author: THOMAS, Judge.

text:
    Charles YOUNG, Jr. v. SOUTHEAST ALABAMA MEDICAL CENTER.
    2111258.
    Court of Civil Appeals of Alabama.
    Feb. 8, 2013.

      Mark A. Overall of The Mark Overall Law Firm, Montgomery, for appellant.
    Ben C. Wilson, T. Grant Sexton, Jr., and Philip A Sellers II of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellee.
   THOMAS, Judge.

In 2008, Charles Young, Jr., sued Southeast Alabama Medical Center (“SAMC”), alleging that it had negligently maintained its premises, resulting in injury to Young when he slipped and fell on the premises. In April 2007, the trial court denied SAMC’s motion for a summary judgment. On January 19, 2011, the trial court entered an order stating its intent to dismiss the case pursuant to Rule 41(b), Ala. R. Civ. P., in 30 days “unless significant action filed.” No filings appear on the State Judicial Information System case-action summary between January 19 and February 24, 2011, when the trial court entered an order dismissing Young’s action.

On February 24, 2011, the same day the trial court dismissed the action, Young filed a postjudgment motion requesting that the trial court vacate its dismissal order. In that motion, Young asserted that he had filed a bankruptcy petition in October 2006. He alleged that, because of the pendency of the bankruptcy proceeding, he had not been permitted to pursue the action against SAMC until the bankruptcy court approved his doing so, which the bankruptcy court had not done. The trial court set the postjudgment motion for a hearing, after which the trial court denied the motion. No appeal was taken from the February 2011 dismissal order.

On May 10, 2011, Young filed, through new counsel, a Rule 60(b), Ala. R. Civ. P., motion, seeking to have the trial court set aside the February 2011 dismissal order. Although that motion did not rely on any specific subpart of Rule 60(b), the motion mentioned that Young’s former attorney had “committed malfeasance” in his handling of Young’s action, thus indicating that Young might be proceeding under either Rule 60(b)(1), which provides a basis for relief from a judgment on the grounds of “mistake, inadvertence, surprise, or excusable neglect,” or Rule 60(b)(6), which permits a trial court to set aside a judgment for “any other reason justifying relief.” SAMC filed a response to Young’s motion; Young filed a reply, and SAMC filed a supplemental response. After a hearing, the trial court denied the Rule 60(b) motion on July 29, 2011. Young did not appeal from the July 2011 order denying his Rule 60(b) motion.

Nearly a year later, on June 20, 2012, Young, through his third attorney, filed what he entitled “Motion to Reinstate and to Set for Trial.” The motion made no reference to Rule 60(b) or any other rule; however, because we construe a motion by its “essence” and not by its nomenclature, see Ex parte Mutual Sav. Life Ins. Co., 765 So.2d 649, 650 (Ala.1998) (stating that an appellate court “looks to the essence of a motion, not just to its title, to determine how the motion should be treated under our Rules of Civil Procedure”), we construe Young’s motion to be a Rule 60(b)(6) motion seeking to have the February 2011 dismissal order set aside because of his original attorney’s alleged neglect of the action. SAMC responded to Young’s motion, noting that the dismissal order had been entered in February 2011, that the postjudgment motion directed to the dismissal order had been denied, that a Rule 60(b) motion directed to the dismissal order had also been denied, and that no appeal had been taken from any of the trial court’s orders in the case. Young filed a reply to SAMC’s response, and the trial court set a hearing on Young’s motion. After the hearing, the trial court denied Young’s motion on August 14, 2012.

Young timely appealed to this court; however, because this court lacked appellate jurisdiction, see Ala.Code 1975, 12-3-10, we transferred the appeal to the Alabama Supreme Court, which, in turn, transferred the appeal back to this court, pursuant to Ala.Code 1975, § 12-2-7(6).

On appeal, Young argues that the February 2011 dismissal order was improperly entered because delay in prosecution alone is insufficient to warrant the severe sanction of dismissal. See, e.g., Gill v. Cobern, 36 So.3d 31, 33 (Ala.2009) (reversing the dismissal of an action because the record reflected that the plaintiffs attorney had inadvertently failed to appear at a pretrial conference and contained no evidence of contumacious conduct or willful default); Blake v. Stinson, 5 So.3d 615, 618-19 (Ala.Civ.App.2008) (determining that a three-year period of inactivity, without evidence of contumacious conduct or willful default, was insufficient basis for dismissal under Rule 41(b)); and Stephenson v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 940 So.2d 307, 308 (Ala.Civ.App.2006) (reversing the dismissal of an action when the record did not reflect contumacious conduct or other extreme circumstances warranting dismissal); but see Mangiafico v. Street, 767 So.2d 1103 (Ala.2000) (plurality opinion) (affirming the dismissal of an action based on the failure of the plaintiff to initiate arbitration proceedings within the deadline imposed by the trial court’s order); and Henderson v. G & G Corp., 582 So.2d 529, 531 (Ala.1991) (affirming the dismissal of an action based on the plaintiffs failure to appear at a summary-judgment hearing because the record indicated that the action had been pending nearly 6 years, the record indicated that there had been several 6-month periods of inactivity, and the trial court had warned the parties 4 separate times by order that the case would be dismissed if no activity occurred within 30 days). Young is correct that, under Alabama law, mere inactivity, even for a lengthy period, is not sufficient basis upon which to base a Rule 41(b), Ala. R. Civ. P., dismissal. See Smith v. Wilcox Cnty. Bd. of Educ., 365 So.2d 659, 662 (Ala.1978) (stating that “the rule is that a lengthy period of inactivity may justify dismissal in the circumstances of a particular case ” and that, generally, inactivity must be coupled with “some other act to warrant the severe penalty of dismissal”); Blake, 5 So.3d at 618-19. However, Young’s argument is to no avail, because we are not reviewing the February 2011 dismissal order.

Young never appealed the February 2011' order dismissing his action. Instead, he chose to seek relief under Rule 60(b) not once, but twice, before seeking review in an appellate court. Because Young failed to appeal either the February 2011 dismissal order or the July 2011 denial of his first Rule 60(b) motion and has appealed only the denial of his second Rule 60(b) motion, this court may consider only the propriety of the trial court’s order denying his second Rule 60(b) motion. Metropolitan Life Ins. Co. v. Akins, 388 So.2d 999, 1000 (Ala.Civ.App.1980). However, as we will explain below, we lack jurisdiction over Young’s appeal.

“‘Alabama caselaw has placed a significant limitation upon the availability of relief under Rule 60(b) where a mov-ant has previously sought relief under that rule. As stated by the Alabama Supreme Court in Ex parte Keith, 771 So.2d 1018 (Ala.1998), “[a]fter a trial court has denied a postjudgment motion pursuant to Rule 60(b), that court does not have jurisdiction to entertain a successive postjudgment motion to ‘reconsider’ or otherwise review its order denying the Rule 60(b) motion.” 771 So.2d at 1022 (emphasis added). In other words, a party who has previously filed an unsuccessful motion seeking relief under Rule 60(b) may not properly file a second motion in the trial court that, in effect, requests the trial court to revisit its denial of the first motion, such as by reasserting the grounds relied upon in the first motion. See Wadsworth v. Markel Ins. Co., 906 So.2d 179, 182 (AIa.Civ.App.2005) (“Successive Rule 60(b) motions on the same grounds are generally considered motions to reconsider the original ruling and are not authorized by Rule 60(b).”).’ ”

Williams v. Williams, 70 So.3d 332, 334 (Ala.Civ.App.2009) (quoting Pinkerton Sec. & Investigations Seros., Inc. v. Chamblee, 934 So.2d 386, 390-91 (Ala.Civ.App.2005)) (second emphasis added in Williams).

The trial court lacked jurisdiction to entertain Young’s second Rule 60(b) motion, which merely requested that the trial court reinstate Young’s action on the same ground asserted in the May 2011 Rule 60(b) motion — namely, the malfeasance of Young’s former attorney. See Wadsworth v. Markel Ins. Co., 906 So.2d 179, 182 (Ala.Civ.App.2005) (“Successive Rule 60(b) motions on the same grounds are generally considered motions to reconsider the original ruling and are not authorized by Rule 60(b).”); see also Williams, 70 So.3d at 334. We have held that “[bjecause a trial court has no jurisdiction to entertain a successive Rule 60(b) motion based upon the same grounds as an earlier Rule 60(b) motion, an order granting or denying such a successive motion ... is a nullity and will not support an appeal.” Chamblee, 934 So.2d at 391. Thus, because the trial court lacked jurisdiction over Young’s second Rule 60(b) motion, we lack jurisdiction over Young’s appeal of the trial court’s order denying that motion, and, accordingly, we dismiss the appeal.

APPEAL DISMISSED.

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

      . Rule 41(b) reads:
      "For failure of the plaintiff to prosecute or to comply with these rales or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rale, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under [Ala. R. Civ. P.,] Rule 19, operates as an adjudication upon the merits.”
      Although the text of Rule 41(b) indicates that a dismissal under the rale should be instigated by a defendant’s motion, the rale has been construed to permit a trial court to dismiss an action sua sponte for lack of prosecution or for failure to comply with court rales or orders based on the trial court’s inherent power to control its own docket. Riddlesprigger v. Ervin, 519 So.2d 486, 487 (Ala.1987).

      . We note that, after his first postjudgment motion was denied, Young filed a "motion to reconsider” the ruling on his postjudgment motion, which the trial court also "denied.” Our supreme court has explained "that if a party has his own post-judgment motion denied, the review of that denial is by appeal. The rules do not provide for a ‘motion to reconsider' the denial of one’s own post-judgment motion.” Ex parte Mutual Sav. Life Ins. Co., 765 So.2d 649, 651 (Ala.1998).

      . Rule 60(b) reads, in pertinent part:
      "On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under [Ala. R. Civ. P.,] Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than four (4) months after the judgment, order, or proceeding was entered or taken.”

      . Neither party has raised the issue of this court’s jurisdiction over this appeal. However, because jurisdictional matters are of such magnitude, this court is permitted to notice a lack of jurisdiction ex mero motu. See Williams v. Williams, 70 So.3d 332, 333 (Ala.Civ.App.2009).


source: Caselaw Access Project

author: THOMPSON, Presiding Judge.

license: Public Domain

text:
    Samuel MILLS, Jr. v. BALDWIN TRANSFER COMPANY, INC., and Alabama Department of Labor.
    2120395.
    Court of Civil Appeals of Alabama.
    Oct. 4, 2013.
    Rehearing Denied Dec. 13, 2013.
    Certiorari Denied Feb. 14, 2014 Alabama Supreme Court 1130353.

      Larry C. Moorer, Mobile, for appellant. Joseph S. Ammons, gen. counsel, and Holly T. Sharp, asst. gen. counsel, Alabama Department of Labor, for appellee.
   THOMPSON, Presiding Judge.

Samuel Mills, Jr., appeals from a judgment of the Mobile Circuit Court (“the trial court”) denying him unemployment-compensation benefits.

Most of the facts in this case are undisputed. The record indicates that Mills, who was 72 years old at the time of the trial, worked for five years as a truck driver for Baldwin Transfer Company, Inc. (“Baldwin”). In 2010, Mills developed an ear infection. Mills does not suggest that the infection was caused or aggravated by his job, but the infection did cause him to suffer dizziness and vertigo. As a result, for two periods in 2010, Mills was absent from work at Baldwin pursuant to the federal Family Medical Leave Act (“FMLA”).

Before a driver for Baldwin can return to work after a medical leave of absence, Baldwin requires him or her to undergo a physical examination that complies with the requirements of the United States Department of Transportation (“DOT”). The physicians at Northside Industrial (“the clinic”) are certified to perform DOT physicals, and Baldwin retains the clinic to determine whether its drivers are cleared to return to work.

On January 19, 2011, Dr. Jason Valentine, a physician at the clinic, examined Mills on behalf of Baldwin and determined that Mills was not physically fit to return to work as a driver. Specifically, Dr. Valentine restricted Mills from driving any commercial vehicle or from climbing for one year, at which time, Mills could be reevaluated. Because of the restrictions imposed by Dr. Valentine, Mills was unable to continue working as a truck driver. Baldwin did not have any other type of work for Mills to do.

On February 10, 2011, Mills visited Dr. Daniel Polansky, who determined that Mills was physically able to return to work. Because Dr. Polansky was not DOT certified, Baldwin would not accept the release. Baldwin told Mills that, to be able to return to work before the yearlong restriction on his driving ended, he could be reexamined by a physician at the clinic, but he would have to do so at his own expense. Mills would not pay the $45 reexamination fee, and instead he decided to comply with Dr. Valentine’s driving restriction.

On February 20, 2011, Mills filed a claim for unemployment-compensation benefits with the Alabama Department of Industrial Relations, now known as the Alabama Department of Labor (“the department”). In completing the paperwork required for the claim, Mills indicated that he was not able to work and that he was not available to accept full-time work because of other obligations. Additionally, he did not contact the department within four days of filing his claim to provide additional information, as the department had instructed. The department denied Mills’s request for benefits, determining that, because he was not able to perform work for which he was qualified based on past training or experience, he was not eligible to receive unemployment-compensation benefits pursuant to § 25-4-77(a)(S), Ala.Code 1975.

Mills appealed the determination to the department’s Board of Appeals (“the board”). The department scheduled a hearing on the issues whether Mills was able and available to work and whether he had left Baldwin voluntarily without good cause connected to his job. After a hearing conducted by telephone, the hearing officer for the board issued a decision in which she determined that Mills had voluntarily quit his job “when he failed to return to work and get a physical required by the employer from the company doctor.” The hearing officer stated that Mills’s reason for leaving work was “of a personal nature and no- work reason was established.” Therefore, the hearing officer concluded, Mills was disqualified from receiving unemployment-compensation benefits, pursuant to § 25-4-78(2), Ala.Code 1975.

In her decision, the hearing officer pointed out that a claimant is not eligible to receive benefits if, among other things, he or she is “physically and mentally unable to perform work of a character which she is qualified to perform by past experience or training.” The hearing officer found that Mills had called the department’s “inquiry line” on February 28, 2011, and provided information indicating that he had become able to work as of February 14, 2011. Therefore, the hearing officer concluded, Mills met the department’s eligibility requirements as of February 14, 2011. However, the decision continued, his disqualification for benefits would remain in effect until he obtained a job and then subsequently met the statutory qualifications to be eligible to receive unemployment compensation.

Mills appealed the hearing officer’s decision to the trial court for a trial de novo. A trial was held on April 17, 2012. In addition to the facts set forth above, the evidence indicated that, at the end of the one-year restriction period imposed by Dr. Valentine, Mills did not return to Baldwin to make himself available for work. Mills testified that, at the time of the trial, he was looking for work. He also said that, since the yearlong restriction had ended, he had been seeking a job in which he could drive a truck locally.

After the trial, the trial court entered a judgment denying Mills’s claim for unemployment-compensation benefits. In explaining its decision, the trial court wrote:

“Here, [Mills] failed to return to Baldwin and offer himself back for work at the expiration of the one (1) year restriction and as such, the Court finds that [Mills] voluntarily quit his job without good cause connected with work and is therefore disqualified from receiving unemployment benefits pursuant to Code of Alabama § 25-4-78(2).”

Mills appealed to this court from the trial court’s judgment.

On appeal, Mills asserts that the trial court erred in denying him unemployment-compensation benefits for the period beginning on February 20, 2011, when he first applied for benefits, and ending on January 19, 2012, when his one-year driving restriction ended and he admittedly failed to return to Baldwin.

“The trial court’s findings of fact in an unemployment compensation case are presumed correct, and its judgment based on such findings will not be reversed unless the findings are clearly contrary to the great weight of the evidence. Department of Industrial Relations v. Pickett, 448 So.2d 364 (Ala.Civ.App.1983). The Unemployment Compensation Act is ‘insurance for the unemployed worker and is intended to be a remedial measure for his benefit.’ Department of Industrial Relations v. Jaco, 337 So.2d 374, 376 (Ala.Civ.App.1976). ‘It should be liberally construed in [the] claimant’s favor and the disqualifications from benefits should be narrowly construed.’ Department of Industrial Relations v. Smith, 360 So.2d 726, 727 (Ala.Civ.App.), cert. den., 360 So.2d 728 (Ala.1978).”

State Dep’t of Indus. Relations v. Bryant, 697 So.2d 469, 470 (Ala.Civ.App.1997). “Whether an employee leaves his employment voluntarily without good cause is a question of fact. Lagrone v. Department of Indus. Relations, 519 So.2d 1345, 1347 (Ala.CivApp.1987).” Director, Dep’t of Indus. Relations v. Ford, 700 So.2d 1388, 1390 (Ala.Civ.App.1997).

The statute relied upon by the trial court in this case is § 25-4-78(2), which provides, in pertinent part:

“An individual shall be disqualified for total or partial unemployment:
“(2) Voluntarily quitting work. If he has left his most recent bona fide work voluntarily without good cause connected with such work.
“a.l. However, he shall not be disqualified if he was forced to leave work because he was sick or disabled, notified his employer of the fact as soon as it was reasonably practicable so to do, and returned to that employer and offered himself for work as soon as he was again able to work; provided, however, this exception shall not apply if the employer had an established leave-of-absence policy covering sickness or disability and:
“(i) The individual fails to comply with same as soon as it is reasonably practicable so to do; or
“(ii) Upon the expiration of a leave of absence shall fail to return to said employer and offer himself for work, if he shall then be able to work, or if he is not then able to work, he fails to so notify his employer of that fact and request an extension of his said leave of absence as soon as it is reasonably practicable so to do.”

For the reasons discussed below, we agree with Mills that the trial court’s finding that he failed to return to Baldwin and offer himself for employment cannot serve as the basis for denying him benefits for the year beginning on January 19, 2011, when Dr. Valentine restricted Mills from working as a commercial truck driver. We note that, on appeal, Mills concedes that, because he did not return to Baldwin at the end of his restriction period, he is not entitled to receive unemployment-compensation benefits from January 2012 forward.

To review the propriety of the trial court’s determination, we must construe the meaning of § 25-4-78(2)a.l.(ii).

“ ‘ “The intent of the Legislature is the polestar of statutory construction.” Siegelman v. Alabama Ass’n of Sch. Bds., 819 So.2d 568, 579 (Ala.2001) (citing Richardson v. PSB Armor, Inc., 682 So.2d 438, 440 (Ala.1996); Jones v. Conradi, 673 So.2d 389, 394 (Ala.1995); and Ex parte Jordan, 592 So.2d 579, 581 (Ala.1992)). We are mindful that “the Legislature will not be presumed to have done a futile thing in enacting a statute; there is a presumption that the Legislature intended a just and reasonable construction and did not enact a statute that has no practical meaning.” Weathers v. City of Oxford, 895 So.2d 305, 309 (Ala.Civ.App.2004) (citing Ex parte Watley, 708 So.2d 890 (Ala.1997), and Ex parte Meeks, 682 So.2d 423 (Ala.1996)).’
“Glass v. Anniston City Bd. of Educ., 957 So.2d 1143, 1147 (Ala.Civ.App.2006). Additionally, ‘ “[a] literal interpretation will not be adopted, when it would defeat the purposes of a statute, if any other reasonable construction can be given to the words.” ’ Limestone County Water & Sewer Auth. v. City of Athens, 896 So.2d 531, 537 (Ala.Civ.App.2004) (quoting Harrington v. State, 200 Ala. 480, 482, 76 So. 422, 424 (1917)). ‘[T]he law is a reasonable master, and it should be so construed in the light of common sense in ascertaining the legislative intent.’ Stith Coal Co. v. Sanford, 192 Ala. 601, 606-07, 68 So. 990, 992 (1915).”

T.G. v. Houston Cnty. Dep’t of Human Res., 39 So.3d 1146, 1149-50 (Ala.Civ.App.2009).

The trial court determined that Mills was disqualified from receiving benefits beginning in January 2011 because, a year after he applied and was denied those benefits, he failed to return to work at Baldwin. In other words, the trial court’s interpretation of § 25-4-78(2)a.l.(ii) deprives Mills of obtaining benefits during the period that, pursuant to Baldwin’s policy, Mills was not able to drive commercially. However, Mills’s failure to return to work at the end of that period cannot possibly be the basis for the denial of benefits as early as February 20, 2011.

As mentioned, the legislature’s intent in enacting the Unemployment Compensation Act (“the Act”), § 25-4-1 et seq., Ala.Code 1975, was to provide “ ‘insurance for the unemployed worker and is intended to be a remedial measure for his benefit.’ ” Bryant, 697 So.2d at 470 (quoting Dep’t of Indus. Relations v. Jaco, 337 So.2d 374, 376 (Ala.Civ.App.1976)). Furthermore, disqualifications from benefits must be narrowly construed. Id. A claimant certainly is not required to wait until he or she once again has the ability to work before he or she can apply for benefits for payments aimed at assisting the claimant during the period he or she cannot work. We conclude that the provision at issue does not become operative until a leave period has ended and the claimant then fails to return to work. During the time a claimant is not able to work, § 25-4-78(2)a.l.(ii) has no application. To interpret the statute in the manner the trial court has interpreted it would deprive a claimant of unemployment-compensation benefits at the time those benefits are most needed. Such a result defeats the purpose of the Act. Accordingly, we conclude that the trial court erred in denying Mills unemployment-compensation benefits from February 2011 until the end of the year during which Dr. Valentine restricted him from driving on the ground that Mills failed to return to Baldwin to offer himself for employment in January 2012.

Our inquiry does not end there, however. This court “ ‘must affirm the judgment of the trial court if that judgment is supported by any valid legal ground, even if that ground was not argued before the trial court or this Court.’ ” Patterson v. Liberty Nat’l Life Ins. Co., 903 So.2d 769, 780 (Ala.2004) (quoting Ex parte CTB, Inc., 782 So.2d 188,191 (Ala.2000)).

Section 25-4-77 of the Act establishes the requirements a claimant must meet to be eligible to receive benefits. Assuming a claimant meets those requirements, he or she still might be disqualified from receiving benefits because of certain reasons enumerated in § 25-4-78. In determining that Mills had voluntarily left his employment without good cause connected to his work, the trial court applied the second step in the process of determining whether Mills was disqualified from receiving unemployment-compensation benefits. The threshold question, however, is whether Mills was eligible to receive benefits in the first place.

On appeal, the department argues that Mills did not seek employment during the year he was restricted from driving; therefore, it says, he was not eligible to receive unemployment compensation. In support of its assertion, the department points out that, to be eligible for unemployment-compensation benefits, a claimant must be physically and mentally able and available to perform work of a character he or she is qualified to perform by past experience or training, and he or she is required to make a reasonable effort to obtain such work during the period for which unemployment-compensation benefits are sought. § 25-4-77(a)(8) and (5), Ala.Code 1975.

Mills presented evidence indicating that, on February 10, 2011, his physician, Dr. Polansky, determined that he was physically able to return to work. In his brief, Mills conceded that, other than being restricted from being a commercial truck driver, he was not medically restricted from performing any other job. Therefore, Mills met the requirement that he be physically and mentally able to work. § 25-4-77(a)(3).

However, a further eligibility requirement is that the claimant make a “reasonable and active effort to secure work which he is qualified to perform by past experience and training.” § 25-4-77(a)(5). “It is not necessary that a claimant seek employment solely in the same industry as her former employment. Heatherly v. Campbell, 485 So.2d 735 (Ala.Civ.App.1986).” Canady v. Allen, 646 So.2d 147, 149 (Ala.Civ.App.1994). A claimant must present evidence that shows he or she made good-faith and reasonable efforts to secure employment. State Dep’t of Indus. Relations v. Singleton, 364 So.2d 325, 326-27 (Ala.Civ.App.1978). In this case, there is no evidence in the record indicating that Mills sought employment of any kind during the time for which he seeks unemployment-compensation benefits. Mills thus failed to meet his burden of demonstrating that he made a good-faith and reasonable effort to secure employment. Accordingly, Mills was not eligible to receive unemployment-compensation benefits, and the trial court’s determination that Mills was not entitled to receive benefits was correct, albeit for a reason not stated in the judgment. The trial court’s judgment denying Mills’s claim for unemployment-compensation benefits is therefore affirmed.

AFFIRMED.

PITTMAN, THOMAS, and DONALDSON, JJ., concur.

MOORE, J., concurs in the result, without writing.

      . On October 1, 2012, the Alabama Department of Industrial Relations, which administered the state's unemployment-compensation system, merged with the Alabama Department of Labor; the consolidated department is now known as the Alabama Department of Labor. See § 25-2-1.1, Ala.Code 1975.


author: PITTMAN, Judge. MOORE, Judge,

text:
    S.G. v. BARBOUR COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2120426.
    Court of Civil Appeals of Alabama.
    Nov. 1, 2013.
    Certiorari Denied Feb. 28, 2014 Alabama Supreme Court 1130205.

      Karen S. Benefield, Eufaula, for appellant.
    Luther Strange, atty. gen., and Sharon E. Ficquette, gen. counsel, and Elizabeth L. Hendrix, asst. atty. gen., Department of Human Resources, for appellee.
   PITTMAN, Judge.

S.G. (“the mother”), the mother of J.G. (“the child”), appeals from a judgment of the Barbour Juvenile Court (“the juvenile court”) terminating her parental rights with respect to the child. We affirm.

Undisputed Facts

The mother is in her early 30’s and gave birth to the child in February 2012. The child has four older siblings. The two oldest of those siblings, who both have the initials M.F., are in the custody of their father. The other two siblings, K.G. and E.G., do not have any contact with the mother because her parental rights with respect to them were terminated in 2010. The Barbour County Department of Human Resources (“DHR”) determined that D.N.S. was the biological father of the child; however, he informed DHR that he was financially unable to care for the child.

Between 2005 and the date of the trial in November 2012, the mother had been involuntarily committed to Searcy Hospital (“Searcy”) on 10 separate occasions and had been diagnosed as suffering from schi-zoaffective disorder. When she does not take her medication, she can have delusions and hear nonexistent voices. Since 2005, the longest period during which the mother has not been subject to an involuntary-commitment order is approximately two years.

On January 31, 2012, the mother was involuntarily committed to Searcy for a minimum of 150 days. During that commitment, she gave birth to the child at University of South Alabama Children’s & Women’s Hospital (“USA”) in February 2012. When she was discharged from USA after the child’s birth, the mother returned to Searcy and remained an inpatient there until she was discharged in July 2012. In September 2012, the mother was involuntarily committed to a mental-health hospital in Dothan. She remained at that mental-health hospital for three weeks and then was transferred to another mental-health hospital where she remained for approximately one and one-half weeks. She was then transferred to a group home where she remained until approximately one month before trial and was then transferred to another group home where she was living when the action was tried. She was subject to a court order requiring her to stay at that group home until February 2013.

Procedural History

DHR was notified of the child’s birth before the mother and the child were discharged from USA. DHR attempted to locate a relative who could care for the child temporarily but could not find one who was both willing and able to do so. Consequently, DHR petitioned the juvenile court for a determination that the child was dependent and the issuance of a pickup order. The juvenile court appointed a guardian ad litem for the child and issued the pick-up order. DHR picked up the child when he was discharged from USA.

The juvenile court subsequently held a shelter-care hearing and, following that hearing, entered an order determining that the child was dependent and placing the child in the temporary custody of DHR. In May 2012, while the mother was still an inpatient at Searcy, DHR filed a motion seeking a determination that, pursuant to § 12-15-312(c), Ala.Code 1975, it was not required to make reasonable efforts to reunite the child with the mother because the mother’s parental rights with respect to two of the child’s siblings, i.e., K.G. and E.G., had been involuntarily terminated in 2010. The juvenile court appointed counsel to represent the mother and, later in May 2012, held a hearing regarding DHR’s motion. During that hearing, the mother asserted that, due to the fact that she suffers from a mental illness, the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“the ADA”), required DHR to make reasonable efforts to reunite the child with the mother. The juvenile court asked the mother’s counsel to submit a brief in support of that assertion, and the mother’s counsel did so. After receiving that brief, the juvenile court, in August 2012, entered an order determining that DHR was not required to make reasonable efforts to reunite the child with the mother.

Later in August 2012, DHR petitioned the juvenile court to terminate the mother’s parental rights with respect to the child. As grounds, DHR alleged that, due to her mental illness, the mother was not able to care for the child or to provide material support for the child and that there were no viable relative resources.

In November 2012, the juvenile court held a bench trial at which it received evidence ore tenus. In December 2012, the juvenile court entered a judgment terminating the mother’s parental rights with respect to the child. After a summary of the testimony of each witness, the judgment states:

“The Court notes that [the child] was placed in foster care with legal and physical custody having been granted to Barbour County DHR on February 16, 2012[,] following a Shelter Care Hearing. From a review’of the court record and the evidence presented at the hearing in this matter, this Court found that [the child] was and continues to be, a Dependent child. Additionally, on August 8, 2012, this Court issued an Order stating that the Barbour County DHR was not required to make reasonable efforts to preserve or reunify [the child] with his family.
“In considering the evidence as a whole, the Court finds that [the mother] is unable to discharge her responsibilities to and for [the child]; and further that the condition of [the mother] is such that she is rendered unable to properly care for [the child], and that her condition is unlikely to change in the foreseeable future. In making these findings, the Court has considered the evidence, which is found to be clear and convincing, that [the mother] suffers from mental illness of such duration as to render her unable to care for the needs of [the child]; that Barbour County DHR has used reasonable efforts to secure relative placement of [the child], but that such efforts have failed.
“There are no viable relative resources presented to possibly avoid a termination of her parental rights.
“Accordingly, based upon the foregoing evidence considered, and findings made by the Court, the termination of parental rights of [the mother] is determined to be in the best interest of the child ...; and it is hereby
“ORDERED, ADJUDGED and DECREED that the parental rights of [the mother] are terminated.”

The mother timely filed a motion for a new trial, which the juvenile court denied.

The mother then timely filed a notice of appeal.

Standard of Review

Because the facts material to the juvenile court’s judgment are undisputed, we apply a de novo standard of review to the juvenile court’s application of the law to those undisputed facts. See J.K. v. Jefferson Cnty. Dep’t of Human Res., 114 So.3d 835, 840 (Ala.Civ.App.2012) (“[A] trial court’s application of the law to undisputed facts is not given a presumption of correctness on appeal....”). Moreover, we apply a de novo standard of review to the juvenile court’s determinations regarding questions of law. Id. (“[TJhis court applies a de novo standard of review to questions of law.”).

Analysis

The mother first argues that the juvenile court erred in terminating her parental rights to the child because, she says, the evidence before the juvenile court was not sufficient to support its judgment. “Under Alabama law,

‘“[a] juvenile court is required to apply a two-pronged test in determining whether to terminate parental rights: (1) clear and convincing evidence must support a finding that the child is dependent; and (2) the court must properly consider and reject all viable alternatives to a termination of parental rights. Ex parte Beasley, 564 So.2d 950, 954 (Ala.1990).’
“B.M. v. State, 895 So.2d 319, 331 (Ala.Civ.App.2004). Concerning the first prong of the test, the petitioner must prove by clear and convincing evidence that grounds for termination exist. See § 12-15-319, Ala.Code 1975; and Bowman v. State Dep’t of Human Res., 534 So.2d 304, 305 (Ala.Civ.App.1988). Section 12-15-319 reads, in part:
‘“(a) If the juvenile court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents renders them unable to properly care for the child and that the conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents. In determining whether or not the parents are unable or unwilling to discharge their responsibilities to and for the child and to terminate the parental rights, the juvenile court shall consider the following factors including, but not limited to, the following:
“ ‘(2) ... [M]ental illness ... of the parent ... of a duration or nature as to render the parent unable to care for needs of the child.
“ ‘(8) That parental rights to a sibling of the child have been involuntarily terminated.
“ ‘Clear and convincing evidence’ is ‘ “[e]vidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion.” ’ L.M. v. D.D.F., 840 So.2d 171, 179 (Ala.Civ.App.2002) (quoting § 6-ll-20(b)(4), Ala.Code 1975).
“... In R.L.M.S. v. Etowah County Dep’t of Human Resources, 37 So.3d 805 (Ala.Civ.App.2009), this court held that, “ ‘[b]efore terminating parental rights, a juvenile court must determine that there are no viable alternatives. Ex parte Beasley, 564 So.2d 950, 952 (Ala. 1990). One viable alternative is placement of the child at issue with a suitable relative qualified to receive and care for the child while the parent completes the rehabilitative process, when such placement serves the best interests of the child. See Ex parte J.R., 896 So.2d 416 (Ala.2004). A relative is suitable and qualified to receive and care for a child when the relative “can safely and properly discharge the parental responsibilities of meeting the child’s needs during the child’s minority.” J.B. v. Cleburne County Dep’t of Human Res., 991 So.2d 273, 288 (Ala.Civ.App.2008). Whether a relative is suitable to assume custody of a child and whether such placement serves the best interests of the child are both questions of fact to be determined by the juvenile court. See T.B. v. Cullman County Dep’t of Human Res., 6 So.3d 1195, 1204-05 (Ala.Civ.App.2008).’

37 So.3d at 812.”

J.S. v. Etowah Cnty. Dep’t of Human Res., 72 So.3d 1212, 1219-23 (Ala.Civ.App.2011).

With respect to the ground for termination specified in § 12-15-319(a)(2), i.e., “mental illness ... of the parent ... of a duration or nature as to render the parent unable to care for needs of the child,” the mother herself testified that she had been involuntarily committed to Sear-cy on 10 separate occasions between 2005 and November 2012, that she had been diagnosed as suffering from schizoaffective disorder, that she had been subject to a court order involuntarily committing her to Searcy when the child was born in February 2012, that she had remained subject to that involuntary-commitment order and had remained an inpatient at Searcy from February 2012 until she was discharged from Searcy in July 2012, that she had been involuntarily committed to another mental-health hospital in September 2012, that she had been continuously subject to court orders committing her to either a mental-health hospital or a group home from September 2012 through the date of the trial in November 2012, and that she would remain subject to a court order committing her to a group home until at least February 2013. We conclude that the mother’s own testimony constituted clear and convincing evidence establishing that the mother suffered from a mental illness “of a duration or nature as to render [her] unable to care for needs of the child” and that the mother’s inability to care for the child was unlikely to change in the foreseeable future.

Moreover, the undisputed evidence established that the mother’s parental rights with respect to two of the child’s siblings had been terminated in 2010. Thus, we conclude that the juvenile court also had before it clear and convincing evidence establishing the ground for termination of parental rights specified in § 12-15-319(a)(8), i.e., “[t]hat parental rights to a sibling of the child have been involuntarily terminated.”

In addition, the juvenile court had before it uncontradicted evidence indicating that DHR had diligently investigated whether there was a relative who could care for the child and that DHR had not been able to locate one. Moreover, before trial, the only relative the mother requested that DHR evaluate as a possible custodian for the child was M.C., a sister of the mother’s maternal grandmother. DHR performed a home evaluation regarding M.C. and determined that she would not be an appropriate custodian for the child because she was in poor health, her income was insufficient, and her house had defects that would pose a safety hazard to a young child. At trial, the mother testified that her sister had told her earlier that day that the sister would be willing to accept custody of the child. However, the mother admitted that her sister had declined to accept custody of the child when DHR had asked her if She would do so and that the sister had financial problems. Accordingly, we conclude that the evidence before the juvenile court was sufficient to establish that there were no viable alternatives to terminating the mother’s parental rights with respect to the child. Thus, we further conclude that the evidence before the juvenile court was sufficient to support its judgment terminating the mother’s parental rights with respect to the child.

The mother also argues that the juvenile court erred in terminating her parental rights with respect to the child because, the mother says, the juvenile court erroneously determined that the ADA did not obligate DHR to make reasonable efforts to reunite the child with the mother. The parties have not cited any Alabama or federal law squarely on point regarding this argument.

In K.J. v. Tuscaloosa County Department of Human Resources, 13 So.3d 971 (Ala.Civ.App.2008), a parent asserted that the predecessor to § 12-15-319(a) violated the ADA insofar as it allowed the termination of her parental rights based on her “mental deficiency” and on her parental rights with respect to another child having been terminated in a previous proceeding. In K.J., we did not reach the merits of that argument because we concluded that, even if the ADA applied to a termination-of-parental-rights proceeding, its requirements had been satisfied in that case because the Tuscaloosa Department of Human Resources had made reasonable efforts to reunite the family that were tailored to the parent’s cognitive limitations.

However, in discussing that argument, this court stated:

“The ADA, specifically 42 U.S.C. § 12132, provides:
“‘Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.’
“The [parent] contends that DHR is a public entity that discriminated against her by terminating her parental rights on the basis of her mental deficiency. Pursuant to the ADA, a ‘mental impairment that substantially limits one or more of the major life activities of [an] individual’ is a disability. 42 U.S.C. § 12102(2). The ADA requires a public entity to make ‘reasonable accommodation’ to allow the disabled person to receive the services or to participate in the programs provided by the public entity. 28 C.F.R. § 35.130(b)(7)(1994).
“Most of the ADA challenges to parental-rights-termination proceedings have been based on the premises either (1) that the ADA preempts a state’s termination-of-parental-rights statutes by virtue of the Supremacy Clause of Art. VI. of the United States Constitution and, accordingly, that the party seeking termination must show that the requirements of the ADA have been met or (2) that the ADA constitutes a defense to a parental-rights-termination proceeding. Both types of challenges have been rejected by the vast majority of the courts that have considered them. See generally Sherry S. Zimmerman, Annot., Parents’ Mental Illness or Mental Deficiency as Ground for Termination of Parental Rights — Applicability of Americans with Disabilities Act, 119 A.L.R.5th 351 (2004). The Hawaii Supreme Court presented an accurate summary of the law with respect to this issue in In re Doe, 100 Haw. 335, 60 P.3d 285 (2002):
“ ‘Many of the cases examining the issue of parental rights and the ADA hold that a termination proceeding is not a “service, program, or activity” within the definition of the ADA and, consequently, the ADA does not apply to such proceedings. See In re Anthony P., 84 Cal.App.4th 1112, 101 Cal.Rptr.2d 423, 425 (2000) (“a proceeding to terminate parental rights is not a governmental service, program, or activity”); In re Antony B., 54 ConnApp. 463, 735 A.2d 893, 899 (1999) (the ADA “neither provides a defense to nor creates special obligations in a parental rights termination proceeding”); M.C. v. Dept. of Children and Families, 750 So.2d 705, 706 (Fla.Dist.Ct.App.2000) (“[Dependency proceedings are held for the benefit of the child, not the parent.”); In re Terry, 240 MichApp. 14, 610 N.W.2d 563, 569 (2000) (“Termination of parental rights proceedings are not ‘services, programs or activities’ ... [and] therefore a parent may not raise violations of the ADA as a defense to termination of parental rights proceedings.”); In re Adoption of Gregory, 434 Mass. 117, 747 N.E.2d 120,125 (2001) (“Proceedings to terminate parental rights are not ‘services, programs, or activities,’ under provision of [the ADA] ... and therefore, the ADA is not a defense to such proceedings.”).
“ ‘There is a smaller number of courts that avoid the ADA question by “finding on the facts presented that the State agency, through the provision of services designed to meet the parent’s special needs, had met any obligations that might be imposed by the ADA.” Gregory, 747 N.E.2d at 125 (citing In re Angel B., 659 A.2d 277 (Me.1995) and In re C.M., 526 N.W.2d 562 (Iowa Ct.App.1994)); see also In re A.J.R., 78 Wash.App. 222, 896 P.2d 1298,1302 (1995).
“ ‘A few courts hold that the ADA may be a defense to parental rights termination cases. See In re C.M., 996 S.W.2d 269, 270 (Tex.Ct.App.1999) (suggesting that the ADA may be defense to a termination proceeding, but rejecting the defense on procedural grounds); Stone v. Daviess County Div. of Children & Family Servs., 656 N.E.2d 824, 830 (Ind.Ct.App.1995) (if there were a statutory requirement to exert reasonable efforts to reunite parent and child, then that statute would be preempted by the ADA, but because there was none, the ADA did not apply).’
100 Haw. at 340-41, 60 P.3d at 290-91.”

13 So.3d at 975-76.

Consistent with the majority of courts that have considered ADA challenges to termination-of-parental-rights proceedings, we hold that a termination-of-parental-rights proceeding is not a service, program, or activity within the meaning of the ADA and that, therefore, the ADA does not apply to such a proceeding. Accordingly, we affirm the judgment of the juvenile court.

AFFIRMED.

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

MOORE, J., concurs in the result, with writing.

MOORE, Judge,

concurring in the result.

I concur in the result reached by the main opinion. I write specially to note that, although the Americans with Disabilities Act (“the ADA”), 42 U.S.C. 12101 et seq., might not apply to a termination-of-parental-rights proceeding, if the Department of Human Resources (“DHR”) is required to make reasonable efforts to reunite the parent and the child, it should comply with the ADA in doing so. See, e.g., Lucy J. v. State Dep’t of Health & Social Servs., Office of Children’s Servs., 244 P.3d 1099, 1116 (Alaska 2010) (“[I]f [the Office of Children’s Services] ‘fails to take into account the parents’ limitations or disabilities and make any reasonable accommodations, then it cannot be found that reasonable efforts were made to reunite the family.’ ” (quoting In re Terry, 240 Mich.App. 14, 26, 610 N.W.2d 563, 570 (2000))). In the present case, however, S.G., the mother, has failed to explain how the Barbour County DHR did not comply with the ADA or how compliance with the ADA would have produced a different outcome in this case given her mental condition. Therefore, I agree that the judgment of the Barbour Juvenile Court must be affirmed. See, e.g., Boshell v. Keith, 418 So.2d 89, 92 (Ala.1982) (“When an appellant fails to argue an issue in its brief, that issue is waived.”).

      .Although the Barbour County Department of Human Resources first became involved with K.G. and E.G. in 2005 and petitioned the juvenile court to terminate the mother's parental rights with respect to K.G. and E.G. in 2006, the juvenile court did not enter the judgments terminating the mother’s parental rights with respect to K.G. and E.G. until December 2010.

      . Before the state closed it in the fall of 2012, Searcy Hospital was a state-operated mental-health hospital.

      . A person suffering from schizoaffective disorder suffers from both schizophrenia and an affective (mood) disorder, which can be either major depression or bipolar disorder.

      . In pertinent part, § 12-15-312(c) provides that "[rjeasonable efforts [to reunify a family] shall not be required to be made with respect to a parent of the child if the juvenile court parent to a sibling of the child have been has determined that the parental rights of the involuntarily terminated.... ”


author: DONALDSON, Judge.

text:
    COOL TEMP, INC. v. PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY.
    2120245.
    Court of Civil Appeals of Alabama.
    Dec. 31, 2013.

      Benjamin H. Farrow of The Anderson Law Firm, L.L.C., Montgomery, for appellant.
    Steve R. Burford and Lindsay P. Hem-bree of Simpson, McMahan, Glick & Bur-ford, PLLC, Birmingham, for appellee.
   DONALDSON, Judge.

Cool Temp, Inc. (“Cool Temp”), appeals from a summary judgment entered by the Jefferson Circuit Court, Bessemer Division (“the trial court”), holding that Pennsylvania National Mutual Casualty Insurance Company (“PNMCIC”) was not obligated under a policy of insurance to defend Cool Temp in an action in tort and contract brought against Cool Temp by Gregory L. Pilkerton, a Cool Temp employee. We affirm.

Facts

On October 24, 2007, Pilkerton sustained injuries when he fell through an attic while servicing a heating, ventilation, and air-conditioning (“HVAC”) system installed by Cool Temp at a residence in Bessemer. At the time of the incident, Pilkerton was an employee of Cool Temp. Shortly following the accident, Pilkerton began receiving worker’s compensation benefits from Cool Temp as a result of the incident.

On October 26, 2009, Pilkerton filed suit (“the underlying suit”) in the trial court against Cool Temp, three named employees of Cool Temp, and various fictitiously named parties. In his complaint initiating the underlying suit, Pilkerton asserted both tort and contract claims against Cool Temp and the fictitiously named parties, including claims of negligence and wantonness in the design, installation, sale, and distribution of the HVAC system; breach of the Alabama Extended Manufacturer’s Liability Doctrine; and breach of warranty. Pilkerton also alleged that three named employees of Cool Temp and the fictitiously named parties breached a duty to provide Pilkerton with a safe workplace. The record reveals that at least one of the three named employees had been served with the summons and complaint before the entry of the summary judgment at issue in this appeal and that Pilkerton never substituted actual parties for the fictitiously named parties. In his complaint, Pilkerton acknowledged that he had been an employee of Cool Temp on the date of the accident.

Cool Temp had a general-liability insurance policy (“the policy”) with PNMCIC that was in effect at the time of the incident. The pertinent portion of the policy concerning coverage for bodily injury and property damage states:

“SECTION I — COVERAGES “COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY
“1. Insuring Agreement “a. We will pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies....
“2. Exclusions
“This insurance does not apply to:
“d. Workers’ Compensation and Similar Laws
“Any obligation of the insured under a workers’ compensation, disability benefits or unemployment compensation law or any similar law.
“e. Employer’s liability ‘Bodily injury to:
“(1) An ‘employee’ of the insured arising out of and in the course of:
“(a) Employment by the insured; or
“(b) Performing duties related to the conduct of the insured’s business; or ...
“This exclusion applies:
“(1) Whether the insured may be liable as an employer or in any other capacity; and
“(2) To any obligation to share damages with or repay someone else who must pay damages because of the injury.
“SECTION V — DEFINITIONS:
“3. ‘Bodily injury’ means bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time.”

(Capitalization in original.)

On November 8, 2009, Cool Temp notified PNMCIC of the underlying suit, requested legal representation under the policy, and provided PNMCIC with a copy of Pilkerton’s complaint. PNMCIC subsequently declined Cool Temp’s request to provide it with a defense to the underlying suit and for indemnification as to Pilker-ton’s claims on the basis that the terms of the policy excluded claims asserted against Cool Temp by an employee. On December 17, 2009, Cool Temp filed a motion to dismiss the underlying suit, arguing that the exclusivity provisions of § 26-5-52, Ala.Code 1975, precluded Cool Temp from being held liable to Pilkerton for tort and contract claims because Pilkerton’s remedies were solely governed by the Alabama Workers’ Compensation Act (“the Act”), § 25-5-1 et seq., Ala.Code 1975. In response to the motion to dismiss, Pilkerton asserted that Cool Temp was liable under the “dual capacity” doctrine, under which an employer normally shielded from civil liability pursuant to § 25-5-52 “may become liable in tort to his own employee if he occupies, in addition to his capacity as employer, a second capacity that confers on him obligations independent of those imposed on him as employer.” 2A Arthur Larson, The Law of Workmen’s Compensation § 72.80, p. 14-112 (1976). On April 6, 2010, the trial court denied Cool Temp’s motion to dismiss.

On April 19, 2010, Pilkerton filed a separate action against Cool Temp in the trial court, in which he sought worker’s compensation benefits. Pilkerton alleged in his complaint initiating the worker’s compensation action that the October 24, 2007, accident arose out of and in the course of his employment with Cool Temp. The trial court consolidated Pilkerton’s two lawsuits against Cool Temp for discovery purposes only.

On March 1, 2011, Cool Temp, through counsel, again submitted a written request to PNMCIC to provide Cool Temp with a defense and indemnity as to Pilkerton’s tort and contract claims pursuant to the policy. On April 7, 2011, PNMCIC again declined the request.

On October 13, 2011, Cool Temp filed a third-party complaint against PNMCIC in the underlying suit in which it alleged a claim of “bad-faith breach of contract” against PNMCIC based on PNMCIC’s refusal to provide Cool Temp with a defense and indemnity as to Pilkerton’s claims in the underlying suit. In its third-party complaint, Cool Temp requested compensatory damages, punitive damages, and an award of attorney fees for prosecuting the third-party action.

Cool Temp filed a motion for a summary judgment as to Pilkerton’s claims in the underlying suit, asserting that Pilkerton’s tort and contract claims were barred by the exclusivity provisions of the Act. On May 27, 2012, the trial court entered a summary judgment in favor of Cool Temp on all of Pilkerton’s claims against it in the underlying suit. In its judgment, the trial court stated:

“The gravamen of [Pilkerton’s] position is that he is entitled to recover from Cool Temp in tort despite the exclusivity of Workers’ Compensation as a remedy under ... § 25-5-52[, Ala.Code 1975,] because either Cool Temp acted with wantonness or it acted in a ‘dual capacity’ in which its involvement with [Pilker-ton’s] injuries was so far removed from the employer-employee relationship between the parties that the relationship should not be considered. The facts as stipulated by the parties do not support either theory.
“On the facts as stipulated by the parties, Cool Temp has presented in its defense the stipulated employer-employee relationship with [Pilkerton] and § 25-5-52’s bar to claims in tort. After completing discovery in this case, [Pilk-erton] is unable to offer, or even proffer, sufficient evidence of wantonness or such a remove between Cool Temp’s role in [Pilkerton’s] accident and its role as his employer that a fair minded trier of fact could conclude that § 25-5-52 should not apply.”

The summary judgment did not address Pilkerton’s claims against the Cool Temp employees named as defendants in his complaint, including the employee who had been served with process, nor did it mention the claims against the fictitiously named parties. Because Pilkerton’s claims against Cool Temp had been resolved in Cool Temp’s favor and were no longer pending, the issue whether PNMCIC was obligated to indemnify Cool Temp was moot. PNMCIC and Cool Temp filed cross-motions for a summary judgment in the third-party action on the issue of whether PNMCIC was obligated to reimburse Cool Temp in the amount of $27,121.50 for the litigation expenses Cool Temp had incurred as a result of providing its own defense in the underlying suit until it received a judgment in its favor. The trial court held a hearing on the motions on September 6, 2012. On October 10, 2012, the trial court entered a summary judgment in favor of PNMCIC in the third-party action. On November 13, 2012, Cool Temp filed a notice of appeal to our supreme court. The supreme court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

Because neither of the trial court’s summary-judgment orders addressed Pilk-erton’s claims against other defendants in the underlying suit, this court questioned whether the appeal had been taken from a final, appealable judgment. This court requested that the parties submit letter briefs concerning whether the judgment was final. Counsel for Cool Temp and PNMCIC asserted that the third-party claims of Cool Temp against PNMCIC had been severed from Pilkerton’s claims against the other defendants in the underlying suit and that the summary judgment had disposed of all the claims by all parties. After a review of the record, however, this court concluded that Pilkerton’s claims against the other defendants in the underlying suit remained pending and that there was nothing in the record establishing that the third-party claims had been severed from the remaining claims in the underlying action. Although, under Rule 4(f), Ala. R. Civ. P., the summary-judgment orders in this case would constitute a final judgment for purposes of appellate review if there had been no other served defendants, the record reveals that service of process had been obtained on one of the employees of Cool Temp named as a defendant. Because the claims against that employee of Cool Temp had not been adjudicated, the judgment could not be considered final absent a certification pursuant to Rule 54(b), Ala. R. Civ. P. Consequently, this court remanded the cause to the trial court with instructions to determine whether the summary judgment in favor of PNMCIC should be amended by certifying the judgment as final pursuant to Rule 54(b). On remand, the trial court amended its judgment to state that, “[a]s there is not just reason for delay, this Court amends its October 10, 2012 judgment in favor of [PNMCIC], and hereby enters judgment for [PNMCIC] certifying it as final under Rule 54(b) of the Alabama Rules of Civil Procedure.” Because the trial court in its amended judgment has made “an express determination that there is no just reason for delay” in entering the summary judgment in favor of PNMCIC and has certified that judgment as final, and because it appears that Cool Temp’s third-party claims are not intertwined with Pilkerton’s remaining claims, the judgment before this court on appeal is a final judgment.

Standard of Review
“This Court’s review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala.2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-53 (Ala.2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce ‘substantial evidence’ as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); Ala. Code 1975, § 12-21-12. ‘[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assur. Co. of Florida, 547 So.2d 870, 871 (Ala.1989).”

Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala.2004). Further,

“[w]hen a trial court interprets an insurance policy as a matter of law, that interpretation is subject to a de novo review. Upton v. Mississippi Valley Title Ins. Co., 469 So.2d 548, 555 (Ala.1985); Aetna Life Ins. Co. v. Hare, 47 Ala.App. 478, 256 So.2d 904, 911 (1972). However, when evidence is presented ore tenus in a nonjury case, a judgment based on that ore tenus evidence will be presumed correct and will not be disturbed on appeal unless it is plainly and palpably wrong or against the great weight of the evidence. Eagerton v. Second Econ. Dev. Coop. Dist. of Lowndes County, 909 So.2d 783, 788 (Ala.200[5]). Nevertheless, this rule is not applicable where the evidence is undisputed or where the material facts are established by undisputed evidence. Salter v. Hamiter, 887 So.2d 230, 233-34 (Ala.2004). Additionally, when the trial court ‘improperly applies the law to the facts, the presumption of correctness otherwise applicable to the trial court’s judgment has no effect.’ Ex parte Bd. of Zoning Adjustment of Mobile, 636 So.2d 415, 418 (Ala.1994).”

Hartford Cas. Ins. Co. v. Merchants & Farmers Bank, 928 So.2d 1006, 1009 (Ala.2005).

Discussion

On appeal, Cool Temp argues that the trial court incorrectly determined that PNMCIC did not have a duty under the policy to provide Cool Temp a defense to the tort and contract claims asserted against it by Pilkerton. As a threshold matter, we note that, in its third-party complaint, Cool Temp asserted only a claim of “bad-faith breach of contract” against PNMCIC arising from its refusal to provide Cool Temp a defense in the underlying suit, articulated the elements of bad faith, and requested compensatory and punitive damages and an award of attorney fees for prosecuting the third-party action. Cool Temp argues for the first time in its reply brief on appeal that its claim against PNMCIC should be construed as asserting “breach of contract” rather than “bad-faith breach of contract.”

“This court does not consider issues raised for the first time on appeal. Somers v. McCoy, 777 So.2d 141, 143 (Ala.Civ.App.2000) (citing Andrews v. Merritt Oil Co., 612 So.2d 409 (Ala.1992); and S.W.M. v. D.W.M., 723 So.2d 1271 (Ala.Civ.App.1998)). Our review ‘is restricted to those arguments considered by the trial court.’ Somers, 777 So.2d at 143 (citing Lyons v. Porter, 539 So.2d 298 (Ala.Civ.App.1988)).”

Singer Asset Fin. Co. v. Connecticut Gen. Life Ins. Co., 975 So.2d 375, 382 (Ala.Civ.App.2007). Cool Temp did not amend its pleadings to add a breach-of-contract claim, nor did it raise this argument in its motion for a summary judgment or in response to PNMCIC’s motion for a summary judgment. Thus, this issue is not properly before this court.

However, as a practical matter, determining whether PNMCIC breached the policy is a threshold issue that must be resolved in evaluating the validity of Cool Temp’s bad-faith claim. In a bad-faith case, the plaintiff has the burden of proving:

“‘(a) an insurance contract between the parties and a breach thereof by the defendant;
“ ‘(b) an intentional refusal to pay the insured’s claim;
“‘(c) the absence of any reasonably legitimate or arguable reason for that refusal (the absence of a debatable reason);
“‘(d) the insurer’s actual knowledge of the absence of any legitimate or arguable reason;
‘“(e) if the intentional failure to determine the existence of a lawful basis is relied upon, the plaintiff must prove the insurer’s intentional failure to determine whether there is a legitimate or arguable reason to refuse to pay the claim.’ ”

Ex parte Alfa Mut. Ins. Co., 799 So.2d 957, 962 (Ala.2001) (quoting National Security Fire & Cas. Co. v. Bowen, 417 So.2d 179, 183 (Ala.1982)) (emphasis omitted).

“The tort of bad faith has been defined as follows:
“‘Every contract contains an implied in law covenant of good faith and fair dealing; this covenant provides that neither party will interfere with the rights of the other to receive the benefits of the agreement. [Citations omitted.] Breach of the covenant provides the injured party with a tort action for “bad faith” notwithstanding that the acts complained of may also constitute a breach of contract. [Citations omitted.]’
“Chavers v. National Sec. Fire & Casualty Co.,-405 So.2d 1, 4 (Ala.1981) (quoting Childs v. Mississippi Valley Title Ins. Co., 359 So.2d 1146 (Ala.1978)) (emphasis added).
“... [A] bad faith claim will lie for a failure to provide the benefits contracted for in an insurance policy. See Chavers v. National Sec. Fire & Casualty Co., 405 So.2d 1, 4 (Ala.1981); Sanford v. Western Life Ins. Co., 368 So.2d 260, 262 (Ala.1979); Childs v. Mississippi Valley Title Ins. Co., 359 So.2d 1146, 1152 (Ala.1978). In Safeco Insurance Co. of America v. Sims, 435 So.2d 1219, 1222 (Ala.1983), this Court stated that a ‘cause of action for bad faith refusal to honor insurance benefits accrues upon the event of the bad faith refusal, or upon the knowledge of the facts which would reasonably lead the insured to a discovery of the bad faith refusal.’ Furthermore, in Vincent v. Blue Cross-Blue Shield of Alabama, 373 So.2d 1054, 1062 (Ala.1979), Justice Jones, in his special concurrence, noted that ‘for proof of bad faith, there must be an absence of a reasonable basis for denial of policy benefits and the knowledge or reckless disregard of [a lack of] a reasonable basis for a denial-’ (Citation omitted.)”

Blackburn v. Fidelity & Deposit Co. of Maryland, 667 So.2d 661, 667-68 (Ala.1995).

In the present case, Cool Temp asserts that because the claims asserted against it in the underlying suit filed by Pilkerton sufficiently invoked the duty of PNMCIC to provide it with a defense under the terms of the policy, PNMCIC should reimburse Cool Temp for the defense costs it incurred until the trial court entered a summary judgment in its favor in the underlying suit. PNMCIC asserts that it did not breach the policy because, it asserts, it did not have a duty under the policy to defend Cool Temp in the underlying suit and, thus, “[t]here can be no claim by Cool Temp for bad-faith breach of contract ... against [PNMCIC] if Cool Temp’s breach of contract claim fails.” As noted above, breach of contract is an element of a bad faith claim. “In order to establish a breach-of-contract claim, a plaintiff must show ‘(1) the existence of a valid contract binding the parties in the action, (2) his own performance under the contract, (3) the defendant’s nonperformance, and (4) damages.’ ” Ex parte Alfa, 799 So.2d at 962 (quoting Southern Med. Health Sys., Inc. v. Vaughn, 669 So.2d 98, 99 (Ala.1995)).

As our supreme court has previously recognized:

“ ‘It is well settled “that [an] insurer’s duty to defend is more extensive than its duty to [indemnify].” United States Fid. & Guar. Co. v. Armstrong, 479 So.2d 1164, 1168 (Ala.1985) (citations omitted). Whether an insurance company owes its insured a duty to provide a defense in proceedings instituted against the insured is determined primarily by the allegations contained in the complaint. Id. at 1168. If the allegations of the injured party’s complaint show an accident or an occurrence within the coverage of the policy, then the insurer is obligated to defend, regardless of the ultimate liability of the insured. Ladner & Co. v. Southern Guar. Ins. Co., 347 So.2d 100, 102 (Ala.1977) (citing Goldberg v. Lumber Mut. Cas. Ins. Co., 297 N.Y. 148, 77 N.E.2d 131 (1948)). However, “[t]his Court ... has rejected the argument that the insurer’s obligation to defend must be determined solely from the facts alleged in the complaint in the action against the insured.” Ladner, 347 So.2d at 103. In Pacific Indemnity Co. v. Run-A-Ford Co., 276 Ala. 311, 161 So.2d 789 (1964), this Court explained:
“ ‘ “We are of [the] opinion that in deciding whether a complaint alleges such injury, the court is not limited to the bare allegations of the complaint in the action against [the] insured but may look to facts which may be proved by admissible evidence. ...”
“ ‘276 Ala. at 318, 161 So.2d at 795; see Ladner, 347 So.2d at 103 (quoting this language). “[I]f there is any uncertainty as to whether the complaint alleges facts that would invoke the duty to defend, the insurer must investigate the facts surrounding the incident that gave rise to the complaint in order to determine whether it has a duty to defend the insured.” Blackbum v. Fidelity & Deposit Co. of Maryland, 667 So.2d 661, 668 (Ala.1995) (citing United States Fid. & Guar. Co. v. Armstrong, 479 So.2d 1164 (Ala.1985)) (other citations omitted). When a complaint alleges both acts covered under the policy and acts not covered, the insurer is under a duty to at least defend the allegations covered by the policy. Blackburn, 667 So.2d at 670 (citing Tapscott v. Allstate Ins. Co., 526 So.2d 570, 574 (Ala.1988)).’
“Acceptance Insurance Co. v. Brown, 832 So.2d 1,14 (Ala.2001). In Tanner v. State Farm Fire & Casualty Co., 874 So.2d 1058, 1064-65 (Ala.2003), this Court stated:
“‘... If the allegedly injured person’s complaint against the insured alleges a covered accident or occurrence, then the insurer owes the duty to defend even though the evidence may eventually prove that the gravamen of the complaint was not a covered accident or occurrence. If the complaint against the insured does not, on its face, allege a covered accident or occurrence, but the evidence proves one, then the insurer likewise owes the duty to defend. The insurer owes no duty to defend only if neither does the complaint against the insured allege a covered accident or occurrence nor does the evidence in the litigation between [the injured person] and the insured prove a covered accident or occurrence. Acceptance Ins. Co. [v. Brown, 832 So.2d 1 (Ala. 2001) ]; Run-A-Ford, supra; Lad-ner, supra. ... ’
“This broad duty on the part of an insurer to defend an insured arises out of the principle that an ambiguous insurance policy is to be construed liberally in favor of the insured and strictly against the insurer. American States Ins. Co. v. Martin, 662 So.2d 245 (Ala.1995); Tyler v. Insurance Co. of North America, 331 So.2d 641 (Ala.1976)

Hartford, 928 So.2d at 1009-11. However, if proof of the facts alleged in the governing pleading would necessarily establish a noncovered occurrence, the insurer would not be obliged to defend. See Ladner & Co., 347 So.2d at 103. “Where facts are alleged in the complaint to support a cause of action, it is the facts, not the legal phraseology, that determine whether an insurer has a duty to defend its insured in the action.” Hartford, 928 So.2d at 1012.

Cool Temp contends that the trial court could not have properly concluded from the complaint in the underlying suit that Pilkerton had alleged that his injury arose “out of and in the course of employment” and “while performing duties related to the conduct of [Cool Tempi's business.” Cool Temp asserts that Pilkerton’s argument that Cool Temp was civilly liable to him under the dual-capacity doctrine should have triggered coverage under the policy. Under the dual-capacity doctrine,

“ ‘ “[t]he test is whether the employer’s conduct in the second role or capacity has generated obligations that are unrelated to those flowing from the company’s or individual’s first role as an employer. If the obligations are related, the doctrine is not applicable.” ’ ”

Ritchie v. Bridgestone/Firestone, Inc., 621 So.2d 288, 290 (Ala.l993)(quoting Bowen v. Goodyear Tire & Rubber Co., 516 So.2d 570, 571-72 (Ala.1987), quoting in turn Therrell v. Scott Paper Co., 428 So.2d 33, 37 (Ala.1983), quoting in turn McCormick v. Caterpillar Tractor Co., 85 Ill.2d 352, 357, 53 Ill.Dec. 207, 209, 423 N.E.2d 876, 878 (1981)).

Our analysis as to whether PNMCIC had a duty to defend Cool Temp in the underlying suit must begin with an examination of the facts Pilkerton alleged against Cool Temp in his complaint. In the opening paragraph of the complaint, Pilkerton claimed that he was employed by Cool Temp on the date of the injury. Although Pilkerton did not expressly state that his injury arose out of and in the course of his employment or while he was performing duties related to the conduct of Cool Temp’s business, the allegations in the complaint unequivocally reflect that he was working in the line and scope of his employment at the time of the accident. Specifically, in paragraph 7 of the complaint, Pilkerton asserts that certain Cool Temp employees failed to provide him “with a safe place to work and/or [failed to] maintain the safety protocols for the HVAC system.” Thus, the only reasonable construction of the complaint is that Pilk-erton was alleging that his injury arose out of and in the course of his employment with Cool Temp, the insured.

Because the court is not limited to the bare allegations of the complaint, however, we must now determine whether facts, which could be proved by admissible evidence, exist to establish that PNMCIC had a duty to defend Cool Temp in the underlying suit. In his complaint for worker’s compensation benefits, Pilkerton asserted that his injury of October 24, 2007, arose out of and in the course of his employment with Cool Temp. The transcript of the trial of Pilkerton’s worker’s compensation case reveals that Pilkerton stipulated that his October 24, 2007, injury arose out of and in the course of employment with Cool Temp. The trial court made a finding in the summary judgment in favor of Cool Temp in the underlying suit that Cool Temp had stipulated to the employer-employee relationship with Pilkerton and that § 25-5-52 would serve to bar Pilkerton’s claims sounding in tort. The evidence submitted to the trial court firmly establishes that Pilkerton’s injury arose out of and in the course of his employment with Cool Temp.

The policy unequivocally excludes from coverage bodily injury of a Cool Temp employee “arising out of and in the course of’ his or her employment with Cool Temp regardless of “[wjhether [Cool Temp] may be liable as an employer or in any other capacity.” Because Pilkerton’s allegations against Cool Temp in his complaint in the underlying suit were not covered under the policy and because there is no eviden-tiary support for Pilkerton’s initial contention that his injuries were not related to his employment with Cool Temp, PNMCIC had no duty to investigate further. We hold that the trial court properly concluded that PNMCIC had no obligation under the policy to provide Cool Temp with a defense to Pilkerton’s tort and contract claims, and, consequently, PNMCIC could have not breached the policy; thus, Cool Temp’s claim alleging bad-faith breach of contract against PNMCIC fails because there was no underlying breach of the contract.

AFFIRMED.

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

      . Because October 24, 2009, was a Saturday, any tort claims asserted by Pilkerton that were subject to a two-year statute of limitations appear to have been timely filed. See Young v. Michael Dwain Mfg., Inc., 504 So.2d 287, 288 (Ala.Civ.App.1986).

      . Section 25-5-52 provides:
      "Except as provided in [the Act], no employee of any employer subject to [the Act] ... shall have a right to any other method, forni, or amount of compensation or damages for an injury or death occasioned by an accident or occupational disease proximately resulting from and while engaged in the actual performance of the duties of his or her employment and from a cause originating in such employment or determination thereof."

      . Rule 21, Ala. R. Civ. P., provides, in pertinent part: "Any claim against a party may be severed and proceeded with separately.” The Committee Comments Adopted February 13, 2004, to Rule 21 state:
      "Confusion has sometimes arisen between a true severance and an order providing for separate trials pursuant to Rule 42(b) [Ala. R. Civ. PJ. The distinction has at least the significance that a judgment on the first of two separate trials is not final, absent an order pursuant to Rule 54(b), Ala. R. Civ. P., while after a true severance a judgment on the first action to come to trial is final and appealable without reference to the proceedings in the severed action....
      "To avoid ambiguity at the time of bifurcation and later uncertainty as to finality, a party seeking a severance or a separate trial should request that the court make clear whether a Rule 21 severance or a Rule 42(b) separate trial is intended. Opinion of the Clerk, 526 So.2d 584, 586 (Ala. 1988), expressed the clerk’s opinion that the plaintiff in the severed action should pay a filing fee '[w]here a "true” severance under Rule 21 is ordered and the clerk dockets a separate case with a new civil action number.’ "
      There is no indication in the record that a separate case had been established. Therefore, it appears that, with regard to the underlying suit and the third-party action, the trial court proceeded as if separate trials were to be held under Rule 42(b), Ala. R. Civ. P.

      . Neither this court nor our supreme court has ever expressly adopted the dual-capacity doctrine, although that doctrine has been discussed and rejected due to factual considerations numerous times. See 2 Terry A. Moore, Alabama Workers' Compensation § 21:12 (2d ed. 2013).