author: WOODALL, Justice.

text:
    Lee GEORGE v. ALABAMA POWER COMPANY.
    1070389.
    Supreme Court of Alabama.
    Oct. 31, 2008.
    As Modified on Denial of Rehearing Jan. 16, 2009.

      Ted Taylor, Leah 0. Taylor, and Rhonda Pitts Chambers of Taylor & Taylor, Birmingham, for appellant.
    S. Allen Baker, Jr., Teresa G. Minor, Ed R. Haden, Sean W. Shirley, and Stephen M. Parham of Balch & Bingham, LLP, Birmingham, for appellee.
    Bernard Harwood of Rosen Harwood, Tuscaloosa, for amici curiae Electric Cities of Alabama, Manufacture Alabama, and Alabama Rural Electric Association, in support of the appellee.
   WOODALL, Justice.

Lee George appeals from summary judgments in favor of Alabama Power Company (“APCo”) in his action seeking compensation for injuries he sustained when he came in contact with a wire owned by APCo. We affirm in part, reverse in part, and remand.

I. Procedural and Factual Background

Viewed in the light most favorable to George, the nonmovant, the evidence indicates the following. On May 12, 2003, George was electrically shocked and seriously injured while he was working as a traffic-signal technician for the City of Birmingham (“the City”). The injury occurred as one of George’s three coworkers lifted him in the bucket of a “bucket truck” to install a new traffic signal over the intersection of Avenue V and 18th Street in Ensley. The signal was to be suspended from a line strung between two steel poles owned by the City.

APCo owns and operates four lines at that intersection. The three uppermost lines are high-voltage primary-distribution lines (hereinafter referred to as the “primary lines”). The lowest of the four lines is a neutral wire, which should not be energized.

According to witnesses, George’s neck contacted the lowest of the four wires — the neutral wire — and he was immediately enveloped in smoke and flames. He remained in contact with the wire and was burning and convulsing in the electricity for several minutes until rescue personnel arrived at the scene. George was then disconnected from the wire by lowering the bucket, and his burning clothes were extinguished by rescuers. As a result of the accident, George’s left arm and two fingers of his right hand were amputated and he suffered extensive burns to his neck, back, and abdomen.

The accident occurred approximately half a mile from APCo’s “Pratt City substation” (hereinafter referred to as “the substation”). The electrical system between the substation and the accident site was grounded in a “multi-ground wire system,” which consists of a series of 8-foot or 10-foot rods (hereinafter referred to as “grounding rods”) implanted in the ground at each power pole and connected to the pole by a ground wire.

On May 3, 2004, George sued APCo, alleging that APCo had negligently and/or wantonly constructed, operated, or maintained its power lines, and that its negligence or wantonness had caused his injuries. On September 27, 2005, APCo moved for a partial summary judgment. That motion challenged only the sufficiency of the evidence of wantonness. The trial court entered a partial summary judgment in favor of APCo on the wantonness claim.

After a three-week trial, the jury was unable to reach a verdict on the negligence claim, and the court declared a mistrial. Subsequently, George engaged the services of Dr. Charles E. Benedict and Daniel H. Craven to provide expert testimony as to causation of the accident. APCo then filed various motions, including a motion in limine to exclude the opinions of Benedict and Craven, and a motion for a summary judgment as to the negligence claim.

On September 4, 2007, the trial court entered a summary judgment in favor of APCo. In that connection, it also granted APCo’s motion in limine to exclude the opinions of George’s causation experts. Regarding Benedict, the court held that “his knowledge, skill, experience, training and/or education [did not] meet[] a minimum threshold to offer an opinion as to electrical power distribution issues.” It also concluded that Benedict’s opinion was “based on neither firsthand knowledge or admissible evidence.” The court further concluded that Craven’s opinions were based on mere “conjecture.” Finally, the court stated:

“[T]here is no evidence ... from which a fair minded person could reach a conclusion based upon an inference of fact as to the cause of the energized neutral. There are merely conjectures as to what might have caused the neutral wire to become energized, with no evidence to corroborate those conjectures.”

George filed a motion to alter, amend, or vacate that judgment, citing principles and authority relating to the doctrine of res ipsa loquitur. In oral argument of that motion, George’s counsel expressly invoked the doctrine. During that argument, the following colloquy occurred:

“[The court:] I think I’m now clear on where you are coming from, [counsel]. I think that, as I understand your position ..., that once there was, for the purposes of summary judgment, an agreement that he hit the neutral line, that, therefore, that alone is sufficient to get the case to the jury.
“[George’s counsel:] Yes, ma’am.
“[The court:] And under the theory of res ipsa [loquitur ]?
“[Counsel:] Yes, ma’am.
“[The court:] I’m clear and I understand y’all’s position on that.
“[The court:] Basically, my opinion is that ... res ipsa [loquitur ] does not apply in this case. I think that, under these circumstances, you have a clear issue to take up, if that is what you are trying to set up in terms of what you want to set up on appeal. I am very clear that I do not think that the law, in this area, is such that res ipsa [loqui-tur I applies. If I’m incorrect, then, of course, the [Supreme Court] will, I’m sure, tell me that.
“[The court:] And if it is your position that res ipsa [loquitur I should apply, then I — and if that is, indeed, correct, then my order is clearly wrong — if res ipsa [loquitur ] does not apply, then, I believe my order is correct. Since I do not believe that res ipsa [loquitur ] applies as a matter of law, then, you know, I’m not inclined to change my order.”

(Emphasis added.) The trial court denied George’s motion, and George appealed, contending, among other things, (1) that the trial court erred as a matter of law in holding that the doctrine of res ipsa loqui-tur did not apply in this case to preclude the summary disposition of his negligence claim, and (2) that he had presented sufficient evidence in support of his wantonness claim.

II. Discussion

APCo owes “ ‘a duty to conduct and operate its electric utility business in a reasonably safe and prudent manner so as to avoid unreasonable risks and dangers to its customers and to the public.’” Dunn v. Wixom Bros., 493 So.2d 1356, 1359 (Ala.l986)(quoting Alabama Power Co. v. Robinson, 404 So.2d 22, 23 (Ala.1981)). “An electric company is not an insurer nor is it under obligation to so safeguard its wires that by no possibility can injury result therefrom.” Alabama Power Co. v. Berry, 254 Ala. 228, 233, 48 So.2d 231, 235-36 (1950). However, it owes the duty “to use that degree of care commensurate with the risk and danger involved and the public has the right to assume that its high-voltage wires will not be negligently maintained.” 254 Ala. at 232, 48 So.2d at 234.

A. Negligence and Res Ipsa Loquitur

“Proof of negligence requires the establishment of a duty and a breach thereof that proximately caused damage to the plaintiff. Thompson v. Lee, 439 So.2d 113, 115 (Ala.1983). Mere proof that an accident and an injury occurred is generally insufficient to establish negligence. Id.; Mobile Press Register, Inc. v. Padgett, 285 Ala. 463, 233 So.2d 472 (1970). However, in limited circumstances, a jury will be allowed to infer negligence if the doctrine of res ipsa loquitur is deemed to be applicable. Thompson, supra.

South Coast Props., Inc. v. Schuster, 583 So.2d 215, 217 (Ala.1991) (emphasis added).

“For the doctrine [of res ipsa loqui-tur] to apply, there are at least three essentials: (1) the defendant must have had full management and control of the instrumentality which caused the injury; (2) the circumstances must be such that according to common knowledge and the experience of mankind the accident could not have happened if those having control of the management had not been negligent; (3) the plaintiffs injury must have resulted from the accident. ...”

Berry, 254 Ala. at 236, 48 So.2d at 238 (emphasis added).

“ ‘The plaintiff need not ... conclusively exclude all other possible explanations .... It is enough that the facts proved reasonably permit the conclusion that negligence is the more probable explanation. ..Kmart Corp. v. Bassett, 769 So.2d 282, 289 (Ala.2000) (Hooper, C.J., dissenting and quoting Restatement (Second) of Torts § 328D cmt. e (1965)) (emphasis added).

Whether the presumption of negligence arises in the first instance is ordinarily a question of law, which we review de novo. Maroules v. Jumbo, Inc., 452 F.3d 639, 643 (7th Cir.2006); Heastie v. Roberts, 226 Ill.2d 515, 877 N.E.2d 1064, 315 Ill.Dec. 735 (2007); Pacheco v. Ames, 149 Wash.2d 431, 436, 69 P.3d 324, 327 (2003). Whether the presumption is rebutted is a question for the jury. Smith v. Kennedy, 43 Ala.App. 554, 563, 195 So.2d 820, 828 (1966).

As early as 1916, this Court recognized the applicability of the doctrine of res ipsa loquitur in the context of an electrocution caused by a provider of electricity. In Bloom v. City of Cullman, 197 Ala. 490, 73 So. 85 (1916), Frank Bloom, a pedestrian on a sidewalk in the City of Cullman was killed when he grasped a “ ‘chain’ used by the city of Cullman in raising and lowering a street light operated by the municipality to light public thoroughfares therein.” 197 Ala. at 492, 73 So. at 86. There were no eyewitnesses to the accident at the actual moment of contact. 197 Ala. at 494, 73 So. at 87. A complaint filed against the City of Cullman by Agnes Bloom, the adminis-tratrix of Bloom’s estate, averred that the City of Cullman negligently allowed the chain to become “charged with a [deadly] current of electricity.” 197 Ala. at 491, 73 So. at 85-86. “The trial court gave the general affirmative charge for the defendant,” 197 Ala. at 494, 73 So. at 87, and judgment was entered for the City of Cull-man.

The resolution of Bloom’s appeal turned on the applicability of the doctrine of res ipsa loquitur. 197 Ala. at 496-97, 73 So. at 88. The only evidence as to the source of the electric current in the chain was the proximity of the chain and a suspension cable that held the streetlight to “[f]eed wires conveying electric current.” 197 Ala. at 492, 73 So. at 86. “[T]here was evidence tending to show that the insulation on the feed wires had rotted and had fallen away, exposing the feed wire to at least possible contact with the suspension cable and the ‘chain’ or with some of the metal mechanism connected therewith.” 197 Ala. at 492, 73 So. at 86 (emphasis added).

This Court reversed the judgment for the City of Cullman, holding that the doctrine of res ipsa loquitur was applicable in the case, “where ... a pedestrian in a public street was stricken by contact with electric current passing from feed wires to a street light and communicated to the ‘chain’ ..., through some deficiency in the maintenance or repair of the mechanism owned by and under the supervision and control of the municipality.” 197 Ala. at 497, 73 So. at 88 (emphasis added). The Court explained:

‘“In many cases the maxim “res ipsa loquitur ” applies. The affair speaks for itself. The accident, the injury, and the circumstances under which they occurred are in some cases sufficient to raise a presumption of negligence, and thus cast upon the defendant the burden of establishing his freedom from fault. Proof of an injury occurring as the proximate result of an act of the defendant, which would not usually, if done with due care, have injured any one, is enough to make out a presumption of negligence. When a thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from a want of care. So also: “Where it is shown that the accident is such that its real cause may be the negligence of the defendant, and that, whether it is so or not, is within the knowledge of the defendant, the plaintiff may give the required evidence of negligence, without himself explaining the real cause of the accident, by proving the circumstances, and thus raising a presumption that, if the defendant does not choose to give the explanation> the real cause was negligence on the part of the defendant.'” ’ ”

197 Ala. at 496, 73 So. at 88 (emphasis added) (quoting 1 Shearman & Redfield on Negligence § 59 (5th ed. 1898)).

Similarly, we agree with George that the facts and circumstances render this case particularly appropriate for the application of the doctrine. It is apparent that George does not know why he was injured, assuming, as we do for purposes of review of a summary judgment, that he contacted the neutral wire. He has proposed various theories as to how the wire became energized in the first place. One theory is that APCo allowed its primary lines to “sag” so closely to the neutral wire that something' — either the wind, a tree limb, or the collision of an automobile with a power pole — caused the wires to make contact. He has also proposed that, regardless of how the neutral line became energized, APCo’s grounding system was somehow ineffective. The trial court characterized the testimony of his expert as merely “conjecture” and speculation. Nevertheless, it is undisputed that, in a properly functioning electrical-distribution system in which the neutral wire is properly grounded, the neutral wire cannot become energized and, thus, one who touches it will not be injured. Obviously, APCo’s system was not functioning properly when George came in contact with the neutral wire.

Moreover, whether the real cause of the accident is attributable to APCo’s negligence is peculiarly “within the knowledge of [that] defendant.” Bloom, 197 Ala. at 496, 73 So. at 88. Indeed, it is in APCo’s own interest to determine the cause of this accident. This is so, because its own personnel may well be at risk operating a system in which a serious malfunction occurs and remains inexplicable. The ordinary-occurrence prong is satisfied.

However, APCo argues that the management-and-control prong is not satisfied. In particular, APCo says:

“George was part of a City work crew that was managing and controlling the lines at the time of the accident, and the poles supported telecommunication lines that APCo did not own, allowing the owners of those lines some access as well. APCo did not have exclusive management or control of the intersections or the tree limbs.”

APCo’s brief, at 51-52 (emphasis added) (citations to the record omitted).

This argument is entirely inappo-site, for two reasons. First, it is undisputed that the electrical-distribution system was owned and managed by APCo. George was not attempting to manage, control, or manipulate any part of that system but was, instead, working from a bucket truck on the City’s own poles and wires when he was injured by contact with a portion of APCo’s system. Second, for APCo to have the requisite management and control to invoke the application of the doctrine of res ipsa loquitur, it need not have charge of all such collateral processes as weather and traffic. Instead, APCo must produce evidence that one such collateral process caused George’s injury without any negligence on its part. See Khirieh v. State Farm Mut. Auto. Ins. Co., 594 So.2d 1220, 1224 (Ala.1992) (the “ ‘control requirement is subordinated to its general purpose, that of indicating that it probably was the [alleged wrongdoer’s] negligence that caused the accident’ ” (quoting 57B Am.Jur.2d Negligence § 1874 (1989))).

APCo also relies on Alabama Power Co. v. Berry, supra. Its reliance is misplaced. To be sure, this Court held in Berry that the trial court erred in refusing APCo’s requested affirmative charge. It did so, however—not because the doctrine of res ipsa loquitur is not applicable in an electrocution case, as APCo reads the opinion, see Bloom, supra — but because the instrument alleged to have caused the injury, namely, a fine piece of copper wire, of the sort used “in the coil of a T-model Ford,” 254 Ala. at 233, 48 So.2d at 235, “was not owned, maintained or controlled by the defendant.” 254 Ala. at 236, 48 So.2d at 238. That small wire, which was allegedly dangling from APCo’s power line, “was no part of its equipment nor under its control, and information or knowledge in regard to it was as accessible to the plaintiff as [APCo].” Id.

In this case, by contrast, the offending instrumentality — the neutral wire — was undisputedly part of APCo’s equipment. Like the chain in Bloom, the neutral wire was an integral part of a system that was “owned by and under the supervision and control of the [defendant].” 197 Ala. at 497, 73 So. at 88. The management-and-control prong is satisfied in this case.

The trial judge acknowledged that if the doctrine of res ipsa loquitur applies in this case, “then [her] order is clearly wrong.” Because we hold that the doctrine does apply, we must hold that the trial court erred in entering a summary judgment for APCo as to the claim that it negligently “constructed, operated, or maintained its power lines.” To- that extent, the judgment is reversed, and the cause is remanded.

B. Wantonness

We affirm the summary judgment, however, on the wantonness claim.

“ Wantonness’ is statutorily defined as ‘[c]onduct which is carried on with a reckless or conscious disregard of the rights or safety of others.’ Ala.Code 1975, § 6-ll-20(b)(3). ‘Wantonness’ has been defined by this Court as the conscious doing of some act or the omission of some duty, while knowing of the existing conditions and being conscious that, from doing or omitting to do an act, injury will likely or probably result.”

Alfa Mut. Ins. Co. v. Roush, 723 So.2d 1250, 1256 (Ala.1998) (emphasis added).

To overcome a properly supported motion for a summary judgment challenging the sufficiency of evidence of wantonness, the nonmovant “must present substantial evidence showing that [the defendant’s] breach of a duty to them was the result of a conscious action that proximately caused them damage.” Carter v. Chrysler Corp., 743 So.2d 456, 463 (Ala.Civ.App.1998) (emphasis added). Proof of wantonness is not aided by the doctrine of res ipsa loquitur. Smith v. Kennedy, 43 Ala.App. 554, 564, 195 So.2d 820, 829 (1966) (“The doctrine of res ipsa loquitur cannot be invoked to prove wilful or wanton ... misconduct.”).

The problems with George’s wantonness claim are related to, and illustrated by, his faltering attempts to prove his negligence claim without the aid of the doctrine of res ipsa loquitur. Benedict opined that improper grounding caused this accident. However, the only supporting evidence presented on that issue — other than the fact of the injury itself—was a manual of guidelines promulgated by APCo for the grounding of power poles, specifying the placement of the grounding rods one foot below the ground surface and in “undisturbed soil not less than [one foot] outside the [pole] hole.” Benedict faulted APCo for placing the grounding rods directly against the power poles and for, in at least one instance, leaving two or three feet of a rod protruding above the ground.

APCo presented testimony that its grounding system complied with, or exceeded, the National Electrical Safety Code (“the Code”), which specifies a “total” of “not less than four [grounding rods] in each 1.6km (mile) of the entire line” and a “resistance to ground not exceeding 25 [ohms].” APCo’s placement of a grounding rod at each power pole exceeded the Code’s four-rods-per-mile specification. Without objection by George, APCo offered evidence that its own post-accident testing of the grounding rods between the substation and the accident site revealed an average resistance of 1.41 ohms per ground, and, at no point, resistance exceeding 25 ohms.

Assuming — without deciding — that Benedict’s testimony was admissible, and that the placement of the grounding rods had something to do with this accident, the evidence falls short of substantial evidence of wantonness. There is no evidence of APCo’s knowledge that “injury [would] likely or probably result” from its placement of the grounding rods. No evidence was adduced of injuries from such a placement scheme on any electrical-distribution system. Simply put, the circumstances that surround this accident do not lend themselves to a claim of wantonness.

For these reasons, a summary judgment was properly entered for APCo on the wantonness claim. The judgment is, therefore, to that extent, affirmed.

III. Conclusion

In summary, the judgment in favor of APCo on the wantonness claim is affirmed. The judgment in favor of APCo on the negligence claim is reversed, and the case is remanded for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . George has no memory of the accident.

      . Among the facts the parties concede were in dispute was the identity of the line George contacted. Although numerous witnesses testified that George contacted the neutral wire, APCo took the position — which it has pressed with varying degrees of vigor throughout this litigation — that George contacted a primary line. For purposes of review of the summary judgments on this appeal, however, APCo does not challenge the evidence that George made contact with the neutral wire.

      . Benedict performed no test on the grounding system, appearing, instead, to base his criticism of the system on the fact that an injury had occurred. In that connection, the following colloquy transpired:
      "Q. [By APCo's counsel:] Do you know if there was a good solid ground contact in this case?

        “A. [By Benedict:] It doesn’t sound like it.
      “Q. What do you mean 'doesn't sound like it'?
      "A. Because he got electrocuted."

      (Emphasis added.)

      . Having held as we do on the issues discussed in this opinion, we deem it unnecessary to address other matters discussed in the parties’ briefs.


source: Caselaw Access Project

author:
BOLIN, Justice.
      MURDOCK, Justice

license: Public Domain

text:
    ALFA MUTUAL INSURANCE COMPANY v. David A. BONE and Lora Bone. David A. Bone and Lora Bone v. Alfa Mutual Insurance Company.
    1061808 and 1061834.
    Supreme Court of Alabama.
    Jan. 9, 2009.

      Rebecca A. Walker, Gadsden, for appellant/cross-appellee Alfa Mutual Insurance Company.
    Thomas E. Davis, Gadsden, for appel-lees/cross-appellants David A. Bone and Lora Bone.
   BOLIN, Justice.

Alfa Mutual Insurance Company appeals from a summary judgment in favor of David A. Bone and his wife, Lora Bone (hereinafter collectively referred to as “the Bones”), on Alfa’s complaint seeking a judgment declaring its rights and liabilities under an insurance policy. The Bones cross-appeal, asserting that the trial court erred in denying their summary-judgment motion as to one issue. We dismiss both the appeal and the cross-appeal.

Facts and Procedural History

At the time of the incident giving rise to this action, Robert E. Townley was residing in a house owned by Jean Townley Waters, his grandmother. The house was located on “Leesburg Rd. HWY 279” in Etowah County and was insured by a policy of insurance issued by Alfa. The declarations page of the policy named Waters as the insured and listed her mailing address as “908 S. 6th St., Gadsden, Al. 35901.” The homeowner’s policy issued by Alfa provides the following definitions:

“You and your mean the named insured shown on the Declarations.
“9. Insured means;
“a. you and residents of your household who are:
“(1) your relatives;
“16. Relative means a person related to you or your spouse by blood or marriage.”

Additionally, the homeowner’s policy excluded coverage for “bodily injury” or “property damage,”

“(1) which is either expected or intended by an insured ... [or]
“(2) which is the result of willful or malicious acts of an insured .... ”

Townley had been residing at the Lees-burg address for approximately two years at the time of the shooting that is the basis for this action. Townley did not pay his grandmother rent for living at the Leesburg address, but he did pay for the utilities and performed maintenance and upkeep on the house. At no time had Waters resided with Townley at the Leesburg address. Rather, at all times relevant to the issues presented in this case, Waters resided at the Gadsden address listed in the homeowner’s policy.

The evidence established the following facts. Before she was married to David, Lora had been married to Townley. Townley’s marriage to Lora ended in divorce in May 2004, after Lora and David had engaged in an extramarital affair. Townley and Lora were awarded joint custody of their children following the divorce. Townley and David had been friends before the divorce and continued to be friends afterwards. However, there was a history of arguments and confrontations between the men.

On January 2, 2005, Townley and his children had returned to the Leesburg address after visiting relatives out of town. Lora and David were returning from Gat-linburg, Tennessee, where they had celebrated the new year. During the Bones’ return trip, Townley and Lora argued over the course of several cellular-telephone conversations as to whether Lora could pick the children up that day. Townley testified that he had visitation with the children that day and that the children were not scheduled to return to Lora until the following day. The argument between Townley and Lora escalated with each conversation, and it ended with Lora telling Townley that she was coming to get the children and Townley telling Lora not to do so.

As Townley was unpacking his vehicle he placed a nine-millimeter handgun he owned in the rear pocket of his pants. After he placed the handgun in his pocket, one of the children called him over to a trampoline in the yard where she was playing. Townley was standing by the trampoline when the Bones arrived. The Bones parked in a paved driveway located on property owned by David Brewster, which was adjacent to the Leesburg address. The driveway was used jointly by both Brewster and Townley as a boat ramp to access Lake Weiss, which was located to the rear of the Waters and Brewster properties. The driveway was also used by Townley to access a small outbuilding on the Waters property where personal recreational watercraft were stored. Townley was unsure where the actual boundary line between the Brewster property and the Waters property was located but stated that when one pulls into the driveway he or she is on Brewster’s property and that when one reaches the water he or she is on Waters’s property.

After the Bones pulled into the driveway, Lora got out of her vehicle and began arguing with Townley. Townley stated that he told Lora that she needed to leave. Townley then moved toward David, who was standing beside the driver’s door of the vehicle, and the two men began arguing. Townley stated that he tossed his cellular telephone at David. David stated that Townley threw the cellular telephone at him and struck him in the face with it. David then picked Townley’s cellular telephone up and threw it toward the lake. Townley then moved around the vehicle and struck the windshield and the passenger-side window, causing them both to shatter. Townley reached into the vehicle through the shattered passenger-side window, retrieved David’s cellular telephone, and then threw David’s telephone toward the lake.

After Townley and David had thrown each other’s cellular telephones toward the lake, they proceeded down the driveway toward the lake to retrieve them. Town-ley and David argued, cursed, and “scuffled” with each other as they made their way down the driveway. As the confrontation escalated in the driveway, Townley yelled for his oldest child to telephone emergency 911. He then pulled the handgun from his back pocket and told David to leave. Townley stated that he held the handgun across his chest in a nonthreatening manner and that he never pointed it at David. Townley testified that David then threw a punch at him, striking him in the eye and causing the handgun to discharge. David was struck in the chest and severely injured. Townley testified that he did not know how the safety device on the handgun became disengaged. David testified that he did not punch Townley and that once he saw the handgun in Townley’s hand he decided to leave. He stated that in the instant that he turned to walk away he felt something strike him in the chest. David testified that he never saw the gun pointed at him in a threatening manner. After being shot, David walked up the driveway and left the scene with Lora. Townley was indicted for, and pleaded guilty to, assault in the third degree, a violation of § 13A-6-22(a)(2), Ala.Code 1975.

The Bones sued Townley and Waters on December 22, 2006, alleging that Townley negligently and/or recklessly discharged a handgun while he was on premises owned by Waters, which caused David to suffer serious personal injuries. Townley and Waters answered the complaint on January 23, 2007, generally denying the allegations in the complaint and asserting certain affirmative defenses.

On February 1, 2007, the Bones amended their complaint to allege that Townley’s conduct in discharging the handgun was willful and wanton. On March 2, 2007, Alfa moved to intervene in the Bones’ action against Townley and Waters, seeking a declaration of its rights and liabilities under the homeowner’s insurance policy issued by Alfa to Waters, which insured the premises on which the shooting allegedly occurred. Alfa alleged in its complaint in intervention that Townley and Waters were not covered by the policy because, it alleged, Townley was not an insured under the policy; the shooting did not occur on the insured premises; the shooting was excluded from coverage as an “expected or intended” act; and the shooting was excluded from coverage as a “willful or malicious” act. On April 2, 2007, the trial court granted Alfa’s motion to intervene. Thereafter, the Bones answered Alfa’s complaint in intervention, generally denying the allegations.

On June 14, 2007, the Bones moved for a summary judgment, arguing that Townley, Waters’s grandson, was residing on the insured premises with her consent at the time of the shooting and that the policy exclusions for “expected or intended” acts and “willful or malicious” acts were not applicable to exclude Townley from coverage because, they argued, there was no evidence to indicate that Townley intended to shoot David.

On July 18, 2007, Alfa responded to the Bones’ motion for a summary judgment and filed its own motion for a summary judgment. Alfa argued in support of its motion that Townley was not an insured under the homeowner’s policy; that the shooting did not occur on the insured premises; and that, even if Townley was an insured and the shooting occurred on the insured premises, there was no coverage because the shooting was an “expected or intended” act of Townley or a “willful or malicious” act and therefore fell within an exclusion to the policy.

On July 23, 2007, the Bones amended their complaint a second time to delete the claim alleging that Townley’s conduct constituted willful or wanton conduct. On July 26, 2007, the Bones amended their motion for a summary judgment and responded to Alfa’s argument in its summary-judgment motion that Townley was not an insured under the homeowner’s policy and that the shooting did not occur on the insured premises. The Bones contended that they were entitled to a summary judgment on all four coverage issues before the trial court. On August 2, 2007, Alfa responded to the Bones’ amended motion for a summary judgment and their response to Alfa’s summary-judgment motion. Alfa also filed an answer on that same date to the Bones’ second amended complaint.

Following a hearing, the trial court, on September 7, 2007, entered a summary judgment in favor of the Bones and against Alfa on three of the four coverage issues, finding: (1) that the shooting was not expected or intended and thus was not excluded from coverage under the “expected or intended” exclusion; (2) that Town-ley was an insured under the policy; and (3) that the shooting occurred on the insured premises. However, the trial court found that the issue whether coverage was excluded based on the exclusion for “willful or malicious” acts presented a factual issue to be decided by the trier of fact. On September 19, 2007, the trial court entered an order certifying its summary judgment on the three coverage issues as final pursuant to Rule 54(b), Ala. R. Civ. P. These appeals followed.

Case no. 1061808

This Court recently stated:

“[I]t is incumbent upon this Court to ensure that it has jurisdiction to hear the appeal.
“ ‘ “As this court has said many times previously, a final judgment is necessary to give jurisdiction to this court on an appeal, and it cannot be waived by the parties. ...”
“ “When it is determined that an order appealed from is not a final judgment, it is the duty of the Court to dismiss the appeal ex mero motu.’

“Powell v. Republic Nat’l Life Ins. Co., 293 Ala. 101, 102, 300 So.2d 359, 360 (1974) (quoting McGowin Investment Co. v. Johnstone, 291 Ala. 714, 715, 287 So.2d 835, 836 (1973)).

“ ‘Ordinarily, an appeal can be brought only from a final judgment. Ala.Code 1975, § 12-22-2. If a case involves multiple claims or multiple parties, an order is generally not final unless it disposes of all claims as to all parties. Rule 54(b), Ala. R. Civ. P. However, when an action contains more than one claim for relief, Rule 54(b) allows the court to direct the entry of a final judgment as to one or more of the claims, if it makes the express determination that there is no just reason for delay’
“Grantham v. Vanderzyl, 802 So.2d 1077, 1079-80 (Ala.2001).”

North Alabama Elec. Coop. v. New Hope Tel. Coop., 7 So.3d 342, 344 (Ala.2008).

With regard to Rule 54(b), Ala. R. Civ. P., this Court has stated:

“Pursuant to Rule 54(b),. a trial court may direct ‘the entry of a final judgment as to one or more but fewer than all of the claims or parties.’ But Rule 54(b) makes an order final — and therefore ap-pealable — ‘only where the trial court has completely disposed of one of a number of claims, or one of multiple parties.’ Tanner v. Alabama Power Co., 617 So.2d 656, 656 (Ala.1993) (quoting Committee Comments on the 1973 adoption of Rule 54(b)) (emphasis added in Tanner ). In other words, for a Rule 54(b) certification of finality to be effective, it must fully adjudicate at least one claim or fully dispose of the claims as they relate to at least one party.”

Haynes v. Alfa Fin. Corp., 730 So.2d 178, 181 (Ala.1999).

In this case, Alfa sought a judgment declaring its rights and liabilities under the homeowner’s policy issued to Waters based on its presentation of four coverage issues: (1) whether Townley was an insured under the policy; (2) whether the shooting occurred on insured premises; (3) whether the shooting was excluded from coverage as an “expected or intended” act; and (4) whether the shooting was excluded from coverage as a “willful or malicious” act. The trial court entered a summary judgment against Alfa and in favor of the Bones on the first three coverage issues. However, the trial court found that a material question of fact existed as to whether the shooting was the result of a “willful or malicious” act, and it did not dispose of this issue by summary judgment. Because this issue is still pending in the trial court awaiting determination by the appropriate trier of fact, the summary judgment did not completely dispose of Alfa’s claim seeking a declaratory judgment as to its rights and liabilities under the homeowner’s policy. Haynes, supra. See also National Union Fire Ins. Co. of Pittsburgh, Pa. v. City Sav., F.S.B., 28 F.3d 376, 381 n. 3 (3d Cir.1994), addressing the federal counterpart to Ala. R. Civ. P. 54(b) (“[Fed. R.Civ.P.] 54(b) may be used to grant final judgment status over a declaratory judgment action which is part of a multi-claim litigation, so long as the declaratory judgment aspect of the litigation has in fact been brought to final judgment. See, e.g., Heasley v. Belden & Blake Corp., 2 F.3d 1249, 1253 n. 4 (3d Cir.1993); Granite State Ins. Co. v. Degerlia, 925 F.2d 189, 191 (7th Cir.1991); Horn v. Transcon Lines, Inc., 898 F.2d 589, 594 (7th Cir. 1990). Thus, the term ‘claim’ as used in Rule 54(b) must be construed broadly so as to include declaratory judgment actions.” (emphasis added)). Therefore, the trial court’s attempted Rule 54(b) certification of its partial summary judgment resolving issues that did not finally conclude Alfa’s declaratory-judgment action was not effective to create a final and ap-pealable judgment. Because this appeal is from a nonfinal judgment, we cannot address the issues presented, and the appeal -must be dismissed.

Case no. 106183j

The Bones appeal from the denial of their motion for a summary judgment on the issue whether Townley was excluded from coverage under the “willful or malicious” acts exclusion of the policy. The Bones had argued in support of their motion that the “willful or malicious” acts exclusion was not applicable to exclude Townley from coverage because, they argued, there was no evidence to indicate that Townley intended to shoot David. This Court will not entertain the Bones’ attempted appeal of the denial of their motion for a summary judgment. “ ‘ “Such an order is inherently non-final and cannot be made final by a Rule 54(b), [Ala. R. Civ. P.,] certification.... An order denying summary judgment is interlocutory and nonappealable.” ’ ” Continental Cas. Co. v. SouthTrust Bank, N.A., 933 So.2d 337, 340 (Ala.2006) (quoting Fahey v. C.A.T.V. Subscriber Servs., Inc., 568 So.2d 1219, 1222 (Ala.1990), quoting in turn Parsons Steel, Inc. v. Beasley, 522 So.2d 253, 257-58 (Ala.1988)). Accordingly, because the Bones have attempted to cross-appeal from a nonappealable judgment, we must dismiss the cross-appeal.

Conclusion

We dismiss both Alfa’s appeal and the Bones’ cross-appeal as being from nonfinal judgments.

1061808 — APPEAL DISMISSED.

COBB, C.J., and LYONS, WOODALL, STUART, SMITH, and PARKER, JJ., concur.

MURDOCK, J., concurs specially.

1061834 — APPEAL DISMISSED.

COBB, C.J., and LYONS, WOODALL, STUART, SMITH, PARKER, and MURDOCK, JJ., concur.

MURDOCK, Justice

(concurring specially).

I concur specially in case no. 1061808; I concur in case no. 1061834.

As to case no. 1061808, I concur in the main opinion’s conclusion that, because the issue whether the shooting was the result of a “willful or malicious” act is still awaiting determination, the trial court’s summary judgment did not completely dispose of Alfa’s claim. Even if the trial court, for purposes of the summary-judgment motion filed by the Bones, were to make a determination as to whether the shooting was the result of a “willful or malicious” act, and thereupon grant the Bones’ motion for a summary judgment as to the question of Alfa’s liability, I question whether that judgment would be appropriate for certification as a final judgment under Rule 54(b), Ala. R. Civ. P. The issues involved in such a judgment would in many respects be the same as those yet to be adjudicated between the Bones, on the one hand, and Waters and Townley, on the other, and the risk of inconsistent results remains. Indeed, any final determination as to whether Alfa will be liable monetarily to the Bones will still depend on whether Waters and Townley are found liable to the Bones on the underlying tort claim, something not yet determined. As this Court stated in Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373, 1374 (Ala.1987):

“ ‘Rule 54(b) certifications should be granted only in exceptional cases .... ’
“The facts in this ease ... do not present the type of situation that Rule 54(b) was intended to cover. ... It ... appears that the issues in the ... claims in this case are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results. We must conclude, therefore, that in the interest of justice, the claims should not be adjudicated separately.”

      . On September 12, 2007, the Bones moved the trial court to sever and/or bifurcate Alfa’s complaint in intervention; Alfa opposed the Bones' motion to sever and/or bifurcate. It does not appear that the trial court ruled on this motion.


author: SEE, Justice. MURDOCK, J.,

text:
    Sherry Gay HEREFORD, individually and as mother and next friend of Alyssa Hereford, her minor daughter v. D.R. HORTON, INC.
    1070396.
    Supreme Court of Alabama.
    Jan. 9, 2009.

      William Eugene Rutledge of Rutledge & Yaghmai, Birmingham, for appellant.
    D. Christopher Carson and Jason R. Bushby of Burr & Forman, LLP, Birmingham, for appellee.
   On Application for Rehearing

SEE, Justice.

The opinion of September 5, 2008, is withdrawn, and the following opinion is substituted therefor.

Sherry. Gay Hereford, individually and as mother and next friend of Alyssa Hereford, her minor daughter, appeals from a judgment of the Shelby Circuit Court, affirming a summary judgment entered by the arbitrator in favor of D.R. Horton, Inc. (hereinafter “Horton”). We affirm.

Facts and Procedural History

On January 6, 2003, Sherry Gay Hereford entered into a real-estate contract with Horton for the purchase of a newly constructed house that Horton had built. The contract included a one-year limited warranty that provided that Horton was responsible for repairing any latent defects in the house. The limited warranty expressly disclaimed all other warranties, whether express or implied, and provided that the limited warranty excluded recovery for “[incidental, consequential, or secondary damages caused by a breach of this warranty.” The limited warranty also contained an arbitration clause that provided that any dispute arising under the limited warranty shall be submitted to arbitration in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq.

Several months after the Herefords moved into the house, they discovered water damage in the third bedroom of the house. Hereford notified Horton of the damage, and a representative of Horton went to the house to investigate the cause of the water damage. Horton learned that the water damage was being caused by leakage from a condensation drain pipe for the heating, ventilation, and air-conditioning (“HVAC”) system, which had become separated at one of its joints. Horton repaired the separation in the pipe joint, removed and replaced the damaged carpet, baseboards, insulation, and sheet rock in the bedroom, and sprayed the affected areas with a bleach-detergent solution. Horton planned to make further repairs to the bedroom; however, a dispute arose between Hereford and Horton regarding the extent of the repairs, and Hereford refused to allow Horton to make any further repairs to the house unless Horton agreed to meet Hereford’s specific demands regarding the repairs.

Hereford hired Michael Ridge, a certified industrial hygienist, to inspect the house and to determine what measures were necessary to repair the damage caused by the leak in the HVA.C pipe. The report prepared by Ridge recommended treating the entire house for mold. Specifically, Ridge’s report recommended that the third bedroom should be enclosed with a barrier maintained with a high-efficiency particulate-air filtration system to prevent the spread of mold while the third bedroom was being treated. The report further advised that all the carpet and padding should be removed from the house, that the entire house should be cleaned, and that the contents of the house should be removed and stored during the repairs and treatment for mold. Concerned about the possible health hazards caused by exposure to mold, the Herefords moved out of the house.and into a furnished apartment.

Hereford filed a claim under her homeowner’s insurance policy with Alfa Insurance Company (“Alfa”), requesting that Alfa pay for the remediation of the Herefords’ house and for the rental of the apartment. Alfa agreed to Hereford’s requests and hired Pro-Care Complete Restoration Services, Inc., a professional remediation firm, to treat and repair the Herefords’ house. Alfa paid over $20,000 for the services performed by Pro-Care. The Herefords moved back into their house after Pro-Care finished treating the house for mold and made the necessary repairs.

On February 27, 2004, Hereford sued Horton, claiming that Horton had breached the limited warranty by failing to repair the damage caused by the leak in the unattached HVAC pipe. Horton moved the trial court to dismiss Hereford’s action or, in the alternative, to stay the proceedings and compel arbitration under 9 U.S.C § 1 et seq., the Federal Arbitration Act. Before the trial court ruled on Horton’s motion, counsel for Horton notified the trial court that both sides had agreed to enter into settlement negotiations and, in the event that settlement negotiations were unsuccessful, to submit the dispute to a mutually agreeable form of binding arbitration. Thereafter, the trial court placed this case on the administrative docket pending a settlement or resolution of the dispute by an arbitrator.

The settlement negotiations between Hereford and Horton were unsuccessful, and the dispute was submitted to arbitration. On August 18, 2006, Horton moved the arbitrator for a summary judgment, arguing that it had not breached the limited warranty or, alternatively, that even if it had breached the limited warranty, it was not liable for that breach because, it argued, the damages sought by Hereford were only consequential damages, the recovery of which was barred by the limited warranty. Hereford responded to Horton’s summary-judgment motion, arguing that the provision in the limited warranty excluding the recovery of consequential damages was not enforceable because, she argued, the limited warranty had failed to meet its essential purpose. The arbitrator entered a summary judgment in favor of Horton and dismissed Hereford’s complaint, finding that Hereford could not prevail on her breach-of-warranty claim because Hereford’s damages either were covered by her homeowner’s insurance policy or were excluded under the limited warranty as consequential damages.

Hereford appealed the arbitrator’s decision to the Shelby Circuit Court, and Horton moved that court to confirm the arbitrator’s decision. The trial court determined that the arbitrator’s decision was due to be confirmed, and it entered an order in accordance with that finding. Hereford now appeals.

Standard of Review

In R.P. Industries, Inc. v. S & M Equipment Co., 896 So.2d 460 (2004), this Court reviewed the trial court’s order granting a motion to confirm an arbitration award and denying the opposing party’s motion to vacate that award. We stated:

“ ‘Where parties, as in this case, have agreed that disputes should go to arbitration, the role of the courts in reviewing the arbitration award is limited. Transit Casualty Co. v. Trenwick Reinsurance Co., 659 F.Supp. 1346 (S.D.N.Y. 1987), affirmed, 841 F.2d 1117 (2d Cir. 1988); Saxis Steamship Co. v. Multifacs International Traders, Inc., 375 F.2d 577 (2d Cir.1967). On motions to confirm or to vacate an award, it is not the function of courts to agree or disagree with the reasoning of the arbitrators. Application of States Marine Corp. of Delaware, 127 F.Supp. 943 (S.D.N.Y 1954). Courts are only to ascertain whether there exists one of the specific grounds for vacation of an award. Saxis Steamship Co. A court cannot set aside the arbitration award just because it disagrees with it; a policy allowing it to do so would undermine the federal policy of encouraging the settlement of disputes by arbitration. United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); Virgin Islands Nursing Association’s Bargaining Unit v. Schneider, 668 F.2d 221 (3d Cir.1981). An award should be vacated only where the party attacking the award clearly establishes one of the grounds specified [in 9 U.S.C. § 10]. Catz American Co. v. Pearl Grange Fruit Exchange, Inc., 292 F.Supp. 549 (S.D.N.Y.1968).’ ”

896 So.2d at 464 (quoting Maxus, Inc. v. Sciacca, 598 So.2d 1376, 1380-81 (Ala. 1992)). The standard by which an appellate court reviews a trial court’s order confirming an arbitration award under the Federal Arbitration Act is that questions of law are reviewed de novo and findings of fact are reviewed only for clear error. See Riccard v. Prudential Ins. Co., 307 F.3d 1277, 1289 (11th Cir.2002).

Analysis

Hereford asks this Court to reverse the trial court’s judgment affirming the arbitrator’s decision and to vacate the arbitrator’s decision because, she argues, the arbitrator manifestly disregarded the law in entering a summary judgment in favor of Horton. Before we can reach that question, however, we must determine whether, in light of the United States Supreme Court’s recent decision in Hall Street Associates, L.L.C. v. Mattel, Inc., 552 U.S. 576, 128 S.Ct. 1396, 170 L.Ed.2d 254 (2008), manifest disregard of the law remains a basis for obtaining relief from an arbitrator’s award under the Federal Arbitration Act.

The Federal Arbitration Act, 9 U.S.C. § 2, provides, in pertinent part: “A written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” “Section 2 has the effect of preempting conflicting Alabama law, in particular § 8-1-41(3), Ala.Code 1975, which makes predispute agreements to arbitrate unenforceable.” Title Max of Birmingham, Inc. v. Edwards, 973 So.2d 1050, 1053 (Ala.2007) (citing Garikes, Wilson, & Atkinson, Inc. v. Episcopal Found. of Jefferson County, Inc., 614 So.2d 447, 448 (Ala.1993)). Therefore, in Alabama, predispute arbitration provisions are enforceable so long as the party moving to compel arbitration proves “the existence of a contract calling for arbitration and ... that that contract evidences a transaction involving interstate commerce.” Title Max of Birmingham, 973 So.2d at 1052 (citing Polaris Sales, Inc. v. Heritage Imports, Inc., 879 So.2d 1129, 1132 (Ala. 2003)).

As a preliminary matter, we first address whether the arbitration agreement between Hereford and Horton was governed by the Federal Arbitration Act. The limited warranty states that arbitration would be “governed by the procedures of the Federal Arbitration Act, 9 U.S.C. 1 et seq.” Moreover, in its motion to compel arbitration, Horton specifically invoked the “Federal Arbitration Act” and moved the trial court to stay all proceedings and to compel Hereford to arbitrate her breach-of-warranty claim against Horton. The parties agreed that Hereford’s purchase of the house was a transaction that involved interstate commerce; the real-estate sales contract expressly provides that “[t]he Seller and Buyer acknowledge that this Agreement necessarily involves interstate commerce by virtue of the materials and components contained in the dwelling.” Therefore, we hold that the arbitration proceedings in this case were governed by the Federal Arbitration Act.

Having determined that the arbitration in this case was conducted pursuant to the Federal Arbitration Act, we must now address whether manifest disregard of the law is a valid ground for obtaining relief from an arbitrator’s decision under the Federal Arbitration Act. “ ‘In cases governed by the [Federal Arbitration Act], the federal substantive law of arbitration governs, despite contrary state law or policy.’ ” Birmingham News Co. v. Horn, 901 So.2d 27, 44 (Ala.2004) (quoting Maxus, Inc., 598 So.2d at 1379), overruled on other grounds by Horton Homes, Inc. v. Shaner, 999 So.2d 462 (Ala.2008). The Supreme Court of the United States has stated that the Federal Arbitration Act “ ‘create[s] a body of federal substantive law,’” which is “‘applicable in state and federal courts.’ ” Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 445, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006) (quoting Southland Corp. v. Keating, 465 U.S. 1, 12, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984)).

Under § 10 of the Federal Arbitration Act, a party is entitled to have an arbitrator’s award vacated upon a showing of one of the following four grounds:

“(1) where the award was procured by corruption, fraud, or undue means;
“(2) where there was evident partiality or corruption in the arbitrators, or either of them;
“(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or
“(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter was not made.”

9 U.S.C. § 10(a).

In Birmingham News, we noted that the four grounds listed in 9 U.S.C. § 10(a) for vacating an arbitrator’s award had been adopted by this Court as “applicable to an appeal of an arbitration award in this state.” 901 So.2d at 46. This Court then adopted a fifth ground that could serve as an independent basis for vacating an arbitrator’s award, namely, “manifest disregard of the law.” 901 So.2d at 50. Recognition of manifest disregard of the law as a nonstatutory ground for vacating an arbitrator’s award originated in a statement made by the Supreme Court of the United States in Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953). In that case, the Supreme Court remarked that the “[pjower to vacate an award is limited,” but it went on to state that “[i]n unrestricted submission, such as the present margin agreements envisage, the interpretations of the law by the arbitrators in contrast to manifest disregard [of the law] are not subject, in the federal courts, to judicial review for error in interpretation.” 346 U.S. at 436-37, 74 S.Ct. 182. As we noted in Birmingham News, all the federal courts of appeals and a majority of state appellate courts, including this Court in Birmingham News, thereafter adopted manifest disregard of the law as a fifth ground for vacating an arbitration award. 901 So.2d at 48-50.

In March of last year, the Supreme Court of the United States, in Hall Street Associates, L.L.C. v. Mattel, Inc., supra, rejected the conclusion that it had adopted manifest disregard of the law as an additional, nonstatutory ground for relief from an arbitrator’s decision. The Supreme Court stated that such a reading was “too much for Wilko to bear” and that the text of the Federal Arbitration Act “compels a reading of the § 10 and § 11 categories [of relief] as exclusive.” 552 U.S. at-, 128 S.Ct. at 1404. Under the Supreme Court’s decision in Hall Street Associates, therefore, manifest disregard of the law is no longer an independent and proper basis under the Federal Arbitration Act for vacating, modifying, or correcting an arbitrator’s award. In light of the fact that the Federal Arbitration Act is federal law, and in light of the Supremacy Clause of the Constitution of the United States, Art. VI, we hereby overrule our earlier statement in Birmingham News that manifest disregard of the law is a ground for vacating, modifying, or correcting an arbitrator’s award under the Federal Arbitration Act, and we also overrule any such language in our other cases construing federal arbitration law.

Hereford has raised manifest disregard of the law as the only ground on which she seeks to have the arbitrator’s award vacated. Because manifest disregard of the law, by itself, is not a valid ground for relief from the arbitrator’s award and because Hereford has not argued that this Court should vacate the decision of the arbitrator on any of the grounds specified in § 10(a) of the Federal Arbitration Act, she has not demonstrated that she is entitled to relief from the trial court’s decision confirming the arbitrator’s decision.

Conclusion

Because manifest disregard of the law is not a proper ground under the Federal Arbitration Act for vacating, modifying, or correcting an arbitrator’s decision, Hereford has not demonstrated any error by the trial court. Therefore, we affirm the judgment of the trial court confirming the arbitrator’s decision in favor of Horton.

APPLICATION OVERRULED; OPINION OF SEPTEMBER 5, 2008, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

COBB, C.J., and LYONS, WOODALL, STUART, SMITH, BOLIN, and PARKER, JJ., concur.

MURDOCK, J.,

concurs in overruling the application for rehearing and concurs in the result as to the opinion.

      . The Supreme Court noted that the use of the phrase “manifest disregard” in Wilko was particularly vague and that it could have had several possible meanings. The Court surmised that the use of the phrase "manifest disregard,” instead of intending to create "a new ground for review,” may merely have "referred to the § 10 grounds collectively, rather than adding to them.... Or, as some courts have thought, ‘manifest disregard' may have been shorthand for § 10(a)(3) or § 10(a)(4), authorizing vacatur when the arbitrators were 'guilty of misconduct’ or 'exceeded their powers.’ ” Hall Street Associates, 552 U.S. at-, 128 S.Ct. at 1404. Relying on these latter two possible meanings, some courts have held that “manifest disregard” survives as a judicial gloss on the specific grounds for vacatur listed in § 10 of the Federal Arbitration Act. See Stolt-Nielsen SA v. AnimalFeeds Int’l Corp., 548 F.3d 85, 94 (2d Cir.2008) (citing with approval decisions of other courts that have held that "manifest disregard” survives as a gloss on the § 10(a) grounds of the Federal Arbitration Act). We do not address whether manifest disregard of the law remains as a judicial gloss on the grounds specified in § 10(a) of the Federal Arbitration Act or is merely "shorthand for § 10(a)(3) or § 10(a)(4).” We simply note that by the express language of the Supreme Court of the United States the text of the Federal Arbitration Act "compels a reading of the § 10 and § 11 categories [of relief] as exclusive.” 552 U.S. at -, 128 S.Ct. at 1404.


author: PITTMAN, Judge.

text:
    John P. MORGAN and Darlene K. Morgan v. SAFEWAY INSURANCE COMPANY OF ALABAMA, INC.
    2060138.
    Court of Civil Appeals of Alabama.
    June 29, 2007.

      Alan M. Colvin of Clay, Massey & Associates, P.C., Mobile, for appellants.
    Walter G. (Stoney) Chavers of Fleming & Chavers, Mobile, for appellee.
   PITTMAN, Judge.

This appeal concerns an insurer’s right to deny a claim for underinsured-motorist (“UIM”) insurance benefits on the basis that the insurer did not consent to its insureds’ settlement of their claim against the alleged tortfeasor.

In January 2006, John P. Morgan ánd Darlene K. Morgan (“the insureds”) brought an action against their insurer, Safeway Insurance Company of Alabama, Inc. (“Safeway”), alleging that an underin-sured motorist had negligently caused or allowed a motor vehicle to collide with a vehicle they were occupying and that, as a result, the insureds had suffered permanent injuries; that the insureds had notified Safeway of the pendency of an action against the underinsured motorist and had later made a claim for UIM benefits under the Safeway insurance policy issued to them; and that Safeway had denied their UIM insurance claim. The insureds averred that Safeway had breached the policy by failing to pay the claim, and they further averred that Safeway had tortiously acted in bad faith in denying that claim. Safeway admitted in its answer that the insureds had asserted a claim for UIM benefits, but Safeway otherwise denied the insureds’ allegations.

In March 2006, the insureds filed a motion for a partial summary judgment concerning the issue of Safeway’s contractual liability that was based upon the pleadings and an affidavit of their attorney. In that affidavit, the attorney testified that he had notified counsel for Safeway of the pen-dency of the insureds’ action against the alleged tortfeasor; photocopies of correspondence attached to the affidavit indicate that Safeway’s counsel requested in May 2005, and was sent in June 2005, copies of the pleadings in that action. The attorney further testified that Safeway did not intervene in the insureds’ action while it was pending. According to the insureds’ attorney’s affidavit, he notified counsel for Safeway on October 17, 2005, that the alleged tortfeasor’s liability insurer had agreed to pay the monetary limits of coverage under its policy of insurance, and he “presented a demand for additional sums” to Safeway at that time. The insureds’ attorney testified that on October 27, 2005, 10 days later, the sum of $20,000 was paid to the insureds on behalf of the alleged tortfeasor in consideration of the dismissal of their tort action; a copy of a subsequent letter from Safeway’s counsel that was attached to the insureds’ attorney’s affidavit demonstrates that Safeway declined to pay UIM benefits to the insureds because Safeway had not consented to the insureds’ settlement.

In response, Safeway sought a summary judgment in its favor as to all the insureds’ claims; that motion was supported by an affidavit of Safeway’s assistant claims manager and by other materials, including copies of the pertinent Safeway insurance policy (which excluded UIM coverage for any person “[i]f that person or the legal representative settles the bodily injury claim without notice to us and our consent”) and written correspondence between the insureds’ attorney and counsel for Safeway concerning the insureds’ action against the alleged tortfeasor and their UIM claim. The parties filed briefs in support of their positions, and the trial court, after a hearing, denied the insureds’ motion, granted Safeway’s motion, and entered a summary judgment in favor of Safeway. The Alabama Supreme Court transferred the insureds’ appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

After the Alabama Legislature had amended § 32 — 7—23(b)(4), Ala.Code 1975, in 1984 so as to include UIM coverage within the classes of coverages that generally must be afforded to insureds under automobile-liability insurance policies delivered or issued for delivery within Alabama, the Alabama Supreme Court recognized that UIM coverage amounted to “umbrella coverage” as to which an insurer would have a right of subrogation “for sums paid ... in excess of the tortfeasor’s limits of liability.” Hardy v. Progressive Ins. Co., 531 So.2d 885, 887 (Ala.1988). Building upon its acknowledgment in Hardy that “some courts ha[d] fashioned a procedure to release an insured victim from the twilight zone that he is placed in between underinsured coverage and an insurer’s right to subrogation” (id.), the Alabama Supreme Court proceeded to join those courts in Lambert v. State Farm Mutual Automobile Insurance Co., 576 So.2d 160 (Ala. 1991). The Alabama Supreme Court in Lambert provided a “road map” that comprises six general rules that govern “every case in which the rights of the insured and the underinsured motorist carrier may conflict”:

“(1) The insured, or the insured’s counsel, should give notice to the under-insured motorist insurance carrier of the claim under the policy for underinsurance benefits as soon as it appears that the insured’s damages may exceed the tortfeasor’s limits of liability coverage.
“(2) If the tort-feasor’s liability insurance carrier and the insured enter into negotiations that ultimately lead to a proposed compromise or settlement of the insured’s claim against the tort-fea-sor, and if the settlement would release the tort-feasor from all liability, then the insured, before agreeing to the settlement, should immediately notify the underinsured motorist insurance carrier of the proposed settlement and the terms of any proposed release.
“(3) At the time the insured informs the underinsured motorist insurance carrier of the tort-feasor’s intent to settle, the insured should also inform the carrier as to whether the insured will seek underinsured motorist benefits in addition to the benefits payable under the settlement proposal, so that the carrier can determine whether it will refuse to consent to the settlement, will waive its right of subrogation against the tort-feasor, or will deny any obligation to pay underinsured motorist benefits. If the insured gives the underinsured motorist insurance carrier notice of the claim for underinsured motorist benefits, as may be provided for in the policy, the carrier should immediately begin investigating the claim, should conclude such investigation within a reasonable time, and should notify its insured of the action it proposes with regard to the claim for underinsured motorist benefits.
“(4) The insured should not settle with the tort-feasor without first allowing the underinsured motorist insurance carrier a reasonable time within which to investigate the insured’s claim and to notify its insured of its proposed action.
“(5) If the uninsured motorist insurance carrier refuses to consent to a settlement by its insured with the tortfea-sor, or if the carrier denies the claim of its insured without a good faith investigation into its merits, or if the carrier does not conduct its investigation in a reasonable time, the carrier would, by any of those actions, waive any right to subrogation against the tort-feasor or the tortfeasor’s insurer.
“(6) If the underinsured motorist insurance carrier wants to protect its sub-rogation rights, it must, within a reasonable time, and, in any event before the tort-feasor is released by the carrier’s insured, advance to its insured an amount equal to the tort-feasor’s settlement offer.”

576 So.2d at 167 (emphasis added).

In this case, the insureds’ attorney sent a letter to counsel for Safeway on October 17, 2005, indicating that an offer of the alleged tortfeasor’s automobile-liability policy limits had been made and requesting that Safeway pay its monetary limits of UIM coverage. The medical records and bills supplied with that letter were forwarded by Safeway’s counsel to Safeway on October 18, 2005. On October 27, 2005, the insureds entered into an agreement releasing the alleged tortfeasor from liability in consideration of a payment equaling the monetary limits of the tortfeasor’s automobile-liability policy. In total, 10 days elapsed from the insureds’ notification to Safeway of the imminence of the policy-limits settlement and the insureds’ release of the alleged tortfeasor.

In Lambert, our Supreme Court stated that a settlement should not take place without a UIM carrier having a “reasonable time” within which to investigate and act on an insured’s UIM claim. Although the insureds, at the request of counsel for Safeway in May 2005, did forward in June 2005 the pleadings in their action against the alleged tortfeasor, there is no indication from the correspondence between the two attorneys that the insureds did more at that time than indicate the possibility of a UIM claim, and we cannot accept the insureds’ position that the June 2005 correspondence amounts to “notice of the claim for underinsured motorist benefits” triggering a duty to investigate. As the Alabama Supreme Court stated in Allstate Insurance Co. v. Beavers, 611 So.2d 348, 352 (Ala.1992), in rejecting a similar contention, “it is the notice of the proposed settlement that legally, and logically, requires action within a reasonable time by the underinsured motorist insurance carrier” under Lambert.

Although the Alabama Supreme Court in Lambert did not conclusively establish a particular period of time as “reasonable,” it cited statutes from North Carolina and Florida setting forth a 30-day period within which a UIM carrier may consider whether to consent to a proposed settlement between its insured and an alleged tortfeasor. 576 So.2d at 166 n. 4. Moreover, at least 10 other states have adopted statutes establishing procedures similar to those outlined in Lambert providing for either a 30-day or a 60-day window in this context. See Granger v. Government Employees Ins. Co., 111 Haw. 160, 167-68, 140 P.3d 393, 400-01 (2006) (collecting authorities). Finally, the Alabama Supreme Court in Hardy, supra, cited with approval Schmidt v. Clothier, 338 N.W.2d 256 (Minn.1983), an opinion holding that a 30-day period after the provision of written notice of a settlement agreement was a reasonable time. Hardy, 531 So.2d at 887, 888. We thus find ourselves in agreement with the statement in a leading treatise on Alabama automobile-insurance law that “[although the [Alabama] cases do not define a ‘reasonable’ period of time, 30 days would seem to be a ‘reasonable’ period of time absent some compelling circumstances.” Ronald G. Davenport, Alabama Automobile Insurance Law § 33:12 (3d ed.2002).

Proceeding from those' authorities, we can discern that Lambert does not countenance an insured’s allowing a UIM insurer no more than 10 days after giving notice of a potential settlement and UIM claim within which to investigate and to take any appropriate action on the claim before executing a settlement agreement releasing the alleged tortfeasor. Our conclusion is only strengthened by reference to Brant-ley v. State Farm Mutual Automobile Insurance Co., 586 So.2d 184 (Ala.1991), in which the Alabama Supreme Court held that affording a UIM carrier 10 days’ notice before releasing a tortfeasor as to whom the UIM carrier might have had subrogation rights did not give that carrier an adequate opportunity under Lambert to protect those rights. We therefore agree with Safeway that the insureds in this case did not comply with the “reasonable time” standard of Lambert such that Safeway can properly be deemed to have waived its rights under its policy to consent to or object to the proposed settlement. Because Safeway did not waive, and was not estopped from asserting, its authority to determine whether to consent to the proposed settlement in this case, the failure of the insureds to obtain Safeway’s consent barred their claim for UIM benefits, and the trial court correctly entered the summary judgment in favor of Safeway.

AFFIRMED.

BRYAN, THOMAS, and MOORE, JJ., concur.

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

      . Southern Guaranty Insurance Co. v. Welch, 570 So.2d 654 (Ala.1990), which predated Lambert and which was cited by the insureds in their principal brief, is not to the contrary; in that case, 18 days’ notice to the UIM carrier of a proposed settlement and release was afforded.


author: MURDOCK, Justice.

text:
    Ex parte John P. MORGAN and Darlene K. Morgan. (In re John P. Morgan and Darlene K. Morgan v. Safeway Insurance Company of Alabama, Inc.).
    1061470.
    Supreme Court of Alabama.
    Jan. 30, 2009.

      R. Edward Massey of Clay, Massey & Associates, P.C., Mobile, for petitioner.
    Walter G. (Stoney) Chavers of Fleming & Chavers, L.L.P., Mobile, for respondent.
   MURDOCK, Justice.

John P. Morgan and Darlene K. Morgan appealed from a summary judgment in favor of Safeway Insurance Company of Alabama, Inc. (“Safeway”), denying the Morgans’ underinsured-motorist (“UIM”) insurance claims against Safeway on the ground that the Morgans failed to obtain Safeway’s consent before settling their action against the underinsured motorist. The Alabama Court of Civil Appeals affirmed the trial court’s judgment on the ground that the Morgans failed to give Safeway reasonable notice of their intent to settle the underlying action, Morgan v. Safeway Insurance Co. of Alabama, 13 So.3d 381 (Ala.Civ.App.2007).

In February 2004, the Morgans were injured when their vehicle collided with a vehicle driven by Suzanne Sheffield. The Morgans were insured under an insurance policy with Safeway that included UIM coverage. The Morgans sued Sheffield seeking damages for the injuries they sustained in the collision. In May and June 2005, the Morgans’ counsel communicated with Safeway and its counsel concerning the Morgans’ claims; he advised Safeway’s counsel that he anticipated that the UIM coverage would be at issue.

On June 1, 2005, the Morgans’ counsel forwarded to Safeway’s counsel copies of the pleadings in the action against Sheffield. On that same day, Safeway sent a letter to its counsel stating that the Morgans’ counsel “has a ways to go before getting to us.” The Morgans did not join Safeway as a party to their action against Sheffield, and Safeway did not elect to join that action. Following these initial communications with Safeway, the Morgans began conducting discovery in their action against Sheffield.

On October 17, 2005, the Morgans’ counsel notified Safeway’s counsel by letter of the fact of a proposed settlement. The letter advised Safeway that Sheffield’s insurer had offered to pay its policy limits, $20,000 per person; the letter did not state any other terms of the proposed settlement. The letter made a demand on Safeway for payment of unspecified additional sums under the UIM portion of the policy. Delivered to Safeway’s counsel with the notice were copies of the Morgans’ medical records. This was the first time the Morgans provided Safeway these records, which addressed unrelated preexisting conditions and ailments, including, but not limited to, bipolar disorder, post-traumatic stress syndrome, surgeries, and degenerative disk disease. The October 17 letter to Safeway did not set forth a proposed date for executing the settlement with Sheffield, a deadline or target date by which Safeway should respond to the letter, or any suggestion that time was of the essence.

Safeway’s counsel promptly informed Safeway that a settlement had been proposed and forwarded to Safeway copies of the Morgans’ medical records. By letter dated October 18, 2005, Safeway’s counsel informed the Morgans’ counsel that he expected a response within “the next few days.” On October 21, 2005, Safeway informed its counsel that it wanted to take the depositions of some doctors referenced in the Morgans’ medical records; Safeway’s counsel did not inform the Morgans’ counsel of this desire.

On October 27, 2005, the Morgans accepted the settlement offer and executed a general release. There apparently was no communication between Safeway (or its counsel) and the Morgans’ counsel between October 18, 2005, and October 27, 2005. On November 2, 2005, the Morgans and Sheffield filed a joint stipulation resulting in the dismissal of the action against Sheffield. Safeway learned about the completed settlement in November 2005 by monitoring the filings in the Baldwin Circuit clerk’s office.

On January 11, 2006, Safeway denied the Morgans’ UIM claims, asserting that the Morgans had violated a policy provision requiring Safeway’s consent to any settlement of the underlying claim against the underinsured motorist. In February 2006, the Morgans filed the present action against Safeway, alleging breach of contract and bad-faith denial of their UIM claims. In March 2006, the Morgans filed a motion for a partial summary judgment on the issue of Safeway’s contractual liability. In response, Safeway filed a motion for a summary judgment in its favor as to all the Morgans’ claims, asserting that the Morgans had waived their right to recover UIM benefits because (1) they failed to obtain Safeway’s consent to the settlement, (2) they failed to provide adequate information as to the terms of the settlement, and (3) they failed to give Safeway a reasonable opportunity to respond to the proposed settlement.

On June 7, 2006, the trial court entered an order denying the Morgans’ motion for a summary judgment and granting Safeway’s motion for a summary judgment. The trial court determined that the Morgans were not entitled to recover UIM benefits from Safeway because their notice of the proposed settlement did not satisfy the requirements set forth in Lambert v. State Farm Mutual Automobile Insurance Co., 576 So.2d 160 (Ala.1991). Specifically, the trial court concluded

“that while [the Morgans] provided notice of claim to Safeway, there is no evidence of consent. The documents provided by [the Morgans] to Safeway did not include the proposed release; disclose the terms of the release; request Safeway’s consent; or offer Safeway an opportunity to review or participate in the settlement.”

The trial court did not specifically address the issue whether 10 days’ notice was sufficient under the facts of this case. The Morgans appealed to this Court, which transferred the case to the Alabama Court of Civil Appeals pursuant to Ala.Code 1975, § 12-2-7(6).

The Court of Civil Appeals affirmed the judgment. That court concluded that the Morgans failed to comply with the “reasonable time” standard established in Lambert because they settled their claims against the alleged tortfeasor after giving Safeway “no more than 10 days[’] ... notice of a potential settlement and UIM claim.” Morgan, 13 So.3d at 385. The court also stated that, absent “compelling circumstances,” 30 days was a reasonable time for a response by a UIM carrier. 13 So.3d at 385.

In Lowe v. Nationwide Insurance Co., 521 So.2d 1309, 1310 (Ala.1988), this Court established a process for balancing the rights of the UIM insurer and its insured by (1) requiring that the UIM insurer be notified of, or joined as a party in, the action against the alleged tortfeasor and (2) allowing the UIM carrier to elect whether to participate in that action. Regardless of whether it elects to participate, the UIM insurer would be bound by the determination of the fact-finder as to liability and damages. Lowe did not address any issues regarding a proposed settlement between the UIM insured and the alleged tortfeasor.

Settlements and the UIM carrier’s sub-rogation rights were addressed by this Court in Lambert, which provided a “road map” governing settlements of the underlying action between the insured and the alleged tortfeasor in cases involving a UIM carrier. Lambert requires that, where benefits are contractually conditioned upon the insurer’s consent to a settlement between the insured and the alleged tortfea-sor, the settlement should not take place until the UIM carrier has been given notice of the settlement and has had a reasonable time to investigate and to act on an insured’s UIM claim. The Lambert Court noted that the purpose of the guidelines that it articulated

“is to protect the underinsured motorist insurance carrier’s subrogation rights against the tort-feasor, as well as to protect the carrier against the possibility of collusion between its insured and the tortfeasor’s liability insurer at the carrier’s expense.”

576 So.2d at 167.

The Lambert guidelines are as follows:

“(1) The insured, or the insured’s counsel, should give notice to the under-insured motorist insurance carrier of the claim under the policy for underinsurance benefits as soon as it appears that the insured’s damages may exceed the tortfeasor’s limits of liability coverage.
“(2) ... [I]f the settlement would release the tort-feasor from all liability, then the insured ... should immediately notify the underinsured motorist insurance carrier of the proposed settlement and the terms of any proposed release.
“(3) ... If the insured gives the un-derinsured motorist insurance carrier notice of the claim for underinsured motorist benefits, ... the carrier should immediately begin investigating the claim, [and] should conclude such investigation within a reasonable time
“(4) The insured should not settle with the tort-feasor without first allowing the underinsured motorist insur- anee carrier a reasonable time within which to investigate the insured’s claim and to notify its insured of its proposed action.
“(5) If the uninsured motorist insurance carrier refuses to consent to a settlement by its insured with the tortfea-sor, or if the carrier denies the claim of its insured without a good faith investigation into its merits, or if the carrier does not conduct its investigation in a reasonable time, the carrier would, by any of those actions, waive any right to subrogation against the tort-feasor or the tortfeasor’s insurer.
“(6) If the underinsured motorist insurance carrier wants to protect its sub-rogation rights, it must, within a reasonable time, and, in any event before the tort-feasor is released by the carrier’s insured, advance to its insured an amount equal to the tort-feasor’s settlement offer.”

576 So.2d at 167 (emphasis added).

The only issue before us in the present case is whether Safeway should be deemed to have waived its right to consent to, or to object to, the proposed settlement between the Morgans and Sheffield by not responding to the Morgans’ claims for UIM benefits during the 10-day period from October 17, 2005, when that claim was made, to October 27, 2005, when the settlement was consummated. In Allstate Insurance Co. v. Beavers, 611 So.2d 348, 352 (Ala.1992), this Court held that, in the ordinary case, the relevant notice is not notice of the action against the alleged tortfeasor, but notice of the intent to settle that action and to pursue the UIM coverage for additional damages. The facts of the present case do not present an exception to the principle set forth in Beavers, and we therefore conclude that the notice period began on October 17, 2005, when the Morgans’ counsel notified Safeway’s counsel of the proposed settlement.

As noted in Lambert, the reasonableness of the notice to the UIM insurer depends on the particular facts and circumstances of each case. Lambert, 576 So.2d at 167 (a notice “must take into consideration the facts and circumstances of each individual case”). In their briefs to this Court, the parties do not focus in particular on the question whether, as a general rule, 30 days (or any other period) should be established as a presumptively reasonable time for an insurer to respond to a claim for UIM benefits. Nor is it necessary for our decision today to address this issue; we therefore decline for purposes of this case to adopt the holding of the Court of Civil Appeals as to this issue. The issue the parties do emphasize in their briefs, and the one we do decide, is whether, under the particular circumstances of this case, Safeway should be deemed to have waived its right to object to the proposed settlement by virtue of not doing so during the 10-day period between October 17, when Safeway was notified that Sheffield had made a settlement offer, and October 27, when the Morgans accepted that offer. We conclude that it should not.

We first note that the October 17 letter did not request a response by any particular date. Nothing in the record suggests that there was any reason, such as an approaching trial, that impelled the Morgans to consummate the settlement or to remove a contingency such as the UIM insurer’s approval, by October 27, or by any other specific date. Even if such a reason had existed, it was not communicated to Safeway so that it would know of the need to respond accordingly. Second, the Morgans knew that Safeway intended to make a decision “within a few days,” but they failed to follow up when they did not receive a response. Third, accompanying the October 17 claim for UIM benefits, for the first time, were copies of various medical records of the Morgans disclosing conditions and ailments unrelated to the automobile collision that apparently raised issues as to liability, the amount of damages, and causation.

Based on the foregoing, and considering the principles set forth in Lambert, we agree with the Court of Civil Appeals that Safeway should not be deemed to have waived its rights under its policy to consent to or object to the proposed settlement. Accordingly, as the Court of Civil Appeals concluded, “the failure of the insureds to obtain Safeway’s consent barred their claim for UIM benefits, and the trial court correctly entered the summary judgment in favor of Safeway.” 13 So.3d at 385. Therefore, we affirm the judgment of the Court of Civil Appeals.

AFFIRMED.

COBB, C.J., and WOODALL, STUART, PARKER, and SHAW, JJ., concur.

LYONS, SMITH, and BOLIN, JJ., concur in the result.

      . The Morgans did not argue to the trial court, and do not argue to this Court, (1) that their failure to provide reasonable notice to Safeway was excusable, or (2) that Safeway did not show that it was prejudiced by that failure. See Overstreet v. Safeway Ins. Co. of Alabama, 740 So.2d 1053, 1060-61 (Ala. 1999) (Lyons, J., concurring in the rationale in part and concurring in the result).