author: MAIN, Justice. MURDOCK, Justice SHAW, Justice

text:
    PRECISION GEAR COMPANY, Precision Gear LLC, and General Metal Heat Treating, Inc. v. CONTINENTAL MOTORS, INC.
    1110786.
    Supreme Court of Alabama.
    July 12, 2013.

      Edward S. Sledge III and Brian P. McCarthy of McDowell Knight Roedder & Sledge LLC, Mobile, for appellants Precision Gear LLC and Precision Gear Company; and Steven' F. Casey and David A. Lester of Jones, Walker, Waechter, Poi-tevent, Carrére & Denegre LLP, Birmingham, for appellant General Metal Heat Treating, Inc.
    Edward A. Dean, Sherri Rich Ginger, Mark B. Roberts, and Timothy A. Heister-hagen of Armbrecht Jackson LLP, Mobile, for appellee.
   MAIN, Justice.

Precision Gear Company, Precision Gear LLC, and General Metal Heat Treating, Inc. (hereinafter collectively referred to as “the gear manufacturers”), third-party defendants in the underlying action, were granted permission to appeal from the trial court’s interlocutory order denying their motion to dismiss the third-party claims against them filed by Continental Motors, Inc. See Rule 5, Ala. R.App. P. The trial court certified the following controlling question of law:

“In an action for non-contractual indemnification arising from an accident and alleged damage[ ] in Oklahoma, does Alabama’s six year statute of limitation for implied contract actions control because Oklahoma law considers Oklahoma common law and Oklahoma statutory claims for indemnity as claims based upon contract implied in law or quasi-contract, or does Alabama’s two year statute of limitation for tort actions control?”

We conclude that Alabama’s two-year statute of limitations applies in this action and that Continental Motors’ claims against the gear manufacturers are therefore time-barred. We reverse and remand.

I. Factual Background and Procedural History

On July 24, 2005, an aircraft accident occurred in Ada, Oklahoma. The accident was caused by the failure of one of two engines on the aircraft. The accident resulted in the deaths of the three persons who had been aboard the aircraft (hereinafter referred to as “the decedents”). All the litigation concerning the 2005 aircraft accident has taken place in Alabama. The decedents’ personal representatives filed an action in the Mobile Circuit Court in 2007 alleging wrongful death and defective product (“the Womack litigation”) and naming as defendants Cessna Aircraft Company, Teledyne Continental Motors, Inc., Tulsair Beechcraft, Inc., Precision Gear Company, Precision Gear LLC (Precision Gear Company and Precision Gear LLC are hereinafter referred to as “Precision Gear”), and General Metal Heat Treating, Inc. The central allegation in the Womack litigation was that the crankshaft gear in the right engine was defective and that this defect caused the accident. Cessna manufactured the aircraft; Teledyne Continental manufactured the engine that failed; Tulsair Beechcraft installed the engine on the aircraft; Precision Gear manufactured the gear alleged to have been faulty; and General Metal heat-treated that gear. All the defendants settled the claims against them in the Womack litigation.

In June 2011, Tulsair Beechcraft sued Continental Motors in the Mobile Circuit Court, seeking statutory indemnity under Oklahoma law. Tulsair Beechcraft contended it was not negligent, in that it received the allegedly defective aircraft engine fully assembled and merely installed it on the aircraft. Tulsair Beechcraft further contended that disassembly of an engine in order to check each part for potential defects was neither required nor prudent and, therefore, that it was entitled to reimbursement for its litigation expenses and the $250,000 it paid to settle the claims asserted against it in the Wom-ack litigation. Continental Motors then filed what the trial court described in the controlling question of law in this case as “non-contractual indemnification” claims against the gear manufacturers seeking to recover the $4,974,036.25 Teledyne Continental had paid to defend and settle the Womack litigation. Continental Motors alleges that the defective crankshaft gear failed to meet the applicable specifications it provided to Precision Gear for the fabrication of the gear and to General Metal for the heat treatment of the gear.

Precision Gear and General Metal moved separately to dismiss Continental Motors’ indemnity claims. They argued, among other things, that Continental Motors’ indemnity claims are time-barred by Alabama’s two-year statute of limitations for indemnity actions arising from tort claims. Continental Motors opposed the motions, arguing that Oklahoma substantive law classifies indemnity claims as quasi-contractual and, therefore, that Alabama’s six-year statute of limitations for contract claims governs its indemnity claims.

The trial court determined that because an indemnity action is derived from the principal claim, an indemnity action should be governed by the law of the place where the principal claim arose. The principal claim in this case was the wrongful-death claim, and there is no dispute that the aircraft accident and the decedents’ deaths occurred in Oklahoma. Relying on cases from other jurisdictions because it found no Alabama law on point, the trial court concluded that a claim for indemnity is governed by the law of the state where the underlying tort occurred. The trial court further concluded that it must apply an Alabama statute of limitations. The trial court then concluded that because Oklahoma law considers an action for indemnity one based on quasi-contract, the applicable statute of limitations was Alabama’s six-year statute of limitations for contract actions. Based on those conclusions, the trial court held that Continental Motors’ indemnity claims were not time-barred and denied the gear manufacturers’ motions to dismiss.

The gear manufacturers then filed a joint motion asking the trial court to certify the statute-of-limitations issue for an interlocutory appeal to this Court pursuant to Rule 5, Ala. R.App. P. After a response from Continental Motors, the trial court granted the joint motion and certified the previously quoted controlling question of law for permissive appeal. This Court granted the gear manufacturers’ petition for permission to appeal.

II. Standard of Review

“Under Rule 5, Ala. R.App. P., a trial judge should certify for appeal an interlocutory order when that order ‘involves a controlling question of law as to which there is substantial ground for difference of opinion, [and when] an immediate appeal from the order would materially advance the ultimate termination of the litigation and ... would avoid protracted and expensive litigation.’ The trial court’s action in certifying an order pursuant to Rule 5 is discretionary. ...”

Ex parte Liberty Nat’l Life Ins. Co., 825 So.2d 758, 762 (Ala.2002). “In conducting our de novo review of the question presented on a permissive appeal, ‘this Court will not expand its review ... beyond the question of law stated by the trial court. Any such expansion would usurp the responsibility entrusted to the trial court by Rule 5(a)[, Ala. R.App. P.].’ BE&K, Inc. v. Baker, 875 So.2d 1185, 1189 (Ala.2003).” Regions Bank v. Kramer, 98 So.3d 510, 513 (Ala.2012). Therefore, the only issue before this Court is the issue framed in the previously quoted question of law.

III. Analysis

In a conflict-of-laws situation, the principles that govern which state’s substantive law applies to the case before us are well settled.

“Alabama law follows the traditional conflict-of-law principles of lex loci con-tractus and lex loci delicti. See Liberty Mut. Ins. Co. v. Wheelwright, 851 So.2d 466 (Ala.2002). Under the principles of lex loci contractus, a contract is governed by the law of the jurisdiction within which the contract is made. Cherry, Bekaert & Holland v. Brown, 582 So.2d 502 (Ala.1991). Under the principle of lex loci delicti, an Alabama court will determine the substantive rights of an injured party according to the law of the state where the injury occurred. Fitts v. Minnesota Mining & Mfg. Co., 581 So.2d 819 (Ala.1991).”

Lifestar Response of Alabama, Inc. v. Admiral Ins. Co., 17 So.3d 200, 213 (Ala.2009) (footnote omitted). The trial court so stated, and we agree. We also agree with the trial court’s conclusion that “a claim for contribution or indemnity is governed by the law of the state where the underlying tort occurred.”

As to matters of procedure, however, Alabama applies its own procedural law, i.e., the law of the forum. Middleton v. Caterpillar Indus., Inc., 979 So.2d 53, 57 (Ala.2007) (“Although lex loci delicti governs substantive law, lex fori — the law of the forum — governs procedural matters.”). This Court has also held that, in most instances, statutes of limitations are procedural matters.

“Thus, we will apply another state’s statute of limitations only when it is demonstrated that ‘the limitation is so inextricably bound up in the statute creating the right that it is deemed a portion of the substantive right itself.’ ”

Etheredge v. Genie Indus., Inc., 632 So.2d 1324, 1327 (Ala.1994) (quoting Cofer v. Ensor, 473 So.2d 984, 987 (Ala.1985)). In denying the gear manufacturers’ motions to dismiss, the trial court concluded:

“Continental [Motors] claims indemnity from Precision [Gear] and [General Metal] pursuant to both Oklahoma common law and Okla. Stat. tit. 12, § 832.1. Section 832.1(A) states that ‘[a] manufacturer shall indemnify and hold harmless a seller against loss arising out of a product liability action, except for any loss caused by the seller’s negligence, intentional misconduct, or other act or omission, such as negligently modifying or altering the product, for which the seller is independently liable.’ Oklahoma common law also ‘reeognize[s] a right of indemnity when one — who was only constructively liable to the injured party and was in no manner responsible for the harm — is compelled to pay damages because of the tortious act by another.’ Braden v. Hendricks, 695 P.2d 1343, 1349 (Okla.1985).
“Oklahoma’s common law indemnity is not a right created by statute, and thus the criterion for applying another state’s statute of limitations is not applicable to this cause of action. Okla. Stat. tit. 12, § 832.1 does not itself impose a limitations on claims made pursuant to it, and no other Oklahoma statute of limitations has been cited as being ‘inextricably bound up’ in it. Therefore, the Court will apply Alabama’s statutes of limitation to [Continental’s indemnity claims].”

We agree with the trial court’s conclusions to this point.

The gear manufacturers and Continental Motors agree that because the injury in this case occurred in Oklahoma, Oklahoma law governs the substantive rights of the parties. They also agree that because Alabama is the forum state, Alabama law governs the procedural matters in this litigation. The gear manufacturers and Continental Motors disagree, however, as to which statute of limitations applies— the statute applicable to torts or the statute applicable to contracts — because Alabama and Oklahoma characterize a claim for indemnity differently. Alabama law characterizes an action for noncontractual indemnity as a tort. “‘The basis for indemnity is restitution, and the concept that one person is unjustly enriched at the expense of another when the other discharges liability that it should be his responsibility to pay.’ ” Amerada Hess Corp. v. Owens-Coming Fiberglass Corp., 627 So.2d 367, 370 (Ala.1993) (quoting Restatement (Second) of Torts § 886B cmt. c (1977)). As the trial court correctly stated, Oklahoma law characterizes an indemnity claim not as a claim sounding in tort, but in contract:

“Unlike Alabama, Oklahoma considers an action for indemnity as one based on quasi-contract or a contract implied in law. See Porter v. Norton-Stuart Pontiac-Cadillac of Enid, 405 P.2d 109, 113 (Okla.1965) (characterizing Oklahoma’s common law cause of action for indemnity as being based on ‘an implied, as opposed to an express, contract of indemnity.’); Booker v. Sears Roebuck & Co., 785 P.2d 297, 800 (Okla.1989) (non-contractual or equitable ‘duty to indemnify is in the nature of a quasi-con-tractf.]’) (Summers, J., concurring).”

(Some citations omitted.) If an indemnity claim is characterized as contractual, then under Alabama procedural law a six-year statute of limitations would apply, and Continental Motors’ indemnity claims are timely. However, if such a claim is viewed as sounding in tort, then under Alabama procedural law a two-year statute of limitations would apply, and Continental Motors’ indemnity claims are time-barred. Ex parte Stonebrook Dev., L.L.C., 854 So.2d 584, 591 (Ala.2003) (stating that the two-year statute of limitations in § 6-2-38(0, Ala.Code 1975, applies to noncon-tractual indemnity claims). The disposi-tive issue before this Court, then, is which state’s law is to be applied in characterizing the claim.

The trial court applied Oklahoma substantive law and concluded that the applicable Alabama statute of limitations would be the six-year statute of limitations for contracts. It is here that we disagree with the trial court’s analysis.

The gear manufacturers argue that the law of the forum determines the characterization of the claim for statute-of-limitations purposes; They cite several federal cases in which the federal court, sitting in a diversity case, applied conflict-of-laws principles to decide which state’s statute of limitations applied to a particular claim. In all of these jurisdictions, the court applied the law of the forum to characterize the nature of the claim. In O’Neal v. Kennamer, 958 F.2d 1044, 1047 (11th Cir.1992), a case litigated in Alabama, the United States Court of Appeals for the Eleventh Circuit applied a conflict-of-laws analysis to determine whether a claim would be characterized as a contract or a tort claim, and concluded that “the decision of what kind of case is involved is governed by Alabama law, and Alabama characterizes this as a tort case.” Several state jurisdictions also follow the principle that the law of the forum state characterizes the claim.

The gear manufacturers also rely on § 124 of the Restatement (Second) of Conflict of Laws (1971) (“the Restatement of Conflict ”) to support their argument. Section 124 states: “The local law of the forum determines the form in which a proceeding may be instituted on a claim involving foreign elements.” Comment a. to § 124 further explains:

“The local law of the forum determines such questions as whether a proceeding on a foreign claim shall be brought at law or in equity, whether the action shall be in tort or contract and, if in contract, whether it shall be in assumpsit, covenant or debt....”

(Emphasis added.)

Continental Motors first argues that this Court should not consider the gear manufacturers’ argument that the Restatement of Conflict applies because, it states, the gear manufacturer's did not argue before the trial court that the Restatement of Conflict should apply when characterizing a claim for the purpose of determining the applicable statute of limitations. Although this Court has often stated that we will not reverse a judgment based on an argument made for the first time on appeal, we have never held that a party cannot cite in its appellate brief additional or different authorities in support of an argument initially made to the trial court. We have reviewed the motions and briefs filed in the trial court by the gear manufacturers; they clearly argued there that the law of the forum should control the characterization of a claim for conflict-of-laws purposes. Therefore, we see no impediment to our considering that argument and the supporting authorities in the gear manufacturers’ appellate briefs.

Continental Motors further argues that because Oklahoma substantive law governs its indemnity claims, the nature of its indemnity claims under Oklahoma law controls the determination of which Alabama statute of limitations applies. Therefore, Continental Motors argues, the trial court correctly applied Oklahoma law in deciding that Alabama’s six-year statute of limitations for contracts applies. In support of its argument, Continental Motors relies on Denton v. Sam Blount, Inc., 669 So.2d 951 (Ala.Civ.App.1995); Velde v. Swanson, 679 S.W.2d 627 (Tex.App.1984); Leek v. Wieand, 2 N.J.Super. 339, 63 A.2d 828 (1949); and German National Bank v. Zimmer, 141 Ky. 401, 132 S.W. 1023 (1911). After reviewing these cases, we conclude that they do not provide persuasive authority for the proposition that because Oklahoma law governs Continental Motors’ indemnity claims, the trial court correctly used Oklahoma substantive law to characterize those claims for statute-of-limitations purposes. This Court has not found any caselaw holding that when a foreign state’s, substantive law applies to a claim in a confliet-of-laws situation, that state’s substantive law must also be used to characterize the claim for statute-of-limitations purposes.

Finally, Continental Motors argues that the gear manufacturers’ argument that the Restatement of Conflict should apply is contrary to well established Alabama law. Continental Motors construes the gear manufacturers’ argument as asking this Court to “abandon the common law rule of lex loci delicti.” Continental Motors’ brief, at 34. We do not so interpret the gear manufacturers’ argument. The gear manufacturers have cited § 124 of the Restatement of Conflict as one authority of many cited in support of their contention that the law of the forum state is applied to characterize a claim for statute-of-limitations purposes; it is not necessary for this Court to adopt or reject the Restatement of Conflict in deciding this case. Whatever our decision, as stated previously, Alabama law applies the rule of lex loci delicti to determine the substantive law applicable to tort claims brought in an Alabama court when the underlying injury occurred in another state. That rule is applicable in this case. Oklahoma substantive law clearly applies to Continental Motors’ claims, but Alabama law applies to any procedural matters before the trial court.

After reviewing the trial court’s order, the parties’ arguments, and the authorities provided to this Court, we conclude that the great weight of authorities from the federal courts and from other states that have considered the question before us have concluded that the law of the forum state should be used to characterize a claim before it for statute-of-limitations purposes. We find those authorities persuasive, and we conclude that in this case Alabama law should be used to characterize Continental Motors’ indemnity claims. Under Alabama law, an indemnity claim is a tort claim; therefore, Alabama’s two-year statute of limitations in tort actions applies. Because Continental Motors brought its indemnity claims more than two years after the date on which they accrued, those claims are barred by Alabama’s two-year statute of limitations, and the trial court erred when it denied the gear manufacturers’ motions to dismiss.

One final matter remains for our consideration. After this Court granted the gear manufacturers permission to appeal and the parties had briefed the controlling question of law presented, Continental Motors filed a motion it entitled a “motion to affirm based on [the gear manufacturers’] subsequent actions.” We treat that motion as a motion to dismiss the gear manufacturers’ appeal. As the basis for its motion, Continental Motors states that the gear manufacturers had filed a motion for leave to file a counterclaim against it, which the trial court had granted. Continental Motors then argued that by filing a counterclaim against it, the gear manufacturers “negated any argument that this appeal would advance the termination of this lawsuit or reduce expense” and gained an “advantage based on its failure to timely assert its [counterclaim.” Motion to dismiss, at 5-6. Continental Motors further argues that because the gear manufacturers filed a counterclaim, their “assertions that this appeal will materially advance the ultimate termination of the litigation and would avoid protracted and expensive litigation are no longer true....” Therefore, Continental Motors concludes, a permissive appeal is no longer proper in this case and this Court should affirm the trial court’s order denying the gear manufacturers’ motion to dismiss.

The gear manufacturers filed a response in which they asked this Court either to strike Continental Motors’ motion or to deny it, arguing that the motion is procedurally improper and that the arguments in the motion do not provide this Court with any basis on which to affirm the trial court’s order. This Court’s research has not found any precedent or rule of appellate procedure that would allow us to affirm a trial court’s order based on events that happened after an order has been appealed. Nothing contained in Continental Motors’ motion is a matter of record with this Court, and our review of matters on appeal is limited to the record before us. Marks v. Tenbrunsel 910 So.2d 1255 (Ala.2005). Based on the matters before it at the time, the trial court certified the controlling question of law for a permissive appeal. Whether to so certify a question is discretionary with the trial court, and the trial court did not exceed its discretion in doing so. See Scrushy v. Tucker, 955 So.2d 988, 999 (Ala.2006) (“Such a discretionary standard of review requires a presumption in favor of the ruling of the trial court, and this Court will not set aside that ruling unless we are convinced that the trial court exceeded the discretion vested in it.”). Continental Motors’ motion to dismiss the appeal is due to be denied.

IV. Conclusion

We deny Continental Motors’ motion to dismiss the appeal. We answer the question posed on interlocutory appeal by holding that Alabama’s two-year statute of limitations for tort actions controls in this ease. Therefore, we reverse the judgment of the trial court denying the gear manufacturers’ motion to dismiss and remand the cause for the trial court to dismiss Continental Motors’ indemnity claims against the gear manufacturers on the basis that they are time-barred.

MOTION TO DISMISS APPEAL DENIED; REVERSED AND REMANDED.

MOORE, C.J., and STUART, BOLIN, PARKER, WISE, and BRYAN, JJ., concur.

MURDOCK and SHAW, JJ., dissent.

MURDOCK, Justice

(dissenting).

“This appeal presents a classic example of the wilderness in which courts sometimes find themselves when searching for solutions to problems arising under the judicial nightmare known as Conflict of Laws.”

Forsyth v. Cessna Aircraft Co., 520 F.2d 608, 609 (9th Cir.1975).

I agree that we must apply the choice-of-law principles of the forum state, in this case Aabama, in order to decide which state’s substantive law will be applied to the claims at issue. Aabama follows the traditional principles of lex loci contractus and lex loci delicti that may direct us to the law of different states depending, at least as a general rule, upon whether the claim at issue is one sounding in contract or tort:

“Aabama law follows the traditional conflict-of-law principles of lex loci con-tractus and lex loci delicti. See Liberty Mut. Ins. Co. v. Wheelwright, 851 So.2d 466 (Ala.2002). Under the principles of lex loci contractus, a contract is governed by the law of the jurisdiction within which the contract is made. Cherry, Bekaert & Holland v. Brown, 582 So.2d 502 (Ala.1991). Under the principle of lex loci delicti, an Aabama court will determine the substantive rights of an injured party according to the law of the state where the injury occurred. Fitts v. Minnesota Mining & Mfg. Co., 581 So.2d 819 (Ala.1991).”

Lifestar Response of Alabama, Inc. v. Admiral Ins. Co., 17 So.3d 200, 213 (Ala.2009) (footnote omitted).

The claims in the present case are for indemnity. Application of the conflict-of-law principles as stated above, without more, would require a determination as to whether these indemnity claims arise in contract or in tort and a further determination, if the indemnity claims are deemed to lie in contract, of where that contract was “made” or, if the indemnity claims are deemed to be in tort, of “where the injury occurred.” For choice-of-law purposes, Alabama law characterizes the indemnity claims at issue in this case as arising in tort. Accordingly, were we limited to the articulation of lex loci contractus and lex loci delicti principles as set out in the above-quoted passage from Lifestar, we would be called upon to determine where the injury suffered by the defendants’ failure to indemnify the plaintiff occurred. This is not readily apparent.

Our task in the present case, however, is aided by an additional principle peculiar to claims for contribution and indemnity that either derives from the above-stated choice-of-law rules or, at the least, is not foreclosed by those choice-of-law rules. The main opinion states this additional principle as follows:

“We also agree with the trial court’s conclusion that ‘a claim for contribution or indemnity is governed by the law of the state where the underlying tort occurred.’

135 So.3d at 956-57 (emphasis added). In like manner, the brief of Continental Motors, Inc. (“CMI”), argues that the traditional rule of lex loci delicti that applies the law of the place of injury to an underlying tort claim extends that same law to a related claim for indemnity or contribution:

“Pursuant to lex loci delicti, the applicable substantive law for an indemnity claim is determined by looking to the law of the underlying case — i.e., the law of the state where the underlying tort occurred. See 95 A.L.R.2d 1096, § 5 (‘It is the general rule that a tortfeasor’s right to indemnity from other tortfea-sors is determined by the law of the place of the tort.’) (citing cases applying lex loci delicti); Am. L. Prod. Liab. 3d § 46:47 (‘[Sjtates that adhere to the traditional rule of lex loci delicti apply the law of the place of injury.... ’); see also Gen. Motors Corp. v. Nat’l Auto Radiator Mfg. Co., Ltd., 694 F.2d 1050, 1052-53 (6th. Cir.1982) (‘Despite the contention by GM that the place of the wrong for its contribution or indemnity claims is Michigan, it is clear that the place where the underlying personal injury occurred, which is Ontario in the present case, has been deemed the place of the wrong for the choice-of-law purposes.’); Fla. Farm Bureau Mut. Ins. Co. v. B & B Miller Farms, Inc., No. 87-1021-C (D.Kan. Sept. 17, 1991) [not reported in F.Supp.] (‘Since the site of the injury was in Florida, the substantive rights of the parties will be determined under Florida law.’); Youell v. Maddox, 692 F.Supp. 343, 348 (D.Del.1988) (‘[T]he right to indemnity would be governed by the law of the place of the underlying tort.’) (applying Delaware law, which utilized lex loci delicti at the time of this decision); Wiener v. United Air Lines, 216 F.Supp. 701, 705 (S.D.Cal.1962) (applying lex loci delicti to determine that the law of the place of the underlying injury applies to an indemnity action); First Mount Vernon Indus. Loan Ass’n v. Smith, No. 8-08-cv-02085-AW (D.Md. July 31, 2009) [not reported in F.Supp.2d].”

Brief of CMI, at 25-26.

We are presented in this case with no argument to the contrary of this supplemental principle peculiar to claims for indemnity and contribution. At least insofar as the present case is concerned, therefore, I accept this supplemental principle and look to the substantive law of the state in which occurred the injury giving rise to the underlying tort action. That state in this case is Oklahoma.

The opinion of the Court of Civil Appeals in Denton v. Sam Blount, Inc., 669 So.2d 951 (Ala.Civ.App.1995), indicates that, once it is determined which state’s substantive law is applicable to a claim brought in an Alabama forum, one looks to that state’s substantive law regarding whether the claim is one in contract or in tort for purposes of selecting from among the various limitations periods offered by Alabama law. See also Velde v. Swanson, 679 S.W.2d 627, 629-30 (Tex.Ct.App.1984); Leek v. Wieand, 2 N.J.Super. 339, 349, 63 A.2d 828, 834 (1949); and German Nat’l Bank v. Zimmer, 141 Ky. 401, 132 S.W. 1023 (1911).

How can we not adhere to such a rule? Specifically, if we are to rely on the law of another state for the very existence of a cause of action and for the very substance of that cause of action, how can we reject what that law says as to what that substance is — contract or tort?

Thus, once it is determined that the substantive law of the State of Oklahoma is to be applied in this case, I do not see how at any subsequent juncture in the analysis we can ignore what that law has to say as to whether the cause of action created by that law lies in contract or in tort. Statutes of limitations themselves may be procedural rules, see generally Etheredge v. Genie Indus., Inc., 632 So.2d 1324 (Ala.1994) (holding that, under Alabama law, the law of the forum applies to procedural matters and that, in most instances, the statute of limitations is considered to be a procedural rule), but the question of the nature of the claim to which those statutes must be applied is quintessentially substantive. Because I read the law of Oklahoma as creating the claims for indemnity in the present case as contract claims (specifically under the doctrine of quasi-contract), I must conclude that Alabama’s six-year statute of limitations under Ala.Code 1975, § 6-2-34(9), applies. Accordingly, I respectfully dissent.

SHAW, Justice

(dissenting).

When presented with a conflict-of-laws issue, Alabama courts apply the principles of lex loci delicti and lex loci contractus.

“Alabama law follows the traditional conflict-of-law principles of lex loci con-tractus and lex loci delicti. Under the principles of lex loci contractus, a contract is governed by the law of the jurisdiction within which the contract is made. Under the principle of lex loci delicti, an Alabama court will determine the substantive rights of an injured party according to the law of the state where the injury occurred.”

Lifestar Response of Alabama, Inc. v. Admiral Ins. Co., 17 So.3d 200, 213 (Ala.2009) (citations and footnote omitted). If the principles of lex loci contractus or lex loci delicti dictate that the law of another jurisdiction is to be applied, then Alabama courts look to the “character” of the law, i.e., whether it is “substantive” or “procedural,” because “we will enforce only those laws of the other state that are substantive in nature.” Etheredge v. Genie Indus., Inc., 632 So.2d 1324, 1326 (Ala.1994) (“ ‘The court before which the question arises is the one that has to decide whether any rule of law, domestic or foreign, will be characterized as substantive or as procedural for choice-of-law purposes.’ ” (quoting Robert A. Leflar et al., American Conflicts Law 333 (1986))). See also Middleton v. Caterpillar Indus., Inc., 979 So.2d 53, 58 (Ala.2007).

In this case, Continental Motors, Inc., has filed an action against various defendants seeking indemnity or contribution relating to a judgment against it in a wrongful-death action resulting from an airplane crash that occurred in Oklahoma. In determining the substantive law that applies to these claims, the main opinion accepts the rule of other jurisdictions that, when confronted with this conflict-of-laws issue, a court determines the character of such indemnity or contribution claims by where the underlying claim arose:

“It is clear that the place where the underlying personal injury occurred ... has been deemed the place of the wrong for choice-of-law purposes. The rationale offered by the courts for this conclusion is that since an action for indemnity or contribution is entirely derivative from the principal claim, it also should be governed by the law of the place where the principal claim arose.”

General Motors Corp. v. National Auto Radiator Mfg. Co., Ltd., 694 F.2d 1050, 1053 (6th Cir.1982) (citations omitted). Thus, the indemnity/contribution law of Oklahoma — the place where the principal claim, the wrongful-death action, arose— controls in this action. Under Oklahoma substantive law, Continental’s claims are in the nature of contract claims.

Although the rule of General Motors would seem to indicate that Oklahoma’s statute of limitations would apply, statutes of limitations are generally considered to be procedural in nature; thus, under the “characterization” analysis of Etheredge, another state’s statute of limitations would not be “enforced,” and Alabama’s statute of limitations would instead apply. The controlling question of law in this permissive appeal under Rule 5, Ala. R.App. P., asks which statute of limitations under Alabama law is applicable to Continental’s indemnity/contribution claims — the two-year limitations period applicable to tort claims or the six-year period applicable to contract claims.

The main opinion undertakes a second conflict-of-laws analysis to determine which Alabama procedural law applies, i.e., which statute of limitations applies. It couches this analysis in terms of “characterizing” the claim to determine whether it is in the nature of a contract claim or a tort claim under Alabama law. While examining the nature of the claim is appropriate to choose between the lex loci de-licti principle and the lex loci contractus principle, those principles tell us the applicable substantive law to select between competing jurisdictions, not the applicable procedural law. See Lifestar Response of Alabama, 17 So.3d at 213 (“Under the principle of lex loci delicti, an Alabama court will determine the substantive rights of an injured party according to the law of the state where the injury occurred.”). The determination whether a claim is in the nature of a contract claim or a tort claim is an issue of substantive law, and because Oklahoma substantive law applies in this case, that substantive law should explain the nature of Continental’s claims. I see no authority indicating that, once the applicable substantive law and procedural law have been determined, the substantive law dictated is again subjected to a conflict-of-laws analysis to select the applicable Alabama procedural law. The Alabama procedural law I would apply would be the procedural law applicable to the substantive claims: the statute of limitations applicable to contract actions. I would not undertake another conflict-of-laws analysis.

      . Tulsair Beechcraft’s complaint asserts that Continental Motors, Inc., and Teledyne Continental Motors, Inc., the named defendant in the Womack litigation, are the same entity. The gear manufacturers state in their initial brief that they do not concede that the two companies are the same entity but that they have referred to the companies interchangeably in their briefs to this Court.

      . The amount sought by Continental Motors in its third-party complaint consists of $4,500,000 paid to settle the Womack litigation and $474,036.25 paid in litigation costs.

      . The trial court relied on General Motors Corp. v. National Auto Radiator Manufacturing Co., 694 F.2d 1050, 1052-53 (6th Cir.1982) (“Despite contention by GM that the place of the wrong for its contribution or indemnity claims is Michigan, it is clear that the place where the underlying personal injury occurred, which is Ontario in the present case, has been deemed the place of the wrong for choice-of-law purposes.”); Seitter v. Schoenfeld, 678 F.Supp. 831, 837-38, republished at 88 B.R. 343, 349-50 (D.Kan.1988) ("[I]n a claim for contribution, which 'wrong' should the court look to in order to determine the choice of law? ... [S]everal authorities soundly reason that the court should look to the location of the original wrong for the applicable law.... The court will follow this rule, and look to the place of the original injury for its choice of law.”).

      . See, e.g., Drinkall v. Used Car Rentals, Inc., 32 F.3d 329, 331 (8th Cir.1994) (noting that " '[t]he first step in determining whose law is to govern in a conflict situation is the characterization of what kind of case is involved’ ” and that " '[t]he law of the forum controls this’ ”); Forsyth v. Cessna Aircraft Co., 520 F.2d 608, 611 (9th Cir.1975) ("[T]he characterization of an action must be made in accordance with the law of the forum.”); American Heritage Life Ins. Co. v. Heritage Life Ins. Co., 494 F.2d 3, 15 n. 13 (5th Cir.1974) ("Assuming that state law would apply, deciding which state’s law to apply is not an easy task. First, we must characterize the claim. In deciding how the matter should be characterized for conflict of laws purposes, it is clear that the law of the forum should control.”); Fahs v. Martin, 224 F.2d 387, 396 n. 6 (5th Cir.1955) (" ‘The practical solution would appear to resort, as a general rule, to the law of the forum in resolving questions of characterization....’” (quoting Goodrich on Conflict of Laws § 9 (3d ed.))); Berry v. Indianapolis Life Ins. Co., 600 F.Supp.2d 805, 812 (N.D.Tex.2009) ("The characterization of a claim is controlled by the law of the forum state....”); Interbake Foods, L.L.C. v. Tomasiello, 461 F.Supp.2d 943, 957 (N.D.Iowa 2006) ("The first step in determining the actual choice-of-law is to determine the proper characterization of what kind of claim is involved, and the law of the forum controls this question as well.”); Insteel Indus., Inc. v. Costanza Contracting Co., 276 F.Supp.2d 479, 484 (E.D.Va.2003) (noting that " ‘the characterization of an action must be made in accordance with the law of the forum’ ” (quoting Forsyth, 520 F.2d at 611) and further noting that “ 'in deciding how [a] matter should be characterized for conflict of laws purposes, it is clear that the law of the forum should control’ ” (quoting Fahs, 224 F.2d at 396-97)).

      . See, e.g., Melia v. Zenhire, Inc., 462 Mass. 164, 175, 967 N.E.2d 580, 591 (2012) ("The characterization of a cause of action as contract or tort is itself determined by the forum's, in this case New York’s, conflict of laws precedents.” (citing Arakelian v. Omnicare, Inc., 735 F.Supp.2d 22, 37-38 (S.D.N.Y.2010))); Terrazas v. Garland & Loman, Inc., 140 N.M. 293, 296, 142 P.3d 374, 377 (2006) ("The forum applies its own rules in characterizing an issue for conflicts analysis” (citing Restatement of the Law of Conflict of Laws § 7(a) (1934))); Records v. Briggs, 887 P.2d 864, 868 (Utah Ct.App.1994) (" ‘[T]he characterization of an action must be made in accordance with the law of the forum.’ ” (quoting Forsyth, 520 F.2d at 611)); Gordon v. Clifford Metal Sales Co., 602 A.2d 535, 537 (R.I.1992) ("The forum state is also free to characterize the nature of the dispute.” (citing Restatement (Second) of Conflict of Laws § 124 (1971))); McCarthy v. Bristol Labs., 86 A.D.2d 279, 283, 449 N.Y.S.2d 280, 283 (1982) (noting that "the question of how an action is to be characterized must be made in accordance with the laws of the forum State” (citing Restatement (Second) of Conflict of Laws § 124 (1971))).

      . Alabama Dep’t of. Transportation v. Williams, 984 So.2d 1092 (Ala.2007); Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992).

      "3The trial court relied on General Motors Corp. v. National Auto Radiator Manufacturing Co., 694 F.2d 1050, 1052-53 (6th Cir.1982) (‘Despite contention by GM that the place of the wrong for its contribution or indemnity claims is Michigan, it is clear that the place where the underlying personal injury occurred, which is Ontario in the present case, has been deemed the place of the wrong for choice-of-law purposes.’); Seitter v. Schoenfeld, 678 F.Supp. 831, 837-38, republished at 88 B.R. 343, 349-50 (D.Kan.1988) ('[I]n a claim for contribution, which "wrong” should the court look to in order to determine the choice of law? ... [Sjeveral authorities soundly reason that the court should look to the location of the original wrong for the applicable law.... The court will follow this rule, and look to the place of the original injury for its choice of law.’).”

      . Even without the application of the above-discussed principles, we arguably would be bound to adhere to Oklahoma’s substantive law in evaluating the particular claim for indemnity made in the present case. CMI, the party that makes that claim, takes the position that it is making a claim under Oklahoma law and further appears to be correct in its position that Oklahoma law does provide to a party that stands in CMI’s position in relation to an event of the nature at issue occurring in Oklahoma a quasi-contract cause of action for indemnification.

      . As I read them, most of, if not all, the cases cited in the main opinion beginning with the opinion’s citation of O’Neal v. Kennamer, 958 F.2d 1044, 1047 (11th Cir.1992), and ending with Melia v. Zenhire, Inc., 462 Mass. 164, 175, 967 N.E.2d 580, 591 (2012), address only the initial characterization of the claim for purposes of applying the forum state's choice-of-law rules. Thus, for example, in a state such as Alabama that applies traditional lex loci contractus and lex loci delicti principles, these cases stand for the understandable proposition that one must employ the law of the forum in order to make an initial characterization of the claim as contract or tort in order to know whether to apply the principle of lex loci contractus or the principle of lex loci delicti. They do not specifically address the circumstance where the substantive law chosen under these choice-of-law rules differs from the law of the forum in regard to whether the cause of action is properly deemed one in contract or in tort for purposes of deciding which of the forum jurisdiction’s statutes of limitations should be applied. Indeed, my research has revealed that there are precious few such cases within the jurisprudence of any state in this country supporting either the position I take or that is taken in the main opinion. This, no doubt, is due to the fact that most causes of action will be viewed the same (either as an action in contract or as one in tort) in all states.

      .Taking matters a step further, what if a cause of action created by the law of another state does not even exist under Alabama law (which in fact is true of some forms of indemnity and contribution)? How could we use Alabama law to override what the law of the state of origination of the cause has to say regarding its substantive nature as a cause lying in contract or in tort?

      . By necessity, in determining whether either the lex loci contractus principle or the lex loci delicti principle applies, a court looks at the nature of the claim to see if it sounds in tort or in contract.

      . Federal courts sitting in their diversity jurisdiction similarly “characterize” the claims before them: "A federal court in a diversity case is required to apply the laws, including principles of conflict of laws, of the state in which the federal court sits.... The first step in determining whose law is to govern in a conflict situation is the characterization of what kind of case is involved.” O’Neal v. Kennamer, 958 F.2d 1044, 1046 (11th Cir.1992).

      . It is not clear that this principle has been accepted in Alabama; however, there is no objection to the trial court’s use of that principle.

      . Under Etheredge and Middleton, "characterizing” the claim is done to determine whether an issue is procedural or substantive.

      . The main opinion, in footnotes 4 and 5, cites various authorities for the proposition that the characterization of the claim under the law of the forum is necessary in order to determine the proper law to be applied in a conflict-of-laws scenario. How these courts use this “characterization” is admittedly unclear and differing: some decisions characterize the claims to determine whether they are substantive or procedural in nature, and others characterize the claims to assist in exercising the forum state's conflict-of-laws analysis to chose the proper substantive law to apply. Only one, McCarthy v. Bristol Labs., 86 A.D.2d 279, 449 N.Y.S.2d 280 (1982), appears to characterize the claim for purposes of determining the proper statute of limitations in the forum state, but there is no meaningful analysis in that case as to why such a characterization was undertaken.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    CHANTILLY PROPERTIES I, LLC v. David P. JUSTICE d/b/a Mattress Fair.
    2110742.
    Court of Civil Appeals of Alabama.
    April 12, 2013.
    Rehearing Denied July 12, 2013.
    R. Bruce Hall of Hall, Derrick & Associates, P.A., Dothan, for appellant.
    R. Mac Freeman, Jr., and J. Evans Bailey of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellee.
   PER CURIAM.

This appeal stems from an action filed in the Montgomery Circuit Court by Chantilly Properties I, LLC (“the landlord”), against David P. Justice (“the tenant”), an individual who had done business under the trade name “Mattress Fair” and who had leased a retail space in a Montgomery shopping center from the landlord in 2007; the landlord alleged in its complaint that the tenant had breached the lease and owed the landlord $17,259.97 plus attorney fees and expenses. The tenant, appearing pro se, directed a letter to the trial court that he intended as an answer to the complaint; in pertinent part, he admitted that he owed two months’ worth of rental fees minus his security deposit but that he owed nothing else because he had validly invoked an “escape clause” in the lease. After a brief ore tenus proceeding, the trial court entered a judgment in favor of the landlord but assessed damages at $10,000. Following the denial of the landlord’s postjudgment motion to alter, amend, or vacate the judgment, the landlord appealed from the trial court’s judgment to this court, which has jurisdiction based upon the amount in controversy (see Ala.Code 1975, § 12-3-10).

At trial, the landlord’s property manager testified that the tenant and the landlord had entered into a lease agreement. The original lease agreement introduced into evidence by the landlord, which dates from January 2007, consisted of a series of numbered paragraphs. Although the landlord’s copy of the lease agreement ends at Paragraph 28.2, Paragraph 1.1 (u) expressly states that “[ajdditional provisions numbered 29, 30, 31 and 32 are included on Addendum to Lease attached hereto.”

During the manager’s testimony on direct examination, he stated that the tenant’s monthly rental had been changed to $5,124.66 pursuant to a February 2010 amendment to the lease agreement, and the manager further testified that, based upon his calculations, the tenant owed the landlord a total of $50,049.28. However, the amendment to the lease agreement, in addition to containing four additional paragraphs pertaining to the lease term and payment of agreed charges, also stated that, “[ejxcept as otherwise amended above, the Lease and Guaranty is in full force and effect and all terms and conditions remain the same.”

During cross-examination, the tenant asked whether the landlord’s manager was familiar with a term that had apparently been contained in the original lease agreement (and appeared in the tenant’s copy thereof) but that did not appear in the copy of the agreement offered into evidence by the landlord, at which time the manager admitted that the following provision had indeed appeared in the original lease agreement:

“In the event Bruno’s [ie., a grocery that was another former tenant of the landlord’s] ceases to operate in the Shopping Center for more than one hundred eighty (180) consecutive days, and Tenant’s sales decrease more than thirty percent (30%) or more for the one hundred eighty (180) days after store closes, Tenant shall have the right to terminate this Lease with a sixty (60) day written notice to Landlord, unless Landlord or Landlord’s assigns replaces Bruno’s with a comparable major tenant within the Shopping Center.”

That language appears as “Article 32” in a document entitled “Addendum to Lease” that was introduced into evidence by the tenant, and its numbering matches one of the numbered paragraphs of the addendum to the lease agreement identified in paragraph l.l(u). The tenant, during his testimony, stated that Bruno’s had moved out of its leased space in 2009, that he had moved out of his leased store but had returned in January 2010, that he had tried and failed to make his business work without the Bruno’s store being a going concern, and that he had then given notice that he would be exercising his rights under the clause identified as “Article 32.” In the tenant’s words: “With no anchor tenant in the shopping center, there was no traffic in the shopping center. And I could not — the total sales were less than electricity and salary I was paying my employee, so I had to give it up.”

In this case, the trial court, in “find[ing] the issues in favor of’ the landlord but simultaneously determining that the tenant should pay only $10,000 instead of over $50,000 to the landlord, appears to have implicitly accepted the proposition, advanced by the tenant, that the language included in Article 32 — which the tenant’s appellate counsel have termed an “escape clause” — was indeed a part of the parties’ original lease agreement and that the tenant, based upon his own trial testimony, had properly invoked that “escape clause” by providing two months’ notice of his intent to terminate the lease agreement as amended. There is evidence to support that implicit determination, and we, as an appellate court, are not at liberty to disturb it. See Transamerica Commercial Fin. Corp. v. AmSouth Bank, N.A, 608 So.2d 375, 378 (Ala.1992) (when trial judge makes no specific findings of fact, appellate court will assume that the trial judge made those findings necessary to support the judgment; trial court’s judgment and all implicit findings necessary to support it carry a presumption of correctness and will not be reversed unless found to be plainly and palpably wrong).

Although there is evidence to support the trial court’s implicit determination regarding the tenant’s timely and proper invocation of the escape clause, the tenant’s appellate counsel have conceded, and we agree, that there is no evidentiary basis upon which the $10,000 damages award can be said properly to stand. The tenant admitted at trial that he owed two months of rental charges to the landlord pursuant to the escape clause because he had not paid rent for that period, and neither party disputes that the prevailing monthly rental charge as stated in the amended lease agreement was $5,124.66. Thus, although we affirm the trial court’s implicit determination that the tenant properly invoked the escape clause, we reverse the trial court’s damages award, and we remand the cause for that court to correctly determine, from the existing record, the appropriate amount of damages to award to the landlord with respect to the two-month period after the tenant’s triggering of the escape clause and to enter a judgment in conformance with that determination.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

All the judges concur.

      . Although none of the original evidentiary exhibits from the trial were initially sent to this court by the trial-court clerk, those exhibits were transmitted to this court after submission of the appeal. Cf. Rule 13, Ala. R.App. P.


author: PITTMAN, Judge.

text:
    MCABEE CONSTRUCTION, INC. v. Elvin L. ALLDAY, Jr.
    2110461.
    Court of Civil Appeals of Alabama.
    April 19, 2013.
    Rehearing Denied July 12, 2013.

      Clark Summerford and Beverly Smith Williamson of Zeanah, Hust, Summerford & Williamson, Tuscaloosa, for appellant.
    Eaton G. Barnard of Eaton G. Barnard & Associates, P.C., Mobile, for appellee.
   PITTMAN, Judge.

McAbee Construction, Inc. (“McAbee”), appeals from a judgment awarding Elvin L. Allday, Jr., permanent-total-disability benefits pursuant to the Alabama Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975 (“the Act”). We affirm in part, reverse in part, and remand.

Facts and Procedural History

Allday had been employed as a boilermaker since 1986, working at union pay scale for different employers on various job sites. Allday explained that a boilermaker’s job requires heavy lifting and hard labor and encompasses the skills of a pipefitter, a millwright, and a welder in repairing and installing equipment used on industrial heating systems. Allday had routinely chosen to work only 40 weeks per year, electing to spend time with his family and pursue his hobbies of hunting, fishing, and working on automobiles during the other 12 weeks of the year. During his career as a boilermaker, Allday had sustained several work-related injuries, including a low-back injury in 1999 and injuries to his shoulders in 1992 and 1998 that had necessitated four surgical procedures.

Allday worked for McAbee for five days — Monday, June 5 through Friday, June 9, 2006 — during a temporary shutdown of the Georgia-Pacific pulp and paper mill in Pennington. On the afternoon of Wednesday, June 7, 2006, he was injured during the installation of an expansion joint in the ductwork to a boiler in the plant. According to Allday, the expansion joint weighed between 800 and 1,000 pounds. Allday was on top of the duct-work, approximately 15 feet off the ground, trying to maneuver the expansion joint into place as workers below him were using two-by-fours to push the expansion joint upward. Suddenly, the joint began to slip down toward the workers on the ground. As Allday was attempting to hold the joint and pull it toward him, he felt a jolt and experienced pain in his neck, shoulders, and back. Allday finished his shift on Wednesday, June 7, and reported the accident to safety coordinator Joel Kelly the following morning, Thursday, June 8. The employer’s first report of injury reflects that Allday had reported only arm and shoulder injuries and not a back injury. Allday declined medical treatment and continued to work on Thursday and Friday. On Monday, June 12, Allday telephoned McAbee site superintendent Mickey Jones and reported that, while he had been driving home to Citronelle after the job had ended on Friday, the pain in his back had increased and had become even more severe over the weekend. Allday asked Jones to schedule an appointment for him with a physician.

On June 20, 2006, Allday consulted Dr. André J. Fontana, a Mobile orthopedic surgeon who had treated Allday for other on-the-job injuries and had performed all four of Allday’s previous shoulder surgeries. Dr. Fontana’s office notes for that day indicate that Allday had complained of neck pain, bilateral shoulder pain, and low-back pain as a consequence of a work-related accident on June 7. Dr. Fontana ordered a magnetic resonance image (“MRI”) of Allday’s lumbar spine and nerve-conduction studies. The MRI revealed no acute injury and no change from a previous MRI that had been performed in December 1999. Like the 1999 MRI, the 2006 MRI indicated degenerative changes in Allday’s lumbar spine, including bulging disks at L4-5 and L5-S1 and bilateral stenosis at L5-S1, with possible narrowing of the nerve-root space. The nerve-conduction studies revealed that All-day was suffering from previously undiagnosed carpal-tunnel syndrome.

Dr. Fontana treated Allday for a year. He administered epidural blocks and cortisone shots in Allday’s lumbar spine, prescribed narcotic pain relievers, sent Allday to physical therapy, and referred him to a psychiatrist for treatment of depression. Nothing, however, provided Allday with any lasting relief from debilitating pain that, Allday said, was preventing him from working and carrying on his normal daily activities.

Dr. Fontana referred Allday to Dr. Tim Revels for a discussion of surgical options. After consulting with Dr. Revels, Allday was unsure as to whether he should undergo lumbar surgery, and he returned to Dr. Fontana, requesting to be referred to Dr. James L. West III, an orthopedic surgeon who specializes in spinal surgery, for a second opinion.

When Dr. West first saw Allday in June 2007, Allday complained of severe low-back pain radiating into his buttocks and both legs. Dr. West stated that, after he had outlined the risks of lumbar-fusion surgery, Allday had decided to consider the matter further and Dr. West had referred Allday to Dr. Chris Nicols, a pain-management specialist. The pain-management protocol proved to be unsuccessful, and Allday returned to Dr. West on August 14, 2007, stating that he had decided to have the surgery. On August 27, 2007, Dr. West performed a two-level lumbar fusion at L4-5 and L5-S1 and a decompressive laminectomy at L4-5 and L5-S1, with for-aminotomies of the L4, L5, and SI nerve roots. Dr. West determined that Allday had reached maximum medical improvement (“MMI”) on March 14, 2008, and that he could return to work within the guidelines of a functional-capacity evaluation (“FCE”) that had been conducted on February 18, 2008.

Following the accident, McAbee paid Allday’s medical expenses and temporary-total-disability benefits from June 20, 2006, until March 31, 2008. On February 13, 2008, Alday filed a complaint seeking permanent-total-disability benefits for the June 7, 2006, injury to his lower back. McAbee answered the complaint, asserting, among other things, that Alday had failed to notify it of a back injury and denying that Alday was permanently and totally disabled. The case was tried on October 1, 2010.

The trial court admitted documentary-evidence, including the deposition testimony and medical records of Dr. Fontana and Dr. West, the medical records of IWR Therapy Systems pertaining to Allday’s FCE, and the medical records pertaining to Allday’s treatment by psychologist Michael Rosenbaum, Ph.D.

Allday testified that his pain was worse after the lumbar surgery than it had been before the surgery; he suffers from pain that averages an intensity of 7 on a 10-point scale. He also testified that his cognitive abilities are impaired by the medications he takes on a daily basis: acetaminophen/hydrocodone (a narcotic pain reliever); carisoprodol (a muscle relaxer); pregabalin (a neuropathic pain reliever for damaged nerves); escitalopram oxalate (an antidepressant); and zolpidem (a sedative/sleep aid).

Allday stated that, because his wife is a nurse who works the night shift, he is responsible for getting his six-year-old son to school in the morning. After shouldering that responsibility, Allday said, he is extremely limited in what else he can do each day. He uses a riding lawnmower to cut the grass, but, he said, that task requires two days to complete because he must take frequent breaks. He sleeps only three or four hours at a time, and, in his waking hours, he must change positions often to relieve the pressure on his back.

Kristen Baker, a former employee of IWR Therapy Systems, reached the following conclusions after conducting All-day’s FCE:

“[Allday] demonstrated ability to lift in the sedentary physical demand level of ten pounds at knee to shoulder. However, secondary to symptom magnification characteristics, self-limiting behavior, and [nine] demonstrated inconsistencies, [Allday’s] actual capabilities may be questionable, and recommendations are difficult to make.... Although efforts did not appear maximal or consistent, these are the levels [Allday] was willing to perform.”

In August 2008, Allday consulted Dr. Michael Rosenbaum, a psychologist, for depression. The trial court admitted Dr. Rosenbaum’s treatment records in evidence. In an office note dated September 18, 2008, Dr. Rosenbaum stated:

“[Allday] mentioned that ... the increase in his level of pain ... has had a limiting effect on his activities. I enabled [Allday] to recognize that [his] depression and anxiety make[ ] it more difficult for him to tolerate the pain, contributing to his perception of the pain as being at a greater level.”

Patricia Russo, Allday’s vocational expert, testified that, based upon her two-hour interview with Allday and a review of Allday’s medical records, the deposition testimony of Allday’s physicians, and the FCE report, she concluded that Allday was 100 percent vocationally disabled as a result of his prior shoulder problems, carpal-tunnel syndrome, and his low-back pain.

In deposition testimony, Dr. Fontana stated that Allday’s 1999 back injury had resolved within three or four months and that Allday had continued to work without further back symptoms until the work-related accident on June 7, 2006. Dr. Fon-tana opined that the back pain that Allday was currently experiencing could have been brought on even without a traumatic injury, and, he said, if Allday had reported back pain to McAbee after the accident, he could state, to a reasonable degree of medical certainty, that there was a causative relation between the pain and the accident. When informed that Allday had reported back pain on the Monday following the accident, Dr. Fontana stated that it was “not unusual” to report a back injury after several days of increasingly severe back pain.

In deposition testimony, Dr. West acknowledged that the surgery had not helped Allday. He opined that Allday’s work-related accident on June 7, 2006, had either exacerbated or caused the back problems from which Allday was currently suffering.

On August 30, 2011, the trial court entered a judgment determining that Allday was permanently and totally disabled as a result of a June 7, 2006, injury to his lumbar spine and awarding him benefits under the Act in accordance with that determination. McAbee’s postjudgment motion was denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P., after which it filed a timely appeal to this court.

Our review is governed by the Act, which states, in pertinent part: “In reviewing the standard of proof ... and other legal issues, review by the Court of Civil Appeals shall be without a presumption of correctness.” Ala.Code 1975, § 25-5 — 81(e)(1). See also Ex parte Trinity Indus., Inc., 680 So.2d 262, 268 (Ala.1996). “In reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence.” Ala.Code 1975, § 25 — 5—81 (e)(2). Substantial evidence is “ ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ” Ex parte Trinity Indus., 680 So.2d at 269 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989), and citing § 12-21-12(d), Ala.Code 1975).

On appeal, McAbee presents seven issues for our review: (1) whether Allday provided notice of a back injury; (2) whether the trial court’s finding — that the June 7, 2006, accident was the medical cause of Allday’s back injury — is supported by substantial evidence; (3) whether the trial court’s permanent-total-disability determination is supported by substantial evidence; (4) whether the reference in the trial court’s judgment to Allday’s depression indicates that the trial court determined that the depression was the proximate result of a work-related injury; (5) whether the trial court properly calculated Allday’s average weekly earnings; (6) whether the trial court erred in awarding benefits for the remainder of Allday’s life; and (7) whether the trial court erred in calculating benefits and an attorney fee.

Notice

McAbee contends that Allday’s notice of the work-related accident was inadequate because Allday did not specify that he had suffered a back injury. Section 25-5-78, Ala.Code 1975, provides, in pertinent part, that “an injured employee or the employee’s representative, within five days after the occurrence of an accident, shall give or cause to be given to the employer written notice of the accident.” (Emphasis added.)

“The claimant need not notify the employer of the exact nature of the injury that flows from the accident. And the employer need not acquire actual knowledge of the nature or extent of the injury in order to meet the statutory requirement.

2 Terry A. Moore, Alabama Workers’ Compensation § 22:12 at 452-53 (1998). The trial court correctly concluded that Allday had provided McAbee with adequate notice of the accident.

Medical Causation

McAbee argues that Allday’s back problems predated his five-day period of employment with McAbee and had no causal relation to the work-related accident that occurred on June 7, 2006. McA-bee points out that the 2006 MRI of All-day’s lumbar spine was unchanged from a 1999 MRI of his lumbar spine, indicating, it says, that degenerative disk disease and a 1999 back injury were the medical causes of Allday’s current back problems.

“It is not necessary that the employment-related injury be the sole cause, or the dominant cause, of the [disability], so long as it was a contributing cause. See Ex parte Valdez, 636 So.2d 401 (Ala.1994). If the employee suffers from a latent preexisting condition that inevitably will produce injury or death, but the employment acts on the preexisting condition to hasten the appearance of symptoms or accelerate its injurious consequences, the employment will be considered the medical cause of the resulting injury. See, e.g., Taylor v. Mobile Pulley & Mach. Works, 714 So.2d 300 (Ala.Civ.App.1997).”

Associated Grocers of the South, Inc. v. Goodwin, 965 So.2d 1102, 1110 (Ala.Civ.App.2007).

Dr. Fontana, who had treated All-day for many years for other orthopedic problems, stated that, given Allday’s preexisting degenerative disk disease and 1999 back injury, Allday’s current back problems could have arisen even in the absence of any traumatic event. Nevertheless, because Allday’s 1999 back injury had resolved in a few months and Allday had continued to work at a physically demanding job for seven years without complaining of back pain, Dr. Fontana attributed the medical cause of Allday’s current back pain to the new injury on June 7, 2006. “A trial court may infer medical causation from circumstantial evidence indicating that, before the accident, the worker was working normally with no disabling symptoms but that, immediately af-terwards, those symptoms appeared and have persisted ever since. See Boise Cascade Corp. v. Jackson, 997 So.2d 1042, 1047 (Ala.Civ.App.2008) (citing Alamo v. PCH Hotels & Resorts, Inc., 987 So.2d 598, 603 (Ala.Civ.App.2007) (Moore, J., concurring specially)).” Waters Bros. Contractors, Inc. v. Wimberley, 20 So.3d 125, 134 (Ala.Civ.App.2009). See also Equity Group-Alabama Div. v. Harris, 55 So.3d 299, 311 (Ala.Civ.App.2010).

Dr. West also opined that Allday’s back pain had been caused or exacerbated by the work-related accident on June 7, 2006. The expert testimony relating to medical causation in this case was uncontradicted. The trial court’s medical-causation finding was supported by substantial evidence.

Permanent Total Disability

“Permanent total disability” is defined as “any physical injury ... resulting from an accident, which injury ... permanently and totally incapacitates the employee from working at and being retrained for gainful employment.” Ala. Code 1975, § 25-5-57(a)(4)d. “Total disability does not mean absolute helplessness; rather, it means that the employee is not able to perform his or her trade and is unable to obtain other reasonably gainful employment.” Dolgencorp, Inc. v. Hudson, 924 So.2d 727, 734 (Ala.Civ.App.2005). “ ‘[G]ainful employment means employment similar in remuneration to that earned prior to the injury. Implicit in this is that the gainful employment sought to be restored must be “suitable.” By “suitable” we mean employment which is compatible with the employee’s pre-injury occupation, age, education, and aptitude.’ ” Trans Mart, Inc. v. Brewer, 630 So.2d 469, 471 (Ala.Civ.App.1993) (quoting Ex parte Beaver Valley Corp., 477 So.2d 408, 412 (Ala.1985)).

Allday was 51 years old at the time of trial. The record contains no evidence of Allday’s educational background, but it demonstrates that he had an aptitude for, and enjoyed, the heavy labor in which he had been engaged for 20 years. Allday returned to work after previous shoulder and back injuries in 1992, 1998, and 1999, and he testified that he had wanted to return to work after the 2006 back injury. At trial, he expressed regret that, after the accident, he had lost 25 pounds — mostly muscle mass, he said — and could no longer provide for his family or pursue the active hobbies he had formerly enjoyed. Allday’s doctors expressed no doubt that he was suffering from unremitting pain and that the number and amount of medications he was taking affected his mental acuity. McAbee did not present an expert to refute Patricia Russo’s assessment that All-day was 100 percent vocationally disabled. The trial court’s determination that Allday is permanently and totally disabled is supported by substantial evidence.

Allday’s Depression

In the “Findings upon Disputed Facts” section of its judgment, the trial court stated:

“Allday introduced the records of Michael Rosenbaum, Ph.D., a psychologist who has treated Allday for depression. Dr. Rosenbaum’s records reflect that ... the depression from which Allday suffers contributes to symptom magnification, which explains the symptom magnification identified during Mr. All-day’s functional capacities evaluation.”

McAbee suggests that the foregoing finding constitutes an implicit determination that Allday’s depression was proximately caused by a physical injury he suffered during his employment with McAbee, but, it says, Allday’s complaint did not allege a psychological injury and Allday presented no evidence indicating that a work-related physical injury had proximately caused the psychological injury from which Allday is suffering.

We do not interpret the trial court’s finding as a determination regarding the came of Allday’s depression. Instead, we think the finding reflects the trial court’s choice to accept Dr. Rosenbaum’s explanation for the symptom-magnification behavior that Allday exhibited during the FCE — i.e., that depression can actually cause or contribute to involuntary symptom magnification — instead of the inference that could have been drawn from Kristen Baker’s testimony — i.e., that All-day was purposely “faking bad” for secondary gain.

Computation of Allday’s Average Weekly Earnings

Section 25-5-57(b), Ala.Code 1975, sets out three methods for computing an employee’s average weekly earnings. Subsection (b) first provides:

“Compensation under this section shall be computed on the basis of the average weekly earnings. Average weekly earnings shall be based on the wages, as defined in Section 25-5-1(6) of the injured employee in the employment in which he or she was working at the time of the injury during the period of 52 weeks immediately preceding the date of the injury divided by 52, but if the injured employee lost more than seven consecutive calendar days during the period, although not in the same week, then the earnings for the remainder of the period, although not in the same week, then the earnings for the remainder of the 52 weeks shall be divided by the number of weeks remaining after the time so lost has been deducted.”

The trial court decided that, because All-day had worked fewer than 52 weeks for McAbee before his injury, the first method was clearly inequitable.

The second method for establishing an employee’s average weekly earnings is stated as follows:

“Where the employment prior to the injury extended over a period of less than 52 weeks, the method of dividing the earnings during that period by the number of weeks and parts thereof during which the employee earned wages shall be followed, provided results just and fair to both parties will thereby be obtained.”

The trial court concluded that the second method was also inequitable because All-day had worked only five days for McA-bee.

Subsection (b) provides a third method for calculating average weekly earnings:

“Where by reason of the shortness of the time during which the employee has been in the employment of his or her employer or the casual nature or terms of the employment it is impracticable to compute the average weekly earnings as above defined, regard shall be had to the average weekly amount which during the 52 weeks prior to the injury was being earned by a person in the same grade, employed at the same work by the same employer, and if there is no person so employed, by a person in the same grade employed in the same class of employment in the same district. Whatever allowances of any character made to an employee in lieu of wages are specified as part of the wage contract shall be deemed a part of his or her earnings.”

Allday established that he had earned $1,401.40 for 50 hours’ work for McAbee. He had been paid $25.48 per hour for the first 40 hours he worked, with straight-time pay amounting to $1,019.20. He had been paid $38.22 per hour for the 10 overtime hours he worked, with time-and-a-half pay amounting to $382.20. Allday’s hourly rate was set by the union and was the same hourly rate for all jobs he had held during the year, irrespective of the employer for which he worked. Allday testified that, during the year, he had earned substantial overtime pay and that he had taken substantial time off between jobs.

McAbee introduced Exhibit 5, which showed the earnings of a McAbee employee who, McAbee claimed, was similarly situated to Allday. McAbee’s evidence demonstrated that the employee, a boilermaker, had earned $876 for 40 hours’ work, or $21.90 per hour. Allday objected on the ground that his own wages included additional pay for his ability to weld, whereas, he said, nonwelding boilermakers earn less pay, and there was no showing that McAbee’s employee was a welding boilermaker. When questioned by the trial court, McAbee was unable to state whether the worker whose wages were shown on Exhibit 5 was a welding or a nonwelding boilermaker. The trial court admitted McAbee’s Exhibit 5, stating: “I’ll just have to figure it out.”

The trial court concluded that it was authorized to deviate from the computation methods set out in § 25-5-77(b) and to use its discretion in determining Allday’s average weekly earnings. The trial court explained its reasoning as follows:

“Pursuant to case law and due to the unique circumstances of this case and Allday’s short-term employment with McAbee, this court is compelled to use its discretion in determining Allday’s average weekly wage. Taking into consideration Allday’s testimony concerning his hourly rate, and the fact that Allday worked considerable overtime, but also did not regularly work 52 weeks during the year, the court finds that Allday’s average weekly wage on June 7, 2006, was $1,078. The court finds that Allday was making an average gross weekly wage of $1,401.40 ..but Allday was only working an average of 40 weeks a year, which is $56,056 per year divided by 52, which results in an average weekly wage of $1,078 over a 52-week period.”

In G.A. West & Co. v. McGhee, 58 So.3d 167 (Ala.Civ.App.2010), a factually analogous case, the employee was injured on his second day of work with the employer. This court determined that the trial court had acted within the limits of its discretion in deviating from the statutory methods for calculating the employee’s average weekly earnings. We noted that, “although a trial court must consider evidence of the average weekly earnings of a similarly situated employee, that evidence is not conclusive.” 58 So.3d at 173. This court ultimately reversed the trial court’s calculation of the employee’s average weekly earnings in McGhee because, we held, the trial court’s determination “appear[ed] to be an amount closer to [the employee’s] maximum possible weekly earnings than his actual average weekly earnings.” Id.

“In the end, when it is impracticable to apply the formulas for determining average weekly wage for employees working less than 52 weeks, efforts should be aimed at finding the figure that most accurately reflects the employee’s earning capacity. The statute leaves the method used to achieve the most equitable result to the sound judgment and judicial discretion of the trial court. In exercising this discretion, the court should keep in mind that the result should be fair to the employer, as well as the employee.”

1 Moore, Alabama Workers’ Compensation § 15:10 at 666-67 (footnote omitted).

In the present case, the trial court inquired whether McAbee’s employee was a welder and questioned whether comparing that employee to Allday was like “comparing oranges to oranges.” When McAbee could not give a definitive answer to the trial court’s question, the court, nevertheless, admitted McAbee’s evidence and ultimately made an implicit determination that McAbee’s employee was not similarly situated to Allday.

Because the evidence indicated that, during a normal year, Allday worked “considerable overtime,” the trial court included in the calculation of Allday’s average weekly earnings both Allday’s straight-time and overtime earnings for the 5-day period in which Allday was employed by McAbee. The evidence, however, also indicated that, during a normal year, Allday usually worked only 40 weeks rather than 52. The trial court accounted for that fact by multiplying Allday’s gross weekly wage by 40 weeks and then dividing the product by 52 weeks. We conclude that the trial acted within the limits of its discretion to determine a fair calculation of Allday’s average weekly earnings.

Lifetime Benefits

Allday concedes that the trial court erred in ordering McAbee to pay him permanent-total-disability benefits “for the remainder of his life.” Section 25-5-57(a)(4)a. provides that compensation for a permanent total disability is to be paid “during the permanent total disability.” A judgment awarding permanent-total-disability benefits to be paid “for the remainder of [the claimant’s] life” is an incorrect application of the statute. We, therefore, reverse the trial court’s judgment in part and remand the cause with instructions “for the trial court to correct that aspect of its judgment relating to the period during which benefits are to be paid for permanent total disability.” Bostrom Seating, Inc. v. Adderhold, 852 So.2d 784, 800-01 (Ala.Civ.App.2002).

Benefit and Attorney-Fee Calculation

Section 25-5-57(a)(4)a. provides, in pertinent part:

“For permanent total disability, ... the employee shall receive 66% percent of the average weekly earnings received at the time of the injury, subject to a maximum and minimum weekly compensation as stated in Section 25-5-68.”

Multiplying Allday’s average weekly earnings at the time of the injury ($1,078) by 66% percent produces a compensation rate of $717.95. That compensation rate, however, is subject to the maximum weekly compensation limit set out in § 25-5-68. The maximum weekly compensation allowed on June 7, 2006, was $629. Because Allday’s compensation rate exceeded the maximum weekly compensation limit of $629 in effect on June 7, 2006, the weekly compensation to which Allday is entitled under the Act is $629.

In Ex parte St. Regis Corp., 535 So.2d 160 (Ala.1988), our supreme court held that to award a lump-sum attorney fee in a permanent-total-disability case, the trial court must reduce the compensation award to present value according to the six percent discount rate set out in § 25-5-83, Ala.Code 1975.

“According to St. Regis, to properly award a lump sum of attorney’s fees in a permanent total disability [case], the trial court must first determine the life expectancy of the employee. The use of the standard mortality tables has been authorized for this purpose. Once the number of weeks of the employee’s life expectancy is determined, the trial court must discount the number of weeks by the six percent value. Then the number of weeks reduced to present value must be multiplied by the compensation rate to determine the amount of compensation awarded. The 15 percent statutory maximum is then applied to the compensation awarded to set a ceiling on the amount of lump-sum attorney’s fees that can be awarded.”

2 Moore, Alabama Workers’ Compensation § 29:14 at 787-88 (footnotes omitted).

Although the trial court made minor arithmetical errors in calculating the lump-sum attorney fee (errors that we have indicated and corrected in brackets in the quotation below), its method of computation follows the applicable statutes and the formula outlined in St. Regis. The judgment states:

“It is ordered, adjudged and decreed by the court as follows:
“1. McAbee is ordered to pay Allday back-due temporary-total-disability benefits and permanent-total-disability benefits at the rate of $629 per week (the statutory maximum at that time), from March 31, 2008 (the last day Allday received temporary-total-disability benefits), through the date of this order, which (as of August 22, 2011), totals 177 weeks, or $111,333.
“2. McAbee is ordered to back-pay Allday $8.50 per week ($629 minus $620.50), from June 7, 2006, until March 31, 2008 (93 weeks), for a total sum of $790.50.
“3. McAbee is ordered to pay Allday permanent-total-disability benefits.... Allday is presently 52 years old, born March 7, 1959, and, according to the Commissioner’s Ordinary Standard Mortality Table, has a life expectancy of 26.46 years, or 1,376 weeks, which has a present value of 690.7597 weeks.[] Thus, the present value of this award is [$434,487.85, not] $440,281.57 (690.7597 x $629). Therefore, McAbee is ordered to pay Allday $534.65 ($629 x 15% = $94.35; $629 minus $94.35 = $534.65) for [26.46 years, not] 27.34 years, at which point Allday’s payment shall go back to $629 per week.
“4. Pursuant to § [25-5-90, Ala.Code 1975,] of the Act, Allday’s attorney ... is awarded, and McAbee is ordered to pay in a lump sum, an attorney’s fee in the amount of [$81,991.71, not] $81,991.86, ... which is fifteen percent (15%) of all sums due. (15% of $111,333 = $16,699.95; 15% of $790.50 = $118.58; 15% of [$434,487.85 = $65,173.18, not] 15% of $434,488.85 = $65,173.33).”

Conclusion

The trial court’s judgment is reversed insofar as it (a) ordered McAbee to pay Allday permanent-total-disability benefits “for the remainder of his life” and (b) made minor arithmetical errors in calculating the lump-sum attorney-fee award. On remand, the trial court is instructed to correct the judgment as specified. In all other respects, the judgment is affirmed.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

THOMPSON, P.J., and THOMAS, MOORE, and DONALDSON, JJ., concur.

      . During physical-therapy sessions under the supervision of Dr. Fontana in October and November 2006, the physical therapists had also noted symptom-magnification characteristics and inconsistent effort by Allday.

      " 62 See ... Ragland Brick Co. v. Campbell, 409 So.2d 443 (Ala.Civ.App. 1982) (although evidence was in dispute over whether employee notified employer that he had injured his back in work-related fall, conflict was immaterial since notice of accident, not notice of injury, is all that is required)....”

      . On the date this opinion was released, this information could be found at http://dir. alabama.gov//docs/guides/wc-weekfywage.pdf (as visited on April 19, 2013; a copy of the Web page containing this information is available in the case file of the clerk of the Alabama Court of Civil Appeals).

      . On the date this opinion was released, the State Department of Labor provided a present-value calculator that could be found at http://dir.alabama.gov/wc/pvalue.aspx.