.” Pamela did not recall Mike informing her that the premium she was paying may be subject to increase based on a review of the Nances’ driving records. Kenneth testified that Pamela left to go to school immediately after they gave Mike the check. Pamela testified that Mike did not provide her any documents to take with her regarding automobile insurance. Kenneth testified that Mike provided him with temporary proof-of-insurance cards and a receipt for the premium payment. Kenneth testified that Mike then told him a policy would be mailed to the Nances. Mike testified that he had no specific recollection of his meetings with Pamela and Kenneth.

The application Mike completed sought automobile-insurance coverage from Windsor Insurance Company (“Windsor”). The application, entitled “Windsor Auto Alabama Private Passenger Automobile Application,” consists of two pages. The first page identifies “Pamela Nance” as the only applicant and contains space for information on past moving violations and traffic accidents, which is blank. Under a section entitled “COVERAGE INFORMATION,” the application lists “Uninsured Motorists” and “Medical Payments” and provides various options. An “X” is marked in the boxes entitled “Reject” under both categories. The application indicates that the policy would be in effect for 6 months and that the total premium would be $547, with a 25% down payment of $136.75 payable immediately, followed by 4 equal quarterly payments of 18.75% of the total premium.

The second page consists of, among other things, a section entitled in bold print “UNINSURED MOTORISTS COVERAGE-ALL APPLICANTS MUST SIGN FORM IF UM IS REJECTED.” Immediately beneath that language, the application states:

“I elect to REJECT protection against Uninsured Motorists as provided in the applicable statutes which permit me to reject insurance against loss caused by uninsured motorists. The undersigned (and each of them) do(es) hereby reject such Insurance coverage, and it is hereby understood and agreed: that such coverage will not be afforded any person by this policy; that this rejection of Uninsured Motorists Coverage applies with respect to all vehicles now insured under the policy as well as any vehicle which may be covered by the policy in the future regardless of whether or not it is owned by the insured on the date of execution of this rejection instrument. “MUST BE SIGNED. Applicant(s) signature(s):”

Pamela signed and dated that section.

The second page of the application further provided, in pertinent part:

“I understand [Windsor] will investigate my application for insurance. I authorize [Windsor]: ... to request driving records or motor vehicle reports (‘MVR’) for every driver listed herein.... I understand the purpose will be to collect information to rate and underwrite my policy.... If data in a ... MVR warrants a premium increase, I agree to pay any additional premium.
“All available coverages were explained to me. I knowingly made the selections indicated herein. Any portion of the application filled out by an agent or broker is expressly acknowledged to have been done at my request. I understand that I am entitled to receive a copy of this application at the time of application.... ”

Pamela signed and dated the application just below that language.

In his deposition, Kenneth denied ever seeing the application. In her deposition, Pamela testified that she did not recall seeing the application, but she indicated that she must have seen it because she had signed it. Pamela, a school teacher, stated that she was “pretty much” an educated person capable of reading and understanding the English language. After reviewing the first page of the application, Pamela testified that, without further explanation, she could not have understood that she was rejecting uninsured-motorist and medical-payments coverage. Upon reviewing the second page of the application, Pamela testified that she understood that the application indicated she was rejecting uninsured-motorist coverage. However, Pamela testified that she did not read the language rejecting uninsured-motorist coverage before signing the application. Pamela testified that she had assumed and had trusted that she was getting the coverage she requested so she had signed the application without reading it. Pamela denied that anyone had prevented her from reading the application.

On May 14, 2003, based on the information contained in the application, Windsor generated an automobile-insurance policy for the Nances (“the policy”). The declarations page for that policy listed “Pamala Nance” as the “named insured.” The declarations page did not list any coverage for uninsured-motorist insurance or medical-payments insurance. Vanessa Bray, a Windsor employee, testified that the policy, including the declarations page, should have been mailed to the Nances so they could verify that they had obtained the coverage they requested. Mike testified that, if the Nances had reviewed the policy, they could have contacted him if they perceived any problems. The Nances testified that they never received a copy of the policy.

As part of the process of generating the policy, Windsor conducted a driving-record check on the Nances, which revealed some negative information that had not been disclosed in the application. Based on that new information, Windsor increased the premium for the policy by $205, which rendered the $136.75 down payment made by the Nances insufficient. Windsor drafted an “Important Notice to the Insured” and a “Special Notice” advising Pamela of the increase in the premium and the information upon which that increase had been based. Bray testified that those notices should have been sent to Pamela as part of the policy.

On May 16, 2003, Windsor drafted a document entitled “Notice of Cancellation of Family Auto Policy” (“the notice of cancellation”). That document, which was directed to Pamela at the address stated in the application, with a copy to Southerland as Pamela’s agent, stated, in pertinent part:

“YOU ARE HEREBY NOTIFIED IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE ABOVE MENTIONED POLICY THAT YOUR INSURANCE WILL CEASE WITHOUT FURTHER NOTICE AT AND FROM THE HOUR AND DATE MENTIONED ABOVE (12:01 AM 5/28/03) DUE TO NONPAYMENT OF PREMIUM.
“REASON FOR CANCELLATION— NOT ENOUGH DOWNPAYMENT RECEIVED FOR POLICY PREMIUM: DEFICIENT BY $51.25
“TO PREVENT THE CANCELLATION OF YOUR POLICY, YOUR PAYMENT MUST BE POSTMARKED ON OR BEFORE 05/27/03. YOUR POLICY WILL NOT BE REINSTATED IF YOUR PAYMENT OF THE FULL AMOUNT SHOWN AS PAST DUE ON THIS NOTICE IS NOT POSTMARKED BY 05/27/03.
⅜ ⅜ ⅜ ⅜ ⅝ ⅝
“AMOUNT PAST DUE — $51.25 WHICH WAS DUE ON 05/14/03”

(Capitalization in original.)

Windsor placed into evidence two internal certificates of mailing, a federal certificate of mailing, and the affidavit of Kendra Slagle, a “litigation specialist,” all of which were intended to. prove that Windsor had mailed the notice of cancellation to Pamela on May 17, 2003. Bray testified that a copy of the notice of cancellation also should have been mailed to Southerland. Mike testified on behalf of Southerland that he did not receive a copy of the notice of cancellation but that he did receive another notice from Windsor, presumably the “Important Notice to the Insured,” indicating that the Nances owed an additional premium. Mike stated that he placed that notice in his file and that he did not take any steps to ensure that the Nances were aware of the premium deficiency or of the impending cancellation of their automobile-insurance policy. The Nances deny that they ever received the notice of cancellation from Windsor or any other notice of the premium deficiency. The Nances did not pay the additional premium, and Windsor canceled the policy as of May 28, 2003, without providing further notice to Southerland or the Nances.

On June 21, 2003, Kenneth received injuries in a two-car accident, allegedly due to the negligence of Christopher Cummings, the operator of the other automobile. Several days after the accident, Kenneth telephoned Mike to make a claim under the Windsor policy, only to be informed that the Nances had no insurance coverage. Kenneth testified that Mike never explained why the Nances did not have coverage, but Mike testified that he vaguely recalled telling Kenneth that the policy had been canceled due to nonpayment of the additional premium. The Nances stated in their affidavits that they had settled their claim against Cummings for $25,000, the limits of his automobile-liability coverage; however, the Nances maintained that their damages exceeded $25,000 and that those excess damages would have been covered under the medical-payments and uninsured-motorist coverages they had requested.

The Nances filed an eight-count complaint against the defendants that, as amended, basically alleged that the defendants had negligently, wantonly, and fraudulently failed to procure and provide for them the insurance they had requested and that the defendants had negligently, wantonly, and fraudulently failed to inform them of the premium deficiency and of the status of their automobile-insurance coverage. The Nances alleged that Windsor and/or Infinity Insurance Company (“Infinity”), which had merged with Windsor (see supra note 2), had breached the insurance contract, had failed to pay the Nances uninsured-motorist benefits, and had committed bad faith. The Nances also claimed that Windsor and/or Infinity and Souther-land had negligently or wantonly hired, trained, or supervised their agents and employees as to how to advise insureds and provide coverage and that Windsor and/or Infinity was vicariously liable for the actions of those persons causing the Nances’ damages. Pamela additionally claimed loss of consortium.

On January 4, 2007, Windsor and Infinity moved for a summary judgment on all counts asserted in the amended complaint. On January 9, 2007, Mike and Southerland moved for a summary judgment on all counts asserted in the amended complaint. On February 27, 2007, the Nances filed a response opposing the summary-judgment motions. To their response, the Nances attached their affidavits, in which they stated, among other things, that, had they received the declarations page of the policy, they would have taken steps to assure that they obtained medical-payments and uninsured-motorist coverage and that, had they received notice of the premium deficiency and the notice of cancellation, they would have cured the deficiency in order to keep the policy in force.

On February 28, 2007, the Nances filed a motion to strike the defendants’ evidence purporting to prove that Windsor mailed the notice of cancellation. In their response to the summary-judgment motions, the Nances argued that, without that evidence, the defendants had not proven an effective cancellation of the policy. On March 1, 2007, Mike and Southerland filed a brief in opposition to the Nances’ motion to strike, which Windsor and Infinity later joined.

On March 12, 2007, without expressly ruling on the Nances’ motion to strike, and without specifying its reasons, the trial court entered an order granting the summary-judgment motions on all counts asserted in the Nances’ amended complaint except the negligence claim against Mike and Southerland. On June 30, 2008, Mike and Southerland renewed their motion for a summary judgment on the remaining negligence count, submitting, among other evidence, portions of the deposition of the Nances’ expert witness, Lynn Hare Phillips. On September 23, 2008, the Nances responded to the renewed summary-judgment motion and filed a motion to strike the portions of the deposition of Phillips upon which Mike and Southerland relied. On December 23, 2008, the trial court entered a summary judgment as to the remaining negligence count against Mike and Southerland, again without specifying its reasons and without expressly ruling on the Nances’ motion to strike. The Nances timely appealed to the Alabama Supreme Court; that court transferred the appeal to this court on May 20, 2009, pursuant to Ala.Code 1975, § 12-2-7(6).

Issues

On appeal, the Nances primarily argue that the trial court erred in entering summary judgments for the defendants on their negligence, wantonness, fraud, breach-of-contract, uninsured-motorist, and respondeat superior claims. The Nances also argue that the trial court erred in denying their motions to strike. We need not decide the second issue, because, without considering the evidence the Nances moved to strike, we hold that the trial court properly entered the summary judgments for the defendants.

Standard of Review

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

“A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(8), Ala. R. Civ. P. The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmov-ing party must present ‘substantial evidence’ creating a genuine issue of material fact — ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ Ala.Code 1975, 12-21-12; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).”

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

Analysis

The Rejectiorir-of-Insurance Issue

The defendants argue that they are entitled to a summary judgment because, they say, Pamela indisputably rejected medical-payments and uninsured-motorist coverage. The defendants presented evidence indicating that Pamela signed the application rejecting medical-payments coverage on the first page and rejecting uninsured-motorist coverage on both pages. Pamela admitted that she signed the application, which unambiguously rejects both coverages, but she stated that she did not read the application before signing it. However, a party capable of reading and understanding English given the opportunity to review an insurance application cannot avoid the legal consequences of signing that document, indicating his or her assent to its terms, on the basis that he or she did not read it. See Kanellis v. Pacific Indem. Co., 917 So.2d 149, 155 (Ala.Civ.App.2005); Syx v. Midfield Volkswagen, Inc., 518 So.2d 94 (Ala.1987). See also Harold Weston, Annotation, Insured’s Duty to Read Insurance Policy as Affirmative Defense in Claims Against Insurance Agents and Brokers, 8 A.L.R.6th 549, § 27 (2005). Hence, Pamela is bound by her assent to the terms of the application, including her rejection of medical-payments and uninsured-motorist coverage.

The Nances submit that Pamela should not be bound because, they say, Mike negligently or wantonly breached a duty to adequately explain uninsured-motorist and medical-payments coverage to Pamela so that she could make an informed decision before rejecting those coverages. The Nances’ sole “argument” on this point consists of one sentence in their statement of facts in which they recite that Phillips, their expert witness, opined that Mike “should have explained to the Nances what uninsured/underinsured motorist coverage was at the time they were purchasing their insurance” and two clauses in the argument portion of their brief stating, respectively, that Mike negligently and recklessly failed to explain the different coverages to the Nances. The Nances do not cite a single Alabama case or statute recognizing the duty of an insurance agent to advise an applicant of the scope of rejected coverage or any case that would indicate that such a duty exists under circumstances similar to those existing in this case.

The question whether Mike owed a duty to inform the Nances of the various coverages Pamela rejected primarily would be one of law. See, e.g., Meyer v. Norgaard, 160 Wis.2d 794, 467 N.W.2d 141 (Wis.Ct.App.1991). Under Rule 28, Ala. R.App. P., a party has a duty to cite appropriate legal authority to demonstrate that the trial court erred. “ ‘ “[I]t is not the function of [an appellate court] to do a party’s legal research or to make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument.” ’ ” Ex parte Borden, 60 So.3d 940, 943 (Ala.2007) (quoting Butler v. Town of Argo, 871 So.2d 1, 20 (Ala.2003), quoting in turn Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994)). When the appellant fails to cite any legal authority in support of an argument, this court will consider that argument waived as if it had not been made at all. See Ex parte Borden, supra. Hence, we do not address the issue whether Pamela’s rejection of medical-payments and uninsured-motorist coverage should be considered invalid due to Mike and Southerland’s alleged failure to fully advise her of the scope of those coverages.

The Nances secondly argue that Pamela’s rejection of uninsured-motorist coverage should not apply to Kenneth because, they say, he would have been a named insured on the policy but for Mike’s negligent, wanton, and fraudulent conduct. Under Ala.Code 1975, § 32-7-23(a), only a “named insured shall have the right to reject [uninsured-motorist] coverage.” When only one spouse is the named insured, his or her valid rejection of uninsured-motorist coverage binds the other insured spouse. See Progressive Specialty Ins. Co. v. Naramore, 950 So.2d 1138, 1142 (Ala.2006); Progressive Specialty Ins. Co. v. Green, 934 So.2d 364, 366 (Ala.2006). On the other hand, when both spouses are named insureds, the rejection of uninsured-motorist coverage by one spouse does not affect the rights of the other spouse to those benefits. See State Farm Mut. Auto. Ins. Co. v. Martin, 292 Ala. 103, 289 So.2d 606 (1974); Nationwide Ins. Co. v. Nicholas, 868 So.2d 457 (Ala.Civ.App.2003). Alabama law has never considered the issue whether a spouse merely intended to be a named insured must sign the uninsured-motorist waiver, but § 32-7-23(a) unambiguously applies only to actual “named insureds,” so Pamela’s rejection does bind Kenneth.

In the application, Mike designated Pamela as the lone applicant and the lone signatory in regard to the rejection of uninsured-motorist coverage. The Nances do not dispute that Pamela signed the application disclosing that she would be the lone “named insured.” In Progressive Specialty Insurance Co. v. Gore, 1 So.3d 996 (Ala.2008), the supreme court held that a wife could not sign a rejection of uninsured-motorist coverage on behalf of her husband when the application disclosed that only the husband would be a named insured. In this case, the undisputed facts present the exact opposite situation, and yield the exact opposite result — Pamela’s decision to be labeled the lone “named insured” authorized her to reject uninsured-motorist coverage on behalf of Kenneth. In light of Pamela’s signing the application unambiguously indicating that she would be the only “named insured,” neither Mike and Southerland nor Windsor and Infinity can be liable for failing to designate Kenneth as a “named insured” under the legal theories advanced by the Nances. See Kanellis, 917 So.2d at 154 (holding that insureds’ failure to read policy disclosing that agent had not procured depreciation coverage they had requested precluded agent’s liability under negligence theory); Syx, supra (holding that insured who failed to read insurance application, which clearly disclosed that insurance would not provide “full coverage,” could not maintain fraud action because insured could not have reasonably relied on oral statement that policy would provide “full coverage” made by automobile seller’s representative).

The Nances maintain that they contracted with, and otherwise expected, Mike and Southerland to procure for them medical-payments and uninsured-motorist coverage. See Montz v. Mead & Charles, Inc., 557 So.2d 1, 4 (Ala.1987) (describing duty of insurance agent to use reasonable skill and care in procuring insurance requested by insurance applicant). However, the application unambiguously discloses that Mike and Southerland did not request such coverage from Windsor. See Syx, supra. Any expectations the Nances might have had regarding the coverages Mike would obtain would be unreasonable as a matter of law under those circumstances. See Banks v. SCI Alabama Funeral Servs., Inc., 801 So.2d 20 (Ala.Civ.App.2001); Mitchell Nissan, Inc. v. Foster, 775 So.2d 138, 140 (Ala.2000). Under the factual circumstances presented in this case, the Nances’ expectations do not create any genuine issue of material fact regarding the validity of Pamela’s rejection of uninsured-motorist coverage.

Based on the duty-to-read defense, Mike and Southerland cannot be liable for negligently, wantonly, or fraudulently failing to designate Kenneth as a named insured or for negligently, wantonly, or fraudulently failing to procure medical-payments and uninsured-motorist coverage for the Nances. Because the Nances validly rejected coverage, Windsor and Infinity cannot be liable for breach of contract or for failing to pay the Nances uninsured-motorist benefits.

The Failure-to-Notify Issue

The Nances next maintain that, although Pamela rejected medical-payments and uninsured-motorist coverage, the defendants negligently, wantonly, and fraudulently deprived them of the right to acquire that coverage later. The Nances first maintain that Windsor had a duty to send them the policy, including the declarations page, which would have revealed to them that Kenneth had not been designated as a named insured and that they had not obtained medical-payments and uninsured-motorist coverage. In their motion for a summary judgment, Windsor and Infinity argued that Windsor owed no duty to the Nances other than those duties arising out of their contractual relationship, which only existed for a brief period. However, during that time, according to Bray, one of the duties Windsor voluntarily undertook was the duty to deliver a copy of the policy, with the declarations page, to the Nances, which Windsor failed to do according to the undisputed evidence in the record. “[A] party ‘who volunteers to act, though under no duty to do so, is ... charged with the duty of acting with due care.’ ” Berkel & Co. Contractors, Inc. v. Providence Hosp., 454 So.2d 496, 503 (Ala.1984) (quoting Dailey v. City of Birmingham, 378 So.2d 728, 729 (Ala.1979)).

At the trial-court level, Windsor and Infinity did not specifically argue that they were entitled to a judgment as a matter of law on the claim that Windsor had negligently failed to send the Nances a copy of the policy. Nevertheless, Windsor and Infinity argued in the trial court generally that all the claims asserted by the Nances failed as a matter of law because the claims are “patently inconsistent with the written terms of the application.” As applied to the Nances’ claim that Windsor failed to deliver the policy, we agree with that argument. The failure to deliver a policy of insurance is actionable only when the insured is prejudiced thereby. See Akpan v. Farmers Ins. Exch., Inc., 961 So.2d 865, 871 (Ala.Civ.App.2007). Prejudice obviously may occur when an insured has no actual or constructive knowledge of a limitation on, or exclusion from, coverage until delivery of the policy, see Ex parte Clarke, 728 So.2d 135 (Ala.1998); however, when the policy merely conforms to the limitations set out in the insurance application, of which the insured is charged with knowledge, the insured cannot claim any prejudice from a failure of the insurer to deliver the policy. See generally Danforth v. Government Employees Ins. Co., 282 Ga.App. 421, 426, 638 S.E.2d 852, 858 (2006) (“ ‘When an insurance company fails to mail or deliver the insurance policy to the insured within a reasonable amount of time after its issuance, the insurance company may still rely on exclusions contained in the policy of which the insured otherwise had notice.’ ” (quoting, with modifications, Williams v. Fallaize Ins. Agency, 220 Ga.App. 411, 414, 469 S.E.2d 752, 756 (1996))); Kozlik v. Gulf Ins. Co., 268 Wis.2d 491, 503, 673 N.W.2d 343, 349 (Wis.Ct.App.2003) (“We therefore hold that an insurer may not deny coverage based on limitations or exclusions in a policy, even if clearly stated, ivhere the insured was not otherwise informed of stick provisions.” (emphasis added)).

The Nances maintain that, had they received the policy, they would have realized only then that they had not obtained medical-payments and uninsured-motorist coverage and that they would have taken steps to cure those omissions. However, as a matter of law, the Nances already were aware from the contents of the application that they had not requested those coverages. See Locklear Dodge City, Inc. v. Kimbrell, 703 So.2d 303, 306 (Ala.1997) (“[T]his Court has held that a person who signs a contract is on notice of the terms therein and is bound thereby even if he or she fails to read the document.” (citing Power Equip. Co. v. First Alabama Bank, 585 So.2d 1291 (Ala.1991))). They cannot claim in retrospect, after they have sustained a loss presumably within the scope of medical-payments and uninsured-motorist coverage, that they would have taken some action to secure that coverage based on the information in the declarations page when they had not taken that action already based on their knowledge of the information contained in the application. See W.G. Yates & Sons Constr. Co. v. Zurich American Ins. Co., (Civil Action No. 06-0803-WS-B, Jan. 8, 2008) (S.D.Ala.2008) (not reported in F.Supp.2d) (finding insured’s argument that it would have obtained replacement insurance had it received policy to be unavailing when insured was already generally aware of type of policy exclusion at issue).

The Nances next argue that the defendants did not notify them of the premium deficiency and of the impending cancellation of the policy for nonpayment of premium. At her deposition, Bray produced the “Important Notice to the Insured” and a “Special Notice” describing the increase in the premium and the information upon which that increase had been based. Bray testified that those notices should have been sent to Pamela as part of the policy. However, Windsor and Infinity presented no evidence indicating that Windsor had, in fact, mailed those notices. Mike testified that he received a premium-deficiency notice, presumably one or both of those documents, but that he did not contact the Nances to ensure they knew they owed an additional premium. The Nances denied that they received any documents from Windsor, including the premium-deficiency notices. The evidence appears undisputed that the Nances did not receive the notices of the premium deficiency.

Whether the evidence sufficiently demonstrates that the Nances received the notice of cancellation depends on application of a particular statute, Ala.Code 1975, § 27-23-25, which provides:

“Proof of mailing of notice of cancellation or of reasons for cancellation to the named insured at the address shown in the policy shall be sufficient proof of notice.”

Pursuant to that statute, if the insurer provides clear and convincing evidence of a definite and specific character that it mailed a notice of cancellation of a policy of automobile-liability insurance, then that evidence sufficiently proves the insured received notice of the cancellation. See Ex parte Alfa Mut. Gen. Ins. Co., 742 So.2d 182, 185 (Ala.1999). The parties dispute whether the defendants presented admissible and clear and convincing evidence indicating that Windsor mailed the notice of cancellation in compliance with § 27-23-25; solely for the purposes of this opinion, we will assume that the defendants did not. Hence, it is not necessary to rule on the Nances’ motions to strike, both of which are directed toward evidence regarding the mailing of the notice of cancellation and its effectiveness to notify the Nances of the cancellation of the policy.

The Nances contend that Windsor owed them a duty to properly notify them of the premium deficiency and impending cancellation of their policy and that, under the specific circumstances of the case, Mike owed them a duty once he received the notice of deficiency to advise them of that notice and its effect on the status of their policy. Assuming, without deciding, the truth of those assertions, we conclude, as matter of law, that any breach of those duties did not proximately cause the damage of which the Nances complain.

The proximate cause of an injury is “ ‘the direct and immediate, efficient cause of the injury.’ ” Mobile City Lines, Inc. v. Proctor, 272 Ala. 217, 224, 130 So.2d 388, 394 (1961) (quoting Western Railway of Alabama v. Mutch, 97 Ala. 194, 196, 11 So. 894, 895 (1892)). Proximate cause is defined as “an act or omission that in a natural and continuous sequence, unbroken by any new and independent causes, produces the injury and without which the injury would not have occurred.” Byrd v. Commercial Credit Corp., 675 So.2d 392, 393 (Ala.1996).

“[Gjenerally proximate cause is a question to be determined by the trier of the fact. Even so, the question of proximate cause may be decided by a summary judgment if ‘“there is a total lack of evidence from which the fact-finder may reasonably infer a direct causal relation between the culpable conduct and the resulting injury.” ’ Green v. Alabama Power Co., 597 So.2d 1325, 1328 (Ala.1992) (quoting Davison v. Mobile Infirmary, 456 So.2d 14, 24 (Ala.1984)); see also Cooley v. Gulf Bank, Inc., 773 So.2d 1039, 1044 (Ala.Civ.App.1999) (Crawley, J., concurring in part and dissenting in part).”

Gooden v. City of Talladega, 966 So.2d 232, 239-40 (Ala.2007). In this case, the Nances testified that, had they been notified of the premium deficiency and of the impending cancellation of their automobile-insurance policy, they would have paid the premium in order to keep the policy in force. However, that payment would not have increased the coverage to include medical-payments and uninsured-motorist coverage for which the Nances did not contract. Hence, the omission of which the Nances complain — the failure to notify them of the premium deficiency and impending cancellation of the policy for that reason — did not produce the injury at issue — lack of medical-payments and uninsured-motorist coverage.

Thus, we hold that the trial court properly entered summary judgments on the various claims arising out of the failure of the defendants to provide to the Nances the policy, the premium-deficiency notices, and the notice of cancellation.

Conclusion

We conclude that the trial court did not err in entering the summary judgments for the defendants. The evidence shows without dispute that Pamela signed an application for automobile insurance rejecting medical-payments and uninsured-motorist coverage. As a result, the Nances obtained a policy of automobile insurance that did not contain those coverages. Any alleged subsequent omission by the defendants did not affect the scope of the coverage obtained and did not proximately cause the Nances to forgo the procurement of the additional insurance they claim they wanted. Regardless of the theory of liability advanced, the defendants are entitled to a judgment as a matter of law.

AFFIRMED.

PITTMAN, BRYAN, and THOMAS, JJ., concur.

THOMPSON, P.J., concurs in the result, without writing.

      . In his deposition, Mike Southerland testified that the correct legal name of the business is S.I., Inc.; however, the pleadings were never amended to reflect that designation.

      . Windsor Insurance Company had merged with Infinity Insurance Company, but the policy in this case was issued under the name of Windsor Insurance Company.

      . A federal certificate of mailing is "a service offered by the United States Postal Service. Upon payment of an additional fee, domestic customers can get a certificate evidencing the mailing of a specific piece of mail on a specific day." Sisson v. State Farm Fire & Cas. Co., 824 So.2d 708, 709 n. 1 (Ala.2001). A federal certificate of mailing "serves as proof that the United States Postal Service received and sent a particular piece of mail.” Echavarria v. National Grange Mut. Ins. Co., 275 Conn. 408, 415, 880 A.2d 882, 886 (2005).

      . The Nances tendered Phillips, an attorney, as an expert regarding the standard of care required of an insurance agent and the breaches of that standard of care by Mike and Southerland.

      . The Nances make no argument that the trial court erred in entering summary judgments as to their bad-faith, loss-of-consortium, and negligent and wanton hiring, training, and supervision claims. Therefore, we will not discuss those claims further.

      . Other jurisdictions are split on this issue based primarily on whether the duties of an insurance agent to advise an applicant regarding coverages arise under common law or statutory provisions. See, William H. Danne, Jr., Annotation, Construction of Statutory Provision Governing Rejection or Waiver of Uninsured Motorist Coverage, 55 A.L.R.3d 216, § 4 (1974) ("Where the statute permitting an insured to 'reject' otherwise mandatory uninsured motorist coverage is silent upon the matter, different opinions have been expressed as to whether a particular insured's refusal of such coverage, if otherwise sufficient as a statutory rejection, is rendered ineffective by the insurer's failure to have explained the nature of uninsured motorist protection to him.”).

      . In their reply brief, the Nances argue, for the first time, that Windsor had a duty under Ala.Code 1975, § 27-14-19(a), to deliver the policy and that Windsor's failure to do so estopped Windsor from denying medical-payments or uninsured-motorist coverage, citing Brown Machine Works & Supply Co. v. Insurance Co. of North America, 659 So.2d 51, 61 (Ala.1995). We hereby grant Windsor and Infinity’s motion to strike that argument, which raises an issue not raised in the trial court and which cannot be raised for the first time in a reply brief. See McGough v. G & A, Inc., 999 So.2d 898, 905 n. 3 (Ala.Civ.App.2007) ("Ordinarily, we do not consider issues raised for the first time in a reply brief.”).

      . Again, the Nances have not cited any legal authority for the proposition that their insurance agent owed them a duty to notify them of a premium deficiency or of an impending cancellation of their policy. See Rule 28, Ala. R.App. P. We do not decide that question because we affirm the summary judgment in favor of Mike and Southerland on different grounds.