author: BOLIN, Justice.

text:
    Paul KENNAMER and Dorothy Kennamer v. FORD MOTOR CREDIT COMPANY LLC and Ray Pearman Lincoln, Inc.
    1120689.
    Supreme Court of Alabama.
    Feb. 28, 2014.
    Rehearing Denied May 28, 2014.

      Ralph K. Strawn, Jr., of Henslee, Robertson, Strawn & Sullivan, L.L.C., Gadsden, for appellants.
    S. Dagnal Rowe and S. Dagnal Rowe, Jr., of Wilmer & Lee, P.A., Huntsville, for appellee Ford Motor Credit Company LLC.
    John Martin Galese and Cassandra Harris Kalupa of Galese & Ingram, P.C., Birmingham, for appellee Ray Pearman Lincoln, Inc.
   BOLIN, Justice.

Paul Kennamer and Dorothy Kennamer appeal an order entered by the Marshall Circuit Court compelling them to arbitrate their claims against Ford Motor Credit Company LLC (hereinafter “Ford Credit”) and Ray Pearman Lincoln, Inc. (hereinafter “the dealership”).

Facts and Procedural History

On November 7, 2009, the Kennamers purchased a used automobile from the dealership. As part of their purchase, the Kennamers entered into a retail-installment contract -with the dealership, which the dealership subsequently assigned to Ford Credit. The installment contract contained an arbitration provision, which provided as follows:

“Arbitration is a method of resolving any claim, dispute, or controversy (collectively, a ‘Claim’) without filing a lawsuit in court. Either you or Creditor (‘us’ or ‘we’) (each, a ‘Party’) may choose at any time, including after a lawsuit is filed, to have any Claim related to this contract decided by arbitration. Such Claims include but are not limited to the following: 1) Claims in contract, tort, regulatory or otherwise; 2) Claims regarding the interpretation, scope or validity of this clause, or arbitrability of any issue; 8) Claims between you and us, your/our employees, agents, successors, assigns, subsidiaries, or affiliates; 4) Claims arising out of or relating to your application for credit, this contract, or any resulting transaction or relationship, including that with the dealer, or any such relationship with third parties who do not sign this contract.
“RIGHTS YOU AND WE AGREE TO GIVE UP
“If either you or we choose to arbitrate a claim, then you and we agree to waive the following rights:
“RIGHT TO A TRIAL, WHETHER BY JUDGE OR JURY
“RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR A CLASS MEMBER IN ANY CLASS CLAIM YOU MAY HAVE AGAINST U.S. WHETHER IN COURT OR IN ARBITRATION
“BROAD RIGHTS TO DISCOVERY AS ARE AVAILABLE IN A LAWSUIT
“RIGHT TO APPEAL THE DECISION OF AN ARBITRATOR
“OTHER RIGHTS THAT ARE AVAILABLE IN A LAWSUIT
“Either Party must contact one of the associations listed below and the other Party to start arbitration. The applicable rules (the ‘Rules’) may be obtained from the association.
“American Arbitration Association (‘AAA’), at 1-800-778-7879, or www. adr.org;
“National Arbitration Forum, at 1-800-474-2871, or www.arb-forum.com
“If there is • a conflict between the Rules and this contract, this contract shall govern. This contract is subject to the Federal Arbitration Act (9 U.S.C. § 1 et seq.) and the Federal Rules of Evidence. The arbitration decision shall be in writing with a supporting opinion. We will pay your total reasonable arbitration fees and expenses (not including attorney fees, except where applicable law otherwise provides) in excess of $ 125. We will pay the whole filing fee if we demand arbitration first. Any portion of this arbitration clause that is unenforceable shall be severed, and the remaining provisions shall be enforced.”

(Capitalization in original.)

The Kennamers also entered into a separate arbitration agreement with the dealership, which provided, in pertinent part, as follows:

“Buyer/lessee acknowledges and agrees that the vehicle buyer/lessee is purchasing or leasing from dealer has traveled in interstate commerce. Buyer/lessee thus acknowledges that the vehicle and other aspects of sale, lease, or financing transaction are involved in, affect, or have a direct impact upon, interstate commerce. ••
“Buyer/lessee agree that all claims, demands, disputes, or controversies of every kind or nature between them arising from, concerning or relating to any of the negotiations involved in the sale, lease, or financing, of the vehicle, the terms and provisions of the sale, lease, or financing agreements, the arrangements for financing, purchase of insurance, extended warranties, service contracts or other products purchased as an incident to the sale, lease, or financing of the vehicle, the performance or condition of the vehicle, or any other aspects of the vehicle and its sale, lease, or financing, shall be settled by binding arbitration conducted pursuant to the provision of the Federal Arbitration Act 9 U.S.C. Section 1 et seq. and according to the Commercial Arbitration Rules of the Better Business Bureau of North Alabama. All parties retain the right to seek relief in a small claims court for disputes of claims within the scope of its jurisdiction.”

In the summer of 2010, the Kennamers began experiencing problems with the car. The Kennamers contend that they stopped making the monthly payments required under the installment contract because of the mechanical problems. Although the Kennamers were aware that the car had been involved in an accident when they purchased it, they discovered that the damage to the car had been more extensive than they say they were told. According to the Kennamers, the dealership and its salesman misrepresented the extent of the damage to the car, and they relied upon those misrepresentations in purchasing the car. They confronted the dealership (who contacted Ford Credit) with the allegations, but the dealership and Ford Credit refused to cancel the contract or to refund the Kennamers’ money.

On February 1, 2011, Ford Credit repossessed the car and sold it at an auction for $18,400. The sale at the auction resulted in the Kennamers having a balance owed on the purchase price of the car of $4,864, which, pursuant to the terms of the installment contract, the Kennamers were responsible for.

On November 2, 2011, Ford Credit sued the Kennamers in the district court in order to the collect the deficiency, along with attorney fees, interest, and court costs. The Kennamers filed an answer and subsequently responded to 18 interrogatory questions and 16 requests for admissions posed by Ford Credit. On April 10, 2012, Ford Credit filed a motion for a summary judgment, attaching the Kennamers’ responses in support of the motion. The Kennamers opposed summary judgment and stated that they intended to file a counterclaim against Ford Credit and intended to join the dealership as a party and to file a claim against it. The Kennamers stated that the amount of the counterclaim and the claim combined would exceed the jurisdiction of the district court. On July 9, 2012, the district court entered a summary judgment for Ford Credit and awarded Ford Credit $4,364 and an attorney fee of $654, along with court costs. On July 23, 2012, the Kennamers filed a postjudgment motion seeking to alter, amend, or vacate the judgment or, in the alternative, a new trial. The postjudgment motion was denied by operation of law. On August 15, 2012, the Kennamers timely filed an appeal to the circuit court.

On August 31, 2012, Ford Credit filed a summary-judgment motion, attaching documents from the district-court action. On September 14, 2012, the Kennamers filed a counterclaim against Ford Credit, alleging fraud, breach of contract, negligence, wantonness, and intentional infliction of emotional distress. That same day, the Ken-namers moved to serve a complaint on the dealership, alleging fraud and breach of contract. In their complaint against the dealership, the Kennamers also alleged that “if [the Kennamers] are liable to [Ford Credit] on the claims presented in [Ford Credit’s] complaint, they are liable because of the acts and omissions of [the dealership].”

On October 3, 2012, Ford Credit filed a motion to dismiss the Kennamers’ counterclaim on the ground that the counterclaim failed to state a claim upon which relief may be granted. On October 12, 2012, the circuit court denied Ford Credit’s motion to dismiss and granted the Kennamers’ motion to serve the dealership.

On October 26, 2012, Ford Credit filed a motion to compel arbitration and attached to the motion a copy of the installment contract. On November 6, 2012, the dealership filed a motion to dismiss or, in the alternative, to compel arbitration based on the arbitration agreement between the dealership and the Kennamers. The dealership attached an affidavit from its general manager, which provided:

“The automobile in question was manufactured out of state and delivered into Alabama prior to the sale to Mr. and Mrs. Kennamer. As part of the purchase process, the majority of the purchase price was paid by receipt of a loan from Ford Motor Credit Co., Inc., a corporation foreign to Alabama, with such money coming into Alabama from out of state.
“Furthermore, various aspects of the sale were regulated by federal laws, including, the Federal Truth-in-Lending Act, the Federal Trade Commission’s Holder in Due Course regulations, the Federal Odometer Act (the Motor Vehicle Information and Cost Savings Act), and the Magnuson Moss Warranty Act.
The transaction as a whole substantially involved and affected interstate commerce.”

On December 12, 2012, the Kennamers responded and attached an affidavit in support of their opposition to both motions to compel. The Kennamers argued that Ford Credit and the dealership (as the assignor of the installment contract) waived their rights to arbitrate because Ford Credit had sought discovery in the district court, had filed a summary-judgment motion, and had obtained a judgment against the Kennamers in the district court. The Kennamers argued that, in order to avoid the res judicata effect of the district-court judgment, they had had to appeal that judgment to the circuit court and had incurred litigation expenses, such as court costs and attorney fees, in doing so. The Kennamers also argued that they were required to file their claims against Ford Credit and the dealership shortly after filing their appeal to the circuit court in accordance with Rule 13(j), Ala. R. Civ. P. Additionally, the Kennamers argued that the transaction did not involve interstate commerce so as to mandate arbitration.

On December 14, 2012, the dealership filed a response, arguing that the transaction involved interstate commerce. The dealership also argued that it was not a party to the district-court action and that, after being served with notice of the circuit-court action, it filed an answer and a motion to dismiss or, in the alternative, a motion to compel arbitration. The dealership argued that the Kennamers were not substantially prejudiced by its actions in filing an answer and a motion to dismiss. That same day, the Kennamers filed a response to the motions to compel, contending that if the circuit court compelled arbitration of their claims against the dealership then there should be one arbitration proceeding before the American Arbitration Association (“AAA”) instead of a separate arbitration proceeding for the dealership pursuant to the rules of the Better Business Bureau as provided for in the arbitration agreement between the Ken-namers and the dealership.

On December 21, 2012, the circuit court granted the motions to compel arbitration and stayed the action pending confirmation of the outcome of the arbitration. On January 16, 2013, the Kennamers filed a motion to alter, amend, or vacate the judgment and/or seeking clarification. On January 22, 2013, the dealership filed a response, agreeing to participate in a single arbitration proceeding before the AAA.

On January 28, 2013, the circuit court entered an order denying the post-judgment motions but clarifying that there would be one arbitration proceeding before the AAA. On March 11, 2013, the Kennam-ers filed a notice of appeal.

Standard of Review
“ ‘This Court reviews de novo the denial of a motion to compel arbitration. Parkway Dodge, Inc. v. Yarbrough, 779 So.2d 1205 (Ala.2000). A motion to compel arbitration is analogous to a motion for a summary judgment. TranSouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala.1999). The party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that the contract evidences a transaction affecting interstate commerce. Id. “[A]fter a motion to compel arbitration has been made and supported, the burden is on the non-movant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.” Jim Burke Automotive, Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (Ala.1995) (opinion on application for rehearing).’ ”

Elizabeth Homes, L.L.C. v. Gantt, 882 So.2d 813, 315 (Ala.2003) (quoting Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala.2000)).

“It is well settled under Alabama law that a party may waive its right to arbitrate a dispute if it substantially invokes the litigation process and thereby substantially prejudices the party opposing arbitration. Whether a party’s participation in an action amounts to an enforceable waiver of its right to arbitrate depends on whether the participation bespeaks an intention to abandon the right in favor of the judicial process, and, if so, whether the opposing party would be prejudiced by a subsequent order requiring it to submit to arbitration. No rigid rule exists for determining what constitutes a waiver of the right to arbitrate; the determination as to whether there has been a waiver must, instead, be based on the particular facts of each case.”

Companion Life Ins. Co. v. Whitesell Mfg., Inc., 670 So.2d 897, 899 (Ala.1995).

“In order to demonstrate that the right to arbitrate a dispute has been waived, the party opposing arbitration must demonstrate both (1) that the party seeking arbitration substantially invoked the litigation process, and (2) that the party opposing arbitration would be substantially prejudiced by an order requiring it to submit to arbitration.” SouthTrust Bank v. Bowen, 959 So.2d 624, 633 (Ala. 2006). Additionally, “[o]ur cases continue to make it clear that, because of the strong federal policy favoring arbitration, a waiver of the right to compel arbitration will not be lightly inferred, and, therefore, that one seeking to prove waiver has a heavy burden.” Mutual Assurance, Inc. v. Wilson, 716 So.2d 1160,1164 (Ala.1998).

Discussion

The Kennamers presented the following facts in support of their contention that their transaction with the dealership and Ford Credit did not involve interstate commerce: (1) the Kennamers are residents of Alabama; (2) the previous owners of the car the Kennamers purchased were residents of Alabama; (3) the Kennamers were buying the car for consumer, not commercial, purposes; (4) the dealership is located in Alabama; (5) the car was delivered to the Kennamers in Alabama; and (6) all the substantial obligations arising out of the installment contract were to be performed in Alabama. The Kennamers argue that the dealership and Ford Credit failed to present sufficient evidence showing that the transaction involved interstate commerce.

The Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“the FAA”), “mandates the arbitration of claims encompassed by an arbitration clause that is contained in a binding contract that involves interstate commerce.” Ex parte Conference America, Inc., 713 So.2d. 953, 955 (Ala.1998). “The FAA ‘provides for “the enforcement of arbitration agreements within the full reach of the Commerce Clause.” ’ ” Wolff Motor Co. v. White, 869 So.2d 1129, 1132 (Ala.2003) (quoting Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 56, 123 S.Ct. 2037, 156 L.Ed.2d 46 (2003), quoting in turn Perry v. Thomas, 482 U.S. 483, 490, 107 S.Ct. 2520, 96 L.Ed.2d 426 (1987)).

“It is well established that Congress can regulate three broad categories of activity pursuant to its commerce power: (1) the use of the channels of interstate commerce; (2) the instrumentalities of interstate commerce or persons or things in interstate commerce; and (3) those general activities having a substantial effect on interstate commerce.” Wolff Motor Co., 869 So.2d at 1132. Previously, this Court has recognized the purchase of a used car from a dealer as a transaction involving interstate commerce. See Dan Wachtel Ford, Lincoln, Mercury, Inc. v. Modas, 891 So.2d 287 (Ala.2004) (holding that the dealer established that the purchase of the used car involved interstate commerce where there was evidence that the car was manufactured outside Alabama, a credit report was obtained from an out-of-state company, the buyer purchased an extended warranty from an out-of-state company, and various aspects of the dealer’s business were regulated by federal law); Serra Toyota, Inc. v. Johnson, 876 So.2d 1125 (Ala.2003) (holding that dealer established that the used-car purchase involved interstate commerce where the dealer submitted evidence that the car was manufactured outside Alabama, the purchaser bought an extended warranty from an out-of-state company, the previous owner lived outside Alabama, and the dealer had purchased the car from an out-of-state bank).

In the present case, the circuit court had before it the affidavit from the general manager of the dealership that stated that the car the Kennamers purchased was manufactured outside Alabama, that the majority of the purchase price was financed by Ford Credit, an out-of-state company, and that the transaction was regulated by several federal laws. Other information before the circuit court indicated that a vehicle-history report obtained by the dealership at the time the Kennamers purchased the car was performed by an out-of-state company. We also note that, after Ford Credit repossessed the car, it was sold at an out-of-state auction. Accordingly, we cannot say that the circuit court erred in concluding that instrumentalities of interstate commerce were involved in the transaction.

Next, the Kennamers argue that Ford Credit and the dealership waived their right to arbitration by substantially invoking the litigation process. Specifically, the Kennamers argue that Ford Credit waived its right by filing an action in the district court, by conducting written discovery, and by obtaining a judgment and causing the Kennamers to appeal to the circuit court for a trial de novo and to bring their counterclaim against Ford Credit and their claim against the dealership. Although the dealership was not a party to the district-court action, the Ken-namers contend that because “Ford Credit as assignee pursued [the dealership’s] claim through to judgment in the district court, the [dealership] as assignor must also be deemed to have waived arbitration of those claims.” (Kennamers’ brief, p. 33.)

“It is well settled under Alabama law that a party may waive its right to arbitrate a dispute if it substantially invokes the litigation process and thereby substantially prejudices the party opposing arbitration. Whether a party’s participation in an action amounts to an enforceable waiver of its right to arbitrate depends on whether the participation bespeaks of an intention to abandon the right in favor of the judicial process and, if so, whether the opposing party would be prejudiced by a subsequent order requiring it to submit to arbitration. No rigid rule exists for determining what constitutes a waiver of the right to arbitrate; the determination as to whether there has been a waiver must, instead, be based on the particular facts of each case.”

Companion Life, 670 So.2d at 899.

“Both substantial invocation of the litigation process and prejudice must be present to establish waiver. Ex parte Merrill Lynch, Pierce, Fenner & Smith, Inc., 494 So.2d 1 (Ala.1986). Because of the strong federal policy applicable to arbitration proceedings set forth in the Federal Arbitration Act, 9 U.S.C. § 1 et seq., one seeking to establish a waiver of arbitration bears a heavy burden. SouthTrust Bank v. Bowen, 959 So.2d 624 (Ala.2006); Mutual Assurance, Inc. v. Wilson, 716 So.2d 1160 (Ala.1998).”

Paw Paw’s Camper City, Inc. v. Hayman, 973 So.2d 344, 347 (Ala.2007).

“ ‘Prejudice to the party opposing arbitration, not prejudice to the party seeking arbitration, is determinative of whether a court should deny arbitration on the basis of waiver.’ Price [v. Drexel Burnham Lambert, Inc.], 791 F.2d [1156,] 1162 [(5th Cir.1986) ] (footnote omitted). ‘Both delay and the extent of the moving party’s participation in judicial proceedings are material factors in assessing a plea of prejudice.’ Frye [v. Paine, Webber, Jackson & Curtis, Inc.], 877 F.2d [396,] 399 [ (5th Cir.1989) ].
“‘Prejudice has been found in situations where the party seeking arbitration allows the opposing party to undergo the types of litigation expenses that arbitration was designed to alleviate.’ Morewitz v. West of England Ship Owners Mut. Protection & Indem. Ass’n, 62 F.3d 1356, 1366 (11th Cir.1995). ‘Sufficient prejudice to infer waiver might be found, for example, if the party seeking the stay [for arbitration] took advantage of judicial discovery procedures not available in arbitration.’ Carcich v. Rederi A/B Nordie, 389 F.2d 692, 696 n. 7 (2d Cir.1968).”

Hales v. ProEquities, Inc., 885 So.2d 100, 105-06 (Ala.2003).

First, we will address the Ken-namers’ waiver argument as to Ford Credit. In the district court, Ford Credit pursued its claim against the Kennamers seeking the deficiency owed on the loan following the sale of the car at auction. Ford Credit sought limited discovery, and, ultimately, the district court entered a judgment in its favor. Although we recognize that discovery is limited in a district court and that Ford Credit sought answers to a small number of interrogatory requests and requests for admissions to support its summary-judgment motion, Ford Credit’s acts in pursuing its claim against the Kennamers evinced a desire to resolve the dispute to judgment in a court of record through litigation rather than arbitration. The Kennamers have shown that they suffered prejudice in that they had to pay court costs to appeal the district court’s judgment in favor of Ford Credit, a cost not associated with arbitration. Also, the Kennamers incurred legal fees while the case was pending in the district court, and there was an 11-month delay from the time Ford Credit filed its action in the district court and the time that it moved to compel arbitration in the circuit court.

We now turn to the Kennam-ers’ argument that the dealership is bound by Ford Credit’s actions in the district court because, they argue, the dealership assigned its rights and liabilities under the installment contract to Ford Credit. In support of its argument, the Kennamers cite authority for the general proposition that an assignee stands in the shoes of the assignor. It is well settled that general propositions of law are not supporting authority for purposes of Rule 28(a)(10), Ala.R.App. P. Allsopp v. Bolding, 86 So.3d 952 (Ala.2011).

“This Court will not ‘create legal arguments for a party based on undelineated general propositions unsupported by authority or argument.’ Spradlin v. Spradlin, 601 So.2d 76, 79 (Ala.1992). Further, it is well settled that ‘ “[w]here an appellant fails to cite any authority for an argument, this Court may affirm the judgment as to those issues, for it is neither this Court’s duty nor its function to perform all the legal research for an appellant.’” Spradlin v. Birmingham Airport Auth., 613 So.2d 347, 348 (Ala.1993) (quoting Sea Calm Shipping Co., S.A. v. Cooks, 565 So.2d 212, 216 (Ala.1990)).”

Allsopp, 86 So.3d at 960.

Even if the Kennamers had properly supported their argument regarding assignment, it would not support their contention that the dealership is bound by Ford Credit’s actions in district court. In this case, Ford Credit provided the dealership with financing for used-car purchasers like the Kennamers. Ford Credit supplied the dealership with blank retail-installment-contract forms to filled in by the dealership and the purchaser before the contract is signed. The dealership then assigns the completed contract to Ford Credit, and Ford Credit administers and collects the loan from the purchaser. “An assignment is a contractual transfer of a right, interest, or claim from one person to another.” 6A C.J.S. Assignments § 1 (2004). “ ‘Unless the assignment is void or otherwise invalid, [the assignor losses] all right to control or enforce the terms of the note....’” Associates of Selma, Inc. v. Whetstone, 628 So.2d 578, 580 (Ala.1993) (quoting 6A C.J.S. Assignments § 96, p. 753 (1975)). Generally, an assignment extinguishes the right of the assignor and transfers it to the assignee. DuPont v. Yellow Cab Co. of Birmingham, Inc., 565 So.2d 190 (Ala.1990). The assignee then stands in the shoes of the assignor and succeeds to all the rights and remedies of the assignor. Atlantic Nat’l Trust, LLC v. McNamee, 984 So.2d 375 (Ala.2007).

In Nissan Motor Acceptance Corp. v. Ross, 703 So.2d 324, (Ala.1997), the purchaser bought a new car from a dealership. The purchaser and the dealership entered into a retail-buyer’s order, which contained an arbitration clause. They also entered into a retail-sales contract. Nissan became a party to the retail-sales contract when the dealership assigned it to Nissan. The retail-sales contract contained an arbitration clause. Nissan argued that, through the assignment, it stepped into the shoes of the assignor, the dealership, and could enforce the arbitration provision. We stated:

“As an assignee, Nissan simply steps into the shoes of the assignor, Jim Burke, a signatory to the arbitration agreement. Upchurch v. West, 234 Ala. 604, 609, 176 So. 186, 190 (1937), overruled on other grounds, Dominex, Inc. v. Key, 456 So.2d 1047 (Ala.1984). A valid assignment gives the assignee the same rights,- benefits, and remedies that the assignor possesses. Id. Accord John D. Calamari & Joseph M. Perillo, The Law of Contracts, § 18-3 at 633, 634 (2d ed.1977). Thus, Nissan has the right to compel arbitration. See, e.g., IS. Joseph Co. v. Michigan Sugar Co., 803 F.2d 396, 400 (8th Cir.1986) (stating that, assuming a valid assignment, the assignee could enforce an arbitration provision entered into by the assignor); Chatham Shipping Co. v. Fertex S.S. Corp., 352 F.2d 291, 294 (2d Cir.1965) (stating that ‘absent contrary expression, assignment of a contract carries with it a right to arbitration therein provided’); Gruntal & Co. v. Steinberg, 843 F.Supp. 1 (D.N.J.1994) (stating that ‘a successor to or assignee of a contract containing an arbitration clause may be obligated to arbitrate pursuant to that arbitration clause’); Banque de Paris et des Pays-Bas v. Amoco Oil Co., 573 F.Supp. 1464 (S.D.N.Y.1983) (stating that an assignee may pursue the claims of the assignor and may enforce an arbitration provision ■ the assignor had agreed to).”

703 So.2d at 326.

In this case, that means because of the dealership’s assignment to Ford Credit, Ford Credit stands in the shoes of the dealership, and the dealership no longer has any interest in the contract. Ford Credit can enforce the terms of the contract in any manner or any forum it chooses, but the dealership cannot. However, the dealership’s assignment to Ford Credit does not make the dealership bound by Ford Credit’s actions in the district court. Consequently, the dealership cannot enforce the arbitration clause under the installment contract either, because it assigned its right and liabilities to Ford Credit. Nevertheless, the dealership had a separate arbitration agreement with the Kennamers.

The dealership did not participate in the district-court litigation. The dealership, after being served with the complaint in the circuit court, filed an answer and a motion to dismiss or, in the alternative, to compel arbitration. “‘Merely answering on the merits, asserting a counterclaim (or cross-claim) or participating in discovery, without more, will not constitute waiver.’ ” ClimaStor IV, LLC v. Marshall Constr., LLC, 4 So.3d 452, 458 (Ala.2008)(quoting Voyager Life Ins. Co. v. Hughes, 841 So.2d 1216,1219 (Ala.2001)).

Although the issue is not addressed by the parties, we recognize that enforcing arbitration of related claims as to one defendant but not another may lead to inconsistent results and a lack of judicial economy. The United States Supreme Court has recognized that, even though ordering arbitration as to fewer than all defendants may result in proceedings in two forums, the FAA “requires piecemeal resolution when necessary to give effect to an arbitration agreement.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 19, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). In Moses H. Cone, the hospital had contractually agreed to arbitrate any disputes it had with Mercury Construction. The hospital had a dispute with Mercury and an architect with whom the hospital had not entered into an arbitration agreement. The Supreme Court recognized that the hospital’s related dispute with' the architect could not prevent enforcement of its valid arbitration agreement with Mercury. The Supreme Court also recognized that if “the dispute between Mercury and the Hospital is arbitrable under the [United States Arbitration] Act [now the FAA], then the Hospital’s two disputes will be resolved separately — one' in arbitration, and the other (if at all) in state-court litigation.” 460 U.S. at 20. The United States Supreme Court did not require arbitration of the hospital’s dispute with the architect in the absence of an agreement to arbitrate between the two, even where the two disputes were closely related. Id. Similarly, Ford Credit’s waiver of its right to arbitrate does not prevent this Court from enforcing the separate arbitration agreement between the dealership and the Ken-namers.

Conclusion

The judgment of the circuit court is affirmed insofar as it granted the dealership’s motion to compel arbitration and reversed insofar as it granted Ford Credit’s motion to compel arbitration. This cause is remanded for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

STUART, PARKER, MURDOCK, SHAW, WISE, and BRYAN, JJ„ concur.

MAIN, J., dissents.

      . Rule 13(j), Ala. R. Civ. P., addresses the filing of counterclaims and cross-claims in actions appealed to the circuit court for a trial de novo.

      . Arbitration may be compelled under the doctrine of intertwining where arbitrable and nonarbitrable claims are so closely related that the party to a controversy subject to arbitration is equitably estopped from denying arbitrability of the related claim. Jenkins v. Atelier Homes, Inc., 62 So.3d 504 (Ala.2010). The intertwining-claims doctrine applies to claims and not to parties and precludes arbitration only where there are nonarbitrable claims against a party that are factually intertwined with arbitrable claims against that same party. Also, a nonsignatory can be bound to an arbitration agreement when the nonsignatory is also a third-party beneficiary to the contract containing the arbitration clause. Edwards v. Costner, 979 So.2d 757 (Ala.2007). Neither of those exceptions is applicable here.


source: Caselaw Access Project

author: PER CURIAM. MURDOCK, Justice

license: Public Domain

text:
    Wayne MORROW v. Shameka CALDWELL, as mother and next friend of Keandarick Russell, a deceased minor.
    1111359.
    Supreme Court of Alabama.
    March 14, 2014.

      Joseph Lister Hubbard, Jr., and G. Baron Coleman of Hubbard Coleman, P.C., Montgomery, for appellant.
    Blaine C. Stevens and Michael G. Strickland of Strickland & Kendall, L.L.C., Montgomery, for appellee.
    Lorelei Lein, gen. counsel, Alabama League of Municipalities, for amicus curiae Alabama League of Municipalities, in support of the appellant.
    J. Bentley Owens III and Sybil V. Newton of Starnes Davis Florie LLP, Birmingham; and J. Ken Thompson, gen. counsel, Jefferson County Mayors Association, Ir-ondale, for amicus curiae Jefferson County Mayors Association, joining in brief of the Alabama League of Municipalities, in support of the appellant.
    James H. Pike of Shealy, Crum & Pike, P.C., Dothan, for amicus curiae City of Ozark, in support of the appellant.
    William H. Webster and Scott M. Spea-gle of Webster, Henry, Lyons, White, Bradwell & Black, P.C., Montgomery; Melody H. Eagan of Lightfoot, Franklin & White, LLC, Birmingham; and Sharon D. Stuart of Christian & Small, LLP, Birmingham, for amicus curiae Alabama Defense Lawyers Association, in support of the appellant.
    David G. Wirtes, Jr., and George M. Dent III of Cunningham Bounds, LLC, Mobile; Bruce J. McKee of Hare Wynn Newell & Newton, LLP, Birmingham; and Leila H. Watson of Cory Watson Crowder & DeGaris, PC, Birmingham, for amicus curiae Alabama Association for Justice, in support of the appellee.
   PER CURIAM.

Wayne Morrow filed a permissive appeal pursuant to Rule 5, Ala. RApp. P., from the Montgomery Circuit Court’s order denying Morrow’s request for a judgment declaring that the $100,000 cap on damages in § 11-47-190, Ala.Code 1975, applies to Morrow, a municipal employee who was sued in his individual capacity. We affirm the trial court’s order.

Facts and Procedural History

In January 2009, Alice Yu sought to have Alabama Power Company (“Alabama Power”) restore electrical service in her name at a commercial building she was leasing at 1940 N. Ripley Street in Montgomery (“the premises”). Because the premises had been without power for approximately eight months, the City of Montgomery (“the City”) had to perform an electrical inspection of the premises and clear the premises for service before Alabama Power could restore electrical service. On January 29, 2009, Morrow, who was an electrical inspector with the City, inspected the premises. Morrow stated that there was a raised concrete pad at the back of the building and that there was an air-conditioning system on the raised concrete pad. Morrow also stated that there was a chain-link fence around the entire concrete pad, that the entry to the system was by a locked gate, and that the top of the fence was also enclosed by a chain-link fence that went over the air-conditioning system and was secured to the building. Morrow stated that, above the concrete pad, there was an electrical source that could be used to install a floodlight (“the electrical source”) and that the electrical source was covered by a circular, weatherproof junction box. Morrow further stated that he did not find any electrical defects or any dangerous conditions with regard to the electrical system and that he approved the premises for the restoration of power. On January 30, 2009, Alabama Power restored power to the premises.

On June 30, 2009, Keandarick Russell, a minor, was staying with his great-grandmother, who lived next door to the premises. Russell, who was playing on the concrete pad on which the air-conditioning system was located, was electrocuted when he came in contact with the chain-link fence. When the incident occurred, the gate in the fence was broken, the top part of the enclosure had been rolled back and was resting against the wall of the building, and the wires from the electrical source were not covered by a junction box. The wires from the electrical source had come in contact with a portion of the fence, and, as a result, the fence had become electrified and Russell was electrocuted-when he touched the fence.

On June 17, 2010, Shameka Caldwell, as Russell’s mother and next friend, filed a wrongful-death action against multiple defendants, including fictitiously named defendants. On September 2, 2010, Caldwell amended her complaint to substitute Morrow and Yu for two of the fictitiously námed defendants. In the amended complaint, Caldwell alleged that Morrow had negligently, recklessly, and/or wantonly inspected the premises and had negligently, recklessly, and/or wantonly allowed electrical service to be restored to the premises. In his answer, Morrow asserted that he was entitled to State immunity, to State-agent immunity, and to qualified immunity.

On March 15, 2011, Caldwell filed a second amended complaint. In the second amended complaint, Caldwell stated that Morrow “is sued herein in his individual capacity for his individual acts of negligence and wantonness which caused or contributed to cause the death of Keandar-ick Russell.” Also, in her second amended complaint, Caldwell alleged that Morrow had acted “negligently and/or recklessly and/or wantonly and/or maliciously and/or willfully and/or with fraudulent conduct and/or in bad faith and/or intentionally and/or beyond his authority and/or under a mistaken interpretation of the law” when he inspected the premises; that he had been “negligent and/or wanton and/or reckless and/or malicious and/or willful and/or [had acted] with fraudulent conduct and/or in bad faith and/or intentionally and/or beyond his authority and/or under a mistaken interpretation of the law” when he allegedly did not follow proper protocol and procedures for inspecting the premises for electrical service; and that Morrow had negligently, recklessly, and/or wantonly allowed electrical service to be restored to the premises. Finally, in the second amended complaint, Caldwell stated that Morrow had “acted negligently and/or wantonly in this case and this action is brought against him specifically in his individual capacity.” In his answer to the second amended complaint, Morrow again alleged that he was entitled to State immunity, to State-agent immunity, and to qualified immunity.

On July 1, 2011, Morrow filed a motion for a summary judgment in which he argued that he was entitled to State-agent immunity under Ex parte Cranman, 792 So.2d 392 (Ala.2000). In her brief in opposition to Morrow’s summary-judgment motion, Caldwell argued that she had presented evidence that created a reasonable inference that Morrow was not entitled to State-agent immunity under Cranman because, she says, he “failed to enforce the [National Electrical Code] as he was required and failed to follow the dictates of the Electrical Ordinance of the City of Montgomery in a willful manner and in complete disregard for the safety of others.” The trial court denied Morrow’s summary-judgment motion. Subsequently, Morrow filed a petition for a writ of mandamus with this Court, in which he asked this Court to compel the trial court to enter a summary judgment in his favor on the basis of State-agent immunity. This Court denied the petition without ordering an answer and briefs. (No. 1101312, August 31, 2011.)

On May 25, 2012, Morrow filed a motion asking the trial court for “a judgment declaring the statutory limitations of liability of $100,000, pursuant to Ala.Code 1975, § 11-47-190, are applicable to Defendant Wayne Morrow in this case.” Caldwell filed a response to Morrow’s request for a declaratory judgment in which she contended that the statutory cap on recovery set forth in § 11-47-190 for damages against a municipality would not apply to the claims in this case because the claims were brought against Morrow in his individual capacity and because she alleged that Morrow had acted recklessly, wantonly, or willfully.

On June 27, 2012, the trial court entered an order denying Morrow’s request for a judgment declaring § 11^47-190 applicable in which it stated, in pertinent part:

“The law concerning caps on damages against municipalities and their employees appears to be unsettled at the present time. As best this Court can discern the law, this Court would find the issue in favor of [Caldwell] and holds that the caps would not apply to damages attributable to wanton conduct by Morrow when sued in his individual capacity.”

On June 28, 2012, Morrow filed a motion in which he requested that the trial court “certify the question of the extent to which any individual capacity claim against Morrow is limited to $100,000 under Ala.Code § 11-47-190, and to stay the proceedings pending the filing of a petition for interlocutory appeal, pursuant to Rule 5, Ala. R.App. P.” The trial court provided the certification necessary for an interlocutory appeal pursuant to Rule 5, Ala. RApp. P.

Subsequently, Morrow filed a petition for permissive .appeal in this Court. This Court granted the petition.

Discussion

The trial court’s certification included the following controlling question of law for permissive appeal:

“Whether the claims against a municipal employee, sued in his individual capacity, are subject to the statutory cap of Ala.Code 1975, § 11-47-190, when those claims fall within the ‘willful or wanton’ exception to the doctrine of State-agent immunity, under Ex parte Cranman, 792 So.2d 392 (Ala.2000).”

This case presents a pure question of law. This Court has held: “ ‘ “[0]n appeal, the ruling on a question of law carries no presumption of correctness, and this Court’s review is de novo.”’ Rogers Found. Repair, Inc. v. Powell, 748 So.2d 869, 871 (Ala.1999) (quoting Ex parte Graham, 702 So.2d 1215, 1221 (Ala.1997)).” City of Prattville v. Corley, 892 So.2d 845, 847 (Ala.2003).

In answering the trial court’s question, we are guided by the following principles of statutory construction:

‘“In determining the meaning of a statute, this Court looks to the plain meaning of the words as written by the legislature.’ DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270, 275 (Ala.1998).
“ ‘ “Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.” ’
“Blue Cross & Blue Shield of Alabama, Inc. v. Nielsen, 714 So.2d 293, 296 (Ala.1998) (quoting IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992)).”

City of Prattville v. Corley, 892 So.2d at 848.

“In Archer v. Estate of Archer, 45 So.3d 1259, 1263 (Ala.2010), this Court described its responsibilities when construing a statute:
“ ‘ “ ‘[I]t is this Court’s responsibility in a case involving statutory construction to give effect to the legislature’s intent in enacting a statute when that intent is manifested in the wording of the statute....
“ ‘ “ ‘[I]f the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.’ ” ’” ... In determining the intent of the legislature, we must examine the statute as a whole and, if possible, give effect to each section.’
“ ‘ “Ex parte Exxon Mobil Corp., 926 So.2d 303, 309 (Ala.2005). Further,
“ ‘ “ “when determining legislative intent from the language used in a statute, a court may explain the language, but it may not detract from or add to the statute.... When the language is clear, there is no room for judicial construction....’
“ ‘ “Water Works & Sewer Bd. of Selma v. Randolph, 833 So.2d 604, 607 (Ala.2002).” ’
“(Quoting Ex parte Birmingham Bd. of Educ., 45, So.3d 764, 767 (Ala.2009).) Similarly, in Lambert v. Wilcox County Commission, 623 So.2d 727, 729 (Ala.1993), the Court stated:
“ ‘ “The fundamental rule of statutory construction is that this Court is to ascertain and effectuate the legislative intent as expressed in the statute.... In this ascertainment, we must look to the entire Act instead of isolated phrases or clauses ... and words are given their plain and usual meaning. ... Moreover, just as statutes dealing with the same subject are in pari materia and should be construed together, ... parts of the same statute are in pari materia and each part is entitled to equal weight.” ’
“(Quoting Darks Dairy, Inc. v. Alabama Dairy Comm’n, 367 So.2d 1378, 1380-81 (Ala.1979).)”

First Union Nat’l Bank of Florida v. Lee Cnty. Comm’n, 75 So.3d 105, 111-12 (Ala.2011).

Morrow argues that the plain language of § 11-47-190 clearly dictates that the $100,000 statutory cap on recovery would apply to the claims against him even though he is being sued in his individual capacity and even though Caldwell is alleging that he acted recklessly, willfully, and wantonly. This Court has not yet addressed whether the statutory cap on recovery set forth in § 11^7-190 would apply to limit the liability of municipal employees sued in their individual capacity.

Section 11 — 47—190, Ala.Code 1975, provides:

“No city or town shall be liable for damages for injury done to or wrong suffered by any person or corporation, unless such injury or wrong was done or suffered through the neglect, carelessness, or unskillfulness of some agent, officer, or employee of the municipality engaged in work therefor and while acting in the line of his or her duty, or unless the said injury or wrong was done or suffered through the neglect or carelessness or failure to remedy some defect in the streets, alleys, public ways, or buildings after the same had been called to the attention of the council or other governing body or after the same had existed for such an unreasonable length of time as to raise a presumption of knowledge of such defect on the part of the council or other governing body and whenever the city or town shall be made liable for damages by reason of the unauthorized or wrongful acts or negligence, carelessness, or unskillfulness of any person or corporation, then such person or corporation shall be liable to an action on the same account by the party so injured. However, no recovery may be had under any judgment or combination of judgments, whether direct or by way of indemnity under Section ll-k7-2k, or otherwise, arising out of a single occurrence, against a municipality, and/or any officer or officers, or employee or employees, or agents thereof, in excess of a total $100,000 per injured person up to a maximum of $300,000 per single occurrence, the limits set out in the provisions of Section 11-93-2 notwithstanding.”

(Emphasis added.)

The first sentence of § 11-47-190 recognizes the principle that municipalities are generally immune from suit (“No city or town shall be liable for damages....”) and then provides an exception for actions seeking damages for the negligent acts of the agents or employees of municipalities (“unless such injury or wrong was done or suffered through the neglect, carelessness, or unskillfulness of some agent, officer, or employee”). There is no exception in the statute allowing an action against a municipality for the wanton or willful conduct of its agents or employees. Cremeens v. City of Montgomery, 779 So.2d. 1190, 1201 (Ala.2000) (“A municipality cannot be held liable for the intentional torts of its employees. See Ala.Code 1975, § 11-47-190.... ”); Town of Loxley v. Coleman, 720 So.2d 907, 909 (Ala.1998) (“This Court has construed § 11 — 47—190 to exclude liability for wanton misconduct.”).

Further, this Court has interpreted the first sentence of § 11-47-190 as serving

“to limit municipality liability to two distinct classes. In the first classification, the municipality may be liable, under the doctrine of respondeat superior, for injuries resulting from the ■wrongful conduct of its agents' or officers in the line of duty. In the second classification, the municipality may be liable for injuries resulting from its failure to remedy conditions created or allowed to exist on the streets, alleys, public ways, etc., by ⅛ person or corporation not related in service to the municipality.’ Isbell v. City of Huntsville, 295 Ala. 380, 380 So.2d 607, 609 (1976); City of Birmingham, v. Carle, 191 Ala. 539, 542, 68 So. 22, 23 (1915). The municipality must have actual or constructive notice of the condition. If the claim is predicated under the second classification, then the third party shall also be liable. Isbell, supra, 330 So.2d at 609, Carle, 191 Ala. at 541-42, 68 So. at 23.”

Ellison v. Town of Brookside, 481 So.2d 890, 891-92 (Ala.1985).

The second sentence of § 11^47-190, which provides a cap on any recovery on a judgment resulting therefrom, begins with the word “however.” The use of the sentence adverb (or conjunctive adverb) “however” indicates that the second sentence modifies the preceding sentence. Thus, it sets a limit on the “recovery” stemming from a “judgment” or “judgments” that result from the liability allowed by the exception contained in the first sentence. So, while the first sentence provides that a municipality may be liable for the negligent acts of its agents or employees, the second sentence, by starting with the word “however,” limits the “recovery” from any such resulting “judgment.” In other words, the “recovery” that is capped to $100,000 by the second sentence is the recovery for any liability in a negligence action allowed by the first sentence. Thus, when the second sentence of § 11-47-190 is read in light of the first sentence, it is clear that the second sentence is meant to be a limitation on the amount of damages a person or corporation may recover from a municipality in those limited situations in which the municipality may be held liable.

Morrow advances a different reading of the second sentence of § 11^47-190. Specifically, he points to the language that “no recovery may be had under any judgment ... against ... any ... employee ... in excess of’ $100,000 and contends that this provides a blanket cap on any damages awarded against any municipal agent or employee in any action. In other words, he would interpret the second sentence as limiting recovery from actions that are different from the actions allowed by the first sentence, including recovery in actions alleging wanton or willful conduct against municipal employees in their individual capacity. This reading of § 11-47-190 improperly disconnects the second sentence from the context of the entire section and fails to acknowledge the conjunctive adverb “however” that links the second sentence to, and causes it to modify, the first sentence.

Further, it is clear that the reference to judgments against “any officer or officers, or employee or employees, or agents” in the second sentence is made because of the need to be clear that municipal liability is limited to $100,000 even where that liability is a function of an action against one of those persons in their official capacity or of the special statutory indemnity imposed on a municipality by 11-47-24, Ala.Code 1975. As to the former, in Smitherman v. Marshall County Commission, 746 So.2d 1001, 1007 (Ala.1999), this Court held that “claims against county commissioners and employees in their official capacity are, as a matter of law, claims against the county and subject to the $100,000 cap contained in § ll-93-2[, Ala.Code 1975, capping damages against governmental entities at $100,000].” Similarly, claims that are brought against municipal employees in their official capacity are also, as a matter of law, claims against the municipality.

By the same token, because of the need to be clear that municipal liability is limited to $100,000 even where that liability is a function of an action against a municipal employee in his or her official capacity or of the special statutory indemnity imposed on the city by 11-47-24, the second sentence of § 11-47-190 specifically addresses “judgments ... by way of indemnity under Section 11-47-24” that arise from judgments against “dny officer or officers, or employee or employees, or agents” of a municipality.

Section 11-47-24, Ala.Code 1975, provides:

“(a) Whenever any employee of a municipal corporation of the State of Alabama shall be sued for damages arising out of the performance of his official duties, and while operating a motor vehicle or equipment engaged in the course of his employment, such government agency shall be authorized and required to provide defense counsel for such employees in such suit and to indemnify him from any judgment rendered against him in such suit. In no event shall a municipal corporation of the state be required to provide defense and indemnity for employees who may be sued for damages arising out of actions which were either intentional or -willful or wanton.
“(b) All municipal corporations of the State of Alabama are hereby authorized to contract at governmental expense for policies of liability insurance to protect employees in the course of their employment.”

As this Court noted in Benson v. City of Birmingham, 659 So.2d 82, 87 (Ala.1995), by amending. § 11-47-190 in 1994 to add the second sentence, the legislature clarified the fact that the limitation on recovery against a municipality also limits the amount for which a municipality may indemnify a negligent employee.

Finally, no language in § 11-47-190 suggests that it is intended to apply to claims against municipal employees who are sued in their individual capacities. Rather, when the statute is read as a whole, it is clear that the limitation on recovery in the second sentence of § 11-47-190 is intended to protect the public coffers of the municipality, not to protect municipal employees from claims asserted against them in their individual capacity.

Conclusion

Because the plain language of § 11-47-190 does not limit the recovery on a claim against a municipal employee in his or her individual capacity, the $100,000 statutory cap on recovery set forth in § 11-47-190 would not apply to Caldwell’s claims against Morrow. Therefore, the trial court properly denied Morrow’s request for a judgment declaring that it would. Accordingly, we affirm the trial court’s order.

AFFIRMED.

STUART, BOLIN, PARKER, MAIN, WISE, and BRYAN, JJ., concur.

MURDOCK, J., concurs specially.

MOORE, C.J., concurs in the result.

MURDOCK, Justice

(concurring specially).

I fully concur in the main opinion and the reasoning therein. I write separately to further explain the basis for my concurrence.

I must confess that, until recently, I . found the provisions of §§ 11-47-190 and -191, Ala.Code 1975, confusing. The purpose of both sections appears to be to address the liability of municipal governments, but they seek to accomplish this with unusual clauses and categories, the meaning, need, and consistency of which are not readily apparent. I found the second sentence of § 11-47-190 particularly difficult to understand, given its multiple commas, conditional clauses, and especially the content and placement of the particular clause referring to judgments against “any officer or officers, employee or employees, or agents” of a municipality in the midst of a statute (two statutes if you include § 11417-191) otherwise singularly focused on municipal-governmental liability and protecting municipal-government coffers. Having recently examined the historical context in which the first predecessors of these statutes were enacted, as well as early decisions of this Court rendered not long after their enactment, see discussion infra, I have come to what I believe is a clearer understanding of these statutes, and I offer the following observations.

First, the provisions of § 11 — 47-190 must, of course, be read as a whole. Second, they must be read in pan materia with the provisions of § 11 — 47-191. Moreover, the provisions of § 11-47-190 must be read as a whole and in pari materia with those of § 11 — 47-191 within the unique historical context of the preexisting doctrine of local governmental immunity and the debate relating to that doctrine attendant to the adoption of the Alabama Constitution of 1901.

The common-law doctrine of governmental immunity for municipal and county governments predates not only the adoption of § 11-47-190 and its predecessors, but also the adoption of the 1901 Constitution. Nonetheless, the doctrine survived the adoption of that Constitution, including §§ 11 and 13 thereof. E.g., Garner v. Covington Cnty., 624 So.2d 1346 (Ala.1993); Home Indem. Co. v. Anders, 459 So.2d 836 (Ala.1984). Because it was in fact (and remains) a common-law doctrine, and not a Constitutional requirement, the doctrine of local governmental immunity was and is subject to modification by the legislature. Id.

Further, as noted, the doctrine of local governmental immunity was a doctrine concerned with protecting local governments, specifically, the public coffers maintained by those governments, see, e.g., Smith v. Schulte, 671 So.2d 1334 (Ala.1995), and Gamer. It afforded no protection to local-government employees when they might be sued in their individual capacity on the basis of some duty imposed upon them personally by tort law (e.g., the duty to use due care vis-á-vis other motorists while driving on public roadways on municipal or county business). As this Court explained in Anders, a case indicating that §§ 11-93-2, Ala.Code 1975 (also imposing a $100,000 cap on local governmental liability), and 11^17-190 should be construed in pari materia, the intent and effect of such statutes “must be addressed in the context of the unique status of counties and cities as governmental entities,” and actions against counties and municipalities “have always been subject to reasonable regulation by the legislature on a basis not applicable to actions against individuals and other entities.” 624 So.2d at 1351 (emphasis added). See Smith, 671 So.2d at 1343 (emphasizing that “the unique status of counties or cities” was “crucial to the rationale of Gamer” upholding § 11-93-2 against a constitutional challenge); Garner, 624 So.2d at 1351-54 (quoting at length portions of the convention debate regarding municipal governmental immunity and the ability of the legislature to abrogate it as it might see fit under the proposed constitution). See also, e.g., Health Care Auth. for Baptist Health v. Davis, [Ms. 1090084, May 17, 2013]-So.3d-,-(Ala.2013).

Thus, the fact and amount of liability by a municipal employee in his or her individual capacity were not and are not proper, or intended, subjects of the legislature’s enactment of §§ 11-47-190 and -191 and their predecessors. Instead, employees, officers, and agents of a municipality find themselves referenced in the last sentence of § 11-47-190 simply because of the need to be clear that governmental, liability is limited to $100,000 even where that liability is a function of an action against one of those persons in his or her official capacity or of the special statutory indemnity obligation imposed on the municipality by § 11-17-21, Ala.Code 1975. The legislature’s use of the word “however” to introduce the second sentence of § 11-47-190, and the relationship between the first and second sentences of § 11-47-190 that, as discussed in the main opinion, it reflects, simply reinforces this understanding.

As noted, the predecessors of §§ 11-47-190 and -191 date back to 1907, not long after the adoption of the 1901 Constitution and the debates over municipal liability that occurred at the convention that produced that constitution. The above-stated understanding of these statutes is informed, therefore, by a long line of cases, the first of which was decided in 1915. See City of Birmingham v. Carle, 191 Ala. 539, 68 So. 22 (1915) (explaining the meaning of the §§ 1273 and 1274, Ala.Code 1907); City of Birmingham v. Norwood, 220 Ala. 497,126 So. 619 (1930) (explaining §§ 2029 and 2030, Ala.Code 1923); City of Anniston v. Hillman, 220 Ala. 505, 126 So. 169 (1930); City of Birmingham v. Corr, 229 Ala. 321, 157 So. 56 (1934); City of Mobile v. Reeves, 249 Ala. 488, 31 So.2d 688 (1947) (explaining §§ 502 and 503, Title 37, Ala.Code 1940); Brown v. City of Fairhope, 265 Ala. 596, 93 So.2d 419 (1957); Smitherman v. Marshall Cnty. Comm’n, 746 So.2d 1001 (Ala.1999); Health Care Auth. for Baptist Health v. Davis, — So.3d at- (discussing the historical context and reasons for §§ 11-47-190 and -191); Ex parte City of Bessemer, 142 So.3d 543 (Ala.2013) (to like effect). See also Suttles v. Roy, 75 So.3d 90 (Ala.2010) (applying § 11-93-2, but indicating that that Code provision and § 11-47-190 are to be construed in pari materia).

Finally, I note that the question before us in this permissive appeal is limited to whether, if an employee of a municipality is personally liable for a tort he or she commits in the course of his or her employment by a municipality, that liability can exceed the $100,000 cap referenced in § 11-47-190. Any such liability, however, would of course depend as a threshold matter on the existence of a duty that was personal to the employee (not merely a duty of his or her employer) and that ran to the plaintiff (and not merely from the employee to his or her employer). This and other questions concerning the prospective liability of a municipal employee in Wayne Morrow’s position are not before us, and the main opinion should not be understood as implying any answer to them.

      . The test set forth in Cranman, a plurality opinion, was subsequently adopted by a majority of the Court in Ex parte Butts, 775 So.2d 173 (Ala.2000).

      . In Sutiles v. Roy, 75 So.3d 90 (Ala.2010), this Court held that, although the statutory cap on recovery against "a governmental entity” set forth in § 11-93-2, Ala.Code 1975, applied to an action against a municipal employee sued in his official capacity, it did not apply to an action against a municipal employee sued in his individual capacity. With regard to § 11-47-190, this Court noted:
      "Suttles and Homewood also state in the 'summary of argument' and the 'conclusion' portions of their brief that the plain language of § 11-47-190 provides that no recovery may be had against an employee of a municipality in excess of $100,000, regardless of whether the employee is sued in his individual or official capacity. No explanation or elaboration on this argument is found in the initial brief, and no authority is cited supporting their interpretation of the Code section. Therefore, we decline to address this issue."

      75 So.3d at 99 n. 5 (emphasis added). Additionally, when this Court overruled Suttles and Homewood's application for rehearing, Justice Shaw issued a special writing concurring specially and stating:
      "In the third issue in their brief on rehearing, Homewood and Suttles contend that, if Roy is able to assert individual-capacity claims against Suttles, then any damages award must be capped at $100,000 by Ala. Code 1975, § 11-47-190. As noted in the opinion on original submission, we have refused to address this issue based on the lack of argument regarding it in Homewood and Suttles’s initial brief. Because we do not address this issue, it must wait to be resolved on another day."

      75 So.3d at 104 (emphasis added).

      . A sentence or conjunctive adverb "is a word that modifies a whole previous statement.” Frederick Crews, The Random House Handbook 403 (6th ed. 1992).

      . Under § 1 l-47~24(a), the City would not be required to indemnify Morrow for any judgment against him that was based on damage resulting from his intentional, willful, or wanton conduct.

        . The main opinion aptly states that § 11-47-190 “recognizes” — not that it "creates” or "establishes” — the general rule of local governmental immunity. 153 So.3d at 773.

      . The original predecessors of § 11-47-190 and -191 were enacted by the legislature in 1907 as companion provisions. Ala.Code 1907, §§ 1273 and 1274. See also Ala.Code 1923, §§ 2029 and 2030.