author: BARNES, J„ for the Court:

text:
    Valerie BONNER, Appellant v. IMPERIAL PALACE OF MISSISSIPPI, LLC, Appellee.
    No. 2012-CA-00329-COA.
    Court of Appeals of Mississippi.
    July 16, 2013.

      Sarah Courtney Reese, Judy M. Guice, Biloxi, attorneys for appellant.
    Patrick R. Buchanan, Pascagoula, attorney for appellee.
    Before IRVING, P.J., BARNES and MAXWELL, JJ.
   BARNES, J„ for the Court:

¶ 1. Valerie Bonner filed a negligence action against Imperial Palace of Mississippi LLC (IPM) regarding an injury she allegedly sustained in 2010 when she slipped and fell at the Back Bay Buffet at the Imperial Palace Casino, Resort, and Spa in Biloxi, Mississippi. The Harrison County Circuit Court granted IPM’s motion for summary judgment. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. On June 5, 2010, Bonner and her family traveled from their hometown of Perkinston, Mississippi, to the Imperial Palace in Biloxi, Mississippi. Arriving at the Back Bay Buffet, located inside the Imperial Palace complex, at approximately 9:00 a.m., the party consisted of Bonner, her husband, their three children, and Bonner’s granddaughter.

¶ 3. Bonner left her family’s table to go to the buffet for a second plate of food when she lost her balance, slipped, and fell to the floor near the area where the orange juice is served. Bonner landed on her left knee. When she was on the floor, she noticed a grape next to her along with a wet substance. Bonner later testified that while walking her feet hit a wet substance — “a water spill” that was approximately six inches in size — which caused her feet to become uncontrollable, resulting in the fall. At the buffet, grapes are served loose, or off the stem. Bonner did not know from where the grape or water spill originated, or how long either had been on the floor. Nor was Bonner aware of where on the buffet grapes were served.

¶ 4. A buffet guest, later identified as Warren Dipuma, was walking by, saw Bonner on the floor after she fell, and asked if she was okay. He stated he saw a wet substance on the floor and one “smooshed” grape. He did not know how the grape got on the floor, or how long it had been there before Bonner fell. Dipuma had not seen anyone else in the area slip or fall.

¶ 5. After she fell, Bonner returned to her table. Bryan Moberly, an Imperial Palace security employee, took Bonner’s statement. He asked if she wanted an ice pack, and provided one to her. Moberly also questioned Dipuma about the incident.

¶ 6. After Bonner’s fall, buffet employee Ryan McQueen said he picked up the grape and disposed of it. On June 6, McQueen gave a voluntary statement that he did not observe Bonner’s fall, but did see a “smashed grape” on the floor where Bonner had fallen. On June 10, McQueen gave a supplemental statement that the grape must have “just” fallen because he checked the area less than five minutes earlier, and no grape was on the floor.

¶ 7. A surveillance incident report states that the Imperial Palace surveillance reviewed the video showing the area during the approximately ten minutes prior to Bonner’s fall, and there were no spills or dropped food during this time period. The surveillance video showed numerous individuals walk through the area where Bonner fell without incident. Before Bonner fell, McQueen can be seen cleaning and tending to the orange-juice station, and even wiping the floor near the station with a cloth. A wet substance or a smashed grape cannot be seen on the floor where Bonner slipped; the floor in the area appears to be quite clean.

¶ 8. After speaking with security, Bonner left the Imperial Palace in a wheelchair. The following day, Bonner’s husband drove her to Forrest General Hospital, where she was admitted to the emergency room. X-rays were taken, and Bonner was instructed to follow-up with a specialist if the pain continued. The pain persisted, and as a result, in November 2010, Bonner underwent an arthroscopy of her left knee. She was released from medical treatment in January 2011.

¶ 9. In May 2011, Bonner filed a complaint against IPM for negligence. Discovery ensued, and in December 2011, IPM filed a motion for summary judgment, claiming that Bonner failed to present evidence that: IPM caused the water to be on the floor; IPM had prior knowledge that water was on the floor; or the length of time the water was present on the floor before her fall. After a hearing, the trial court granted summary judgment in favor of IPM, dismissing Bonner’s claim with prejudice. Bonner timely filed a notice of appeal.

STANDARD OF REVIEW

¶ 10. The appellate court’s standard of review for the trial court’s grant or denial of summary judgment is de novo. State ex rel. Hood v. Louisville Tire Ctr., Inc., 55 So.3d 1068, 1072 (¶ 9) (Miss.2011) (citing Evan Johnson & Sons Constr., Inc. v. State, 877 So.2d 360, 364 (¶ 11) (Miss.2004)). Summary judgment shall be granted if “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Id. (quoting M.R.C.P. 56(c)). The trial court must carefully review the evidence in the light most favorable to the nonmoving party. Id. The party opposing summary judgment may not rest upon the allegations of her pleadings, but must set forth specific facts showing there is a genuine issue for trial. M.R.C.P. 56(e). If the opposing party, bearing the burden of proof at trial, “fails to make a showing sufficient to establish an essential element of the claim or defense, then all other facts are immaterial, and the moving party is entitled to judgment as a matter of law.” Alfonso v. Gulf Pub. Co., 87 So.3d 1055, 1060 (¶ 16) (Miss.2012) (quoting Galloway v. Travelers Ins. Co., 515 So.2d 678, 684 (Miss.1987)).

ANALYSIS

¶ 11. In Mississippi, “[a] business owner or operator owes a duty to the invitee to keep its premises in a reasonably safe condition and to warn of dangerous conditions which are not readily apparent to the invitee.” Drennan v. Kroger Co., 672 So.2d 1168, 1170 (Miss.1996) (citing Munford Inc. v. Fleming, 597 So.2d 1282, 1284 (Miss.1992)). However, business owners are not insurers against all injuries. Munford, 597 So.2d at 1284 (citing Jerry Lee’s Grocery, Inc. v. Thompson, 528 So.2d 293, 295 (Miss.1988)). “Strict liability is not imposed on [business owners] in premises liability cases.” Martin v. Rankin Circle Apartments, 941 So.2d 854, 864 (¶ 45) (Miss.Ct.App.2006) (citing Cor-ley v. Evans, 835 So.2d 30, 41 (¶ 32) (Miss.2003)). Mere proof “of the occurrence of a fall on a floor within [the] business premises is insufficient to show negligence on the part of the proprietor.” Stanley v. Boyd Tunica, Inc., 29 So.3d 95, 97 (¶ 8) (Miss.Ct.App.2010) (quoting Byrne v. Wal-Mart Stores, Inc., 877 So.2d 462, 465 (¶ 6) (Miss.Ct.App.2003)).

¶ 12. In Mississippi,

[i]n order for a plaintiff to recover in a slip-and-fall case, he must (1) show that some negligent act of the defendant caused [her] injury; or, (2) show that the defendant had actual knowledge of a dangerous condition and failed to warn the plaintiff; or, (3) show that the dangerous condition existed for a sufficient amount of time to impute constructive knowledge to the defendant, in that the defendant should have known of the dangerous condition.

Downs v. Choo, 656 So.2d 84, 86 (Miss.1995). “All three types of premises-liability claims require a showing of a dangerous condition.... [A] ‘property owner cannot be found liable for the plaintiffs injury where no dangerous condition exists.” Stanley, 29 So.3d at 97-98 (¶ 10) (quoting Delmont v. Harrison Cnty. Sch. Dist., 944 So.2d 131, 133 (¶ 5) (Miss.Ct.App.2006)).

¶ 13. Here, it is undisputed that Bonner was a business invitee to the Back Bay Buffet; thus, IPM owed her the duty to keep the premises reasonably safe, and to warn of any dangerous conditions that might not be readily apparent to her. Since Bonner had the burden of proof at trial, she must have provided sufficient evidence on one of the above three types of premises liability to withstand a motion for summary judgment.

¶ 14. Bonner advances several arguments to show the trial court erred in granting summary judgment in favor of IPM. She contends the trial court erred in rejecting her mode-of-operation argument on premises liability. She also claims the evidence proves all three types of premises liability would apply under the Choo test, even though only one would suffice. Additionally, she argues there are conflicting statements regarding the length of time the grape was on the floor, which create a genuine issue of material fact. We shall discuss each of Bonner’s arguments in turn.

I. Whether the trial court erred in rejecting Bonner’s mode-of-operation theory of liability.

¶ 15. Bonner contends that the mode-of-operation theory of liability would apply, and she can meet her burden of proof under it. She appears to argue that in order to create a jury issue about IPM’s duty of reasonable care, all that was needed was the presence of the grape on the floor, because it was on the floor due to IPM’s manner of serving grapes, or “mode of operation.” She contends that IPM should have been aware that grapes, which are round, when removed from the stems, can roll onto the floor and create a hazard.

¶ 16. The advantage of this theory of liability is that “when an owner of a self-service establishment has actual notice that his mode of operation creates certain risks of harm to customers, and those risks are foreseeable, it is not necessary for the plaintiff to prove notice of the hazard that caused the injury.” Sullivan v. Skate Zone, 946 So.2d 828, 832 (¶ 12) (Miss.Ct.App.2007) (quoting Byrne, 877 So.2d at 466-67 (¶ 11)). Bonner argues that IPM gave actual notice it was creating certain risks that were foreseeable by serving loose grapes on the buffet; therefore, she did not have to prove IPM had actual or constructive knowledge of the hazard that caused her injury under this theory.

¶ 17. In ruling from the bench at the summary-judgment hearing, the trial judge stated that the mode-of-operation theory is not the law in Mississippi. Indeed, IPM notes that in Sullivan, this Court rejected the mode-of-operation principle. Id. There, the plaintiff was skating backwards at a roller rink when she skated over a plastic toy on the rink floor, and fell and broke her arm. Id. at 829-30 (¶ 2). Summary judgment was granted in favor of Skate Zone, and the plaintiff appealed, asserting that all three types of premises liability applied. Id. at 830-32 (¶¶ 3, 11). This Court held the rink did not cause a dangerous condition; the plaintiff “failed to produce any proof that the object which caused her fall was on the rink because of any act or omission of Skate Zone.” Id. at 831 (¶ 10). Regarding whether the defendant had actual knowledge of a dangerous condition but failed to warn patrons, the plaintiff argued that the defendant was aware toys from the nearby arcade could be thrown on the rink floor, and were thrown on the rink floor, because the rink employed a skate guard to pick up such debris. Id. at 832 (¶ 11). This Court stated the plaintiffs argument was basically a mode-of-operation argument, which had been “previously rejected by this Court” in Byrne. Id. at (¶ 12) (citing Byrne, 877 So.2d at 466-67 (¶¶ 11-12)).

¶ 18. Bonner contends the trial judge erred when rejecting this theory of liability, misconstruing Mississippi law and placing an “undue emphasis” on Sullivan, as the rejection “is contradicted by other longstanding pillars of Mississippi law.” However, Bonner offers no such “pillars,” and we are unable to find any ourselves.

¶ 19. Additionally, Bonner argues that both Sullivan and Byrne are factually distinguishable because in those cases there was no proof of where the objects that caused the injury, the toy and cookie respectively, came from. Here, Bonner claims the grape that caused her fall definitively came from the buffet. However, there is no proof of the grape’s origins in the record, or where grapes are served on the buffet.

¶20. Bonner also cites as instructive Merritt v. Wal-Mart Stores, Inc., 911 F.Supp. 242 (S.D.Miss.1995). There, an off-duty Wal-Mart employee reacted promptly and started cleaning up a spill made by a child near a self-service-drink area lacking non-skid matting. Id. at 242-43. But before she could clean it up, a customer slipped and fell. Id. at 242. There was no time to warn the plaintiff of the spill, as the fall occurred in less than a minute from the spill. Id. at 242-43. The Memtt court concluded there was no jury issue on whether Wal-Mart took adequate action to clean up the spill, but there was a jury issue on whether Wal-Mart had created an unreasonably safe area. Id. at 247-48. The plaintiff argued a mode-of-operation theory — Wal-Mart created an unreasonably safe area. Id. at 244^15. The supreme court discussed the history of slip-and-fall jurisprudence, and concluded the three theories of the Choo test on premises-liability recovery were applicable, and rejected a mode-of-operation theory. Id. at 246-47. We find this case does not advance Bonner’s argument.

¶ 21. Bonner also cites F.W. Woolworih Co. v. Stokes, 191 So.2d 411 (Miss.1966), in support of her proposition that she does not have to prove knowledge or notice of the dangerous condition by IPM. In F.W. Woolworih, the plaintiff slipped and fell in a puddle of water that was tracked in from outside the store. Id. at 412. However, the defendant knew that water was being tracked into the store and undertook mopping in response. Id. at 413. The supreme court held that since it had been raining all day, the customer was not required to prove that the storekeeper had actual or constructive knowledge of the dangerous condition. Id. at 417. Instead, liability turned merely on whether the storekeeper had taken reasonable precautions to prevent the hazard. Id. at 418. However, “this reasoning applied to a hazard which was only present on intermittent occasions, and not to a hazard inherent in the [storekeeper’s] method of doing business.” Millers of Jackson, Meadowbrook Rd., Inc. v. Newell, 341 So.2d 101, 103 (Miss.1976) (citing F.W. Woolworth, 191 So.2d at 416-18).

¶ 22. Bonner claims F.W. Woolworth is analogous to IPM not exercising ordinary care to prevent the hazardous grape on the floor near the buffet. We disagree. Unlike F.W. WoolwoRh, here there is no evidence IPM had notice of the grape and/or water on the floor before Bonner’s fall, and this is certainly not comparable to the intermittent occasion of rainwater being tracked into a store.

¶ 23. In support of her argument that grapes and other produce can create a dangerous condition if served a certain way, Bonner cites three out-of-state eases that utilize a mode-of-operation theory of liability: Cobb v. Skaggs Cos., 661 P.2d 73 (Okla.Civ.App.1983), Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 221 A.2d 513 (1966), and Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 818 A.2d 314 (2003). However, since Mississippi has not approved this theory of liability, these cases are not persuasive authority.

¶ 24. In sum, the trial court did not err in rejecting Bonner’s mode-of-operation argument.

II. Whether a negligent act by IPM caused Bonner’s injury.

¶ 25. In Mississippi, as stated earlier, one way to establish premises liability is to “show that some negligent act of the defendant caused [the plaintiffs] injury.” Choo, 656 So.2d at 86. Bonner argues IPM created a hazardous condition for patrons by the negligent act of serving grapes removed from the stem and in an open container, whereby grapes could more likely fall to the floor from customers’ plates. Additionally, she claims that IPM’s lack of safety systems and failure to utilize its standard cleanup procedures for spills and debris on the floor equate to a negligent act. She claims these negligent acts by IPM caused Bonner’s injury, thereby establishing a jury issue on whether IPM exercised reasonable care in the manner it served grapes.

A. Negligent Act

¶ 26. Bonner claims that by serving loose grapes on flat plates, IPM is just “inviting round grapes to fall to the floor” in the buffet area. However, Bonner failed to offer any proof that the grape which caused her to fall was on the buffet floor because of any negligent act or omission by IPM — all that IPM admitted was that a grape was on the floor at the time of the incident. The record shows IPM took reasonable precautions to prevent patrons from slipping on food or liquid at the buffet. There is no evidence Bonner or any other customers or employees knew how the grape and/or liquid came to be on the floor. Accordingly, Bonner could not meet her burden of proof that a negligent act by IPM caused Bonner’s injury.

B. Lack-of-Safety-Systems Argument

¶27. Bonner argues that IPM acted negligently because it lacked safety sys-terns, and failed to discover and eliminate the grape and/or liquid that caused Bonner’s fall. IPM claims this argument is very similar to a mode-of-operation argument as well — a claim Bonner denies.

¶ 28. Bonner contends IPM admitted in discovery that it had no safety systems, rules, manuals, and/or corporate safety programs utilized to minimize hazards at the buffet. However, this statement is inaccurate. What IPM admitted is not having any “documents” relating to these items. In response to an interrogatory about safety systems, safety rules, and corporate safety programs, IPM explained a detailed procedure for when a spill occurs on the floor. Further, the surveillance video shows McQueen, the employee on duty in the area, keeping the area quite clean, and even wiping the floor with a yellow cloth near the orange-juice stand a few minutes before Bonner’s fall.

¶ 29. Bonner also complains that McQueen did not use any of the safety procedures to clean the area stated in IPM’s response to interrogatories. However, the video actually shows the floor of the area where Bonner fell to be free of any visible liquid or a smashed grape. Any liquid and/or grape on the floor must have been quite small. In fact, in the video a bystander had to point to the area where Bonner slipped so McQueen could clean the area. The video shows once McQueen realized Bonner had slipped, he used a yellow cloth to pick up something, carefully wipe the floor where she slipped, and dispose of the cloth. We fail to see how McQueen’s cleaning techniques before and after Bonner’s fall could be interpreted as a negligent safety procedure, or could have somehow caused the grape to be on the floor. We also fail to see the “numerous dangerous conditions” that Bonner claims appear during the short span of the video. Further, just because McQueen wiped the floor with a cloth near the juice stand before Bonner fell does not mean he should have seen or known about a grape on the floor where Bonner fell. There is no genuine issue of material fact that McQueen failed to use reasonable care in monitoring and cleaning the floor, or that IPM had inadequate safety procedures in place to deal with spills and substances on the floor of its buffet. We find no merit to this argument.

III. Whether IPM had actual or constructive knowledge of a dangerous condition.

¶ 30. A plaintiff can recover on a premises-liability claim if she can “show that the defendant had actual knowledge of a dangerous condition and failed to warn the plaintiff ... [or] show that the dangerous condition existed for a sufficient amount of time to impute constructive knowledge to the defendant, in that the defendant should have known of the dangerous condition.” Choo, 656 So.2d at 86. When the dangerous condition was created by the negligence of the business owner or someone under his authority, no proof of the owner’s knowledge of the condition is necessary. Drennan, 672 So.2d at 1170. However, if the dangerous condition was created by someone not associated with the business or its operation, “the plaintiff must produce evidence demonstrating that the operator had actual or constructive knowledge of the condition.” Id. (citing Choo, 656 So.2d at 86).

¶ 31. Bonner argues that she does not need to prove notice under her mode-of-operation argument, or, alternatively, she does not need to prove notice because she has shown IPM caused the dangerous condition. Even so, she claims she can still prove that IPM had both actual and constructive knowledge of the dangerous condition.

A. Actual Knowledge

¶ 32. Bonner claims IPM had actual knowledge of the dangerous condition due to three other unrelated incidents involving grapes in the buffet area in May and November 2008, and June 2009. Bonner apparently argues these incidents should be used to impute actual knowledge to IPM.

¶ 33. In response, IPM argues that offering these prior incidents as proof of IPM’s actual knowledge of a dangerous condition is improper. We agree. “Mississippi has long followed the rule of admitting evidence of prior acts or accidents for the purpose of showing a dangerous condition and notice thereof, but this evidence has been admitted only in cases where other proof of negligence is present.” Hartford Ins. Grp. v. Massey, 216 So.2d 415, 417 (Miss.1968) (citations omitted). Admissibility is limited — the former accidents must have “happened under substantially the same circumstances” as the subject accident. Id. Additionally, the other accidents may not be too remote in time from the accident at issue — the supreme court has found a one-year limitation is reasonable. Irby v. Travis, 935 So.2d 884, 895 (¶ 24) (Miss.2006) (citing Barrett v. Parker, 757 So.2d 182, 188 (¶ 19) (Miss.2000)).

¶ 34. Here, while the three incidents involved grapes, Bonner does not offer any evidence of “other proof of negligence,” as required b.y Massey. Further, we note only one of the incidents occurred within a year of Bonner’s fall. Moreover, these incidents are insufficient to support Bonner’s argument that IPM had actual knowledge that serving grapes off the stem was a dangerous practice.

¶ 35. Additionally, Bonner complains that buffet employee McQueen, just a few feet from the site of Bonner’s fall, did not warn Bonner or any other patrons of the grape. However, in the surveillance video, McQueen was not aware there was a grape on the floor (nor can a grape be seen on the video), and he did not see Bonner fall — McQueen was tending to the orange-juice stand with his back turned to Bonner when she fell. Bonner also argues that IPM failed in its responsibility to have employees “constantly monitor the floors.” However, in the video, McQueen was quite active in keeping the floors free of liquid and debris. In fact, he was wiping the floor near the juice stand a few minutes before Bonner fell.

¶ 36. Bonner failed to prove that IPM had actual knowledge that the grape or liquid was on the floor prior to Bonner’s fall. Further, Bonner offers no evidence to show that these prior incidents are related to the way IPM serves grapes.

B. Constructive Knowledge

¶ 37. Bonner argues constructive knowledge is imputed to IPM based on the way it served the grapes on the buffet. “Constructive knowledge is present where, based on the length of time that the condition existed, the operator exercising reasonable care should have known of its presence.” Drennan, 672 So.2d at 1170. Bonner argues that the dangerous condition, the grape and/or liquid substance, existed for a sufficient amount of time to impute constructive knowledge to IPM. Specifically, Bonner maintains that the grape and liquid were on the floor for over ten minutes. Finally, she argues, in a separate issue, that there are conflicting statements regarding the length of time the substances were on the floor, which creates a genuine issue of material fact.

¶ 38. In contrast to Bonner’s contentions, we find no evidence in the record as to how long the grape and/or liquid had been on the floor before Bonner fell. Bonner did not know how long the substances had been on the floor before she fell, nor did any of her family members. During their trips to the buffet, no one in Bonner’s family saw a grape and/or liquid on the floor. Dipuma, who was nearby when Bonner fell, but did not witness the fall, walked through the area before Bonner fell and testified he did not see anything on the floor. Before the incident, Dipuma also saw other customers walk through the area where Bonner fell, without a problem. The surveillance video confirms this statement, as it shows numerous people walking through the same area where Bonner fell without incident, including Bonner the first time she went to the buffet. Additionally, McQueen, working in the area where Bonner fell, walked over the area where Bonner fell five minutes beforehand and testified he did not observe a grape on the floor.

¶ 39. Finally, Bonner claims there is a factual issue as to how long the grape was on the floor because the surveillance video was reviewed for ten minutes prior to Bonner’s fall, yet no dropped food or spills were observed. However, a grape and liquid substance were cleaned off the floor after Bonner’s fall. Therefore, Bonner contends a jury could infer that the substances could have been on the floor for longer than ten minutes.

¶ 40. We disagree with these contentions. As IPM states, Bonner must produce evidence where it could be reasonably concluded that a grape or water was on the floor long enough that IPM should have known about it. Bonner failed to do so.

CONCLUSION

¶ 41. The evidence shows IPM maintained its duty to keep the premises reasonably safe. Bonner does not offer sufficient evidence that a dangerous condition existed. Nor does she prove any of the three bases of premises liability. Bonner fails to offer evidence that IPM was responsible for the grape and/or liquid being on the floor, or that IPM had actual or constructive knowledge of their presence. Accordingly, the trial court did not err in granting summary judgment in favor of IPM.

¶ 42. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.

      . However, in reports at the time of the incident, Bonner only mentioned that she slipped on a grape; she did not mention a water spill.

        . See Karpinsky v. Am. Nat'l Ins. Co., 109 So.3d 84, 89 (¶ 13) (Miss.2013) (The defendant carries the initial burden of persuading the trial judge that there is no issue of material fact, but the plaintiff carries the burden of producing evidence of the essential elements of a claim at the summary-judgment stage, as the plaintiff carries the burden of production at trial. Accordingly, the defendant carries no burden of production at the summary-judgment stage.)

      . In Byrne, the plaintiff slipped and fell on an unidentified object — probably a cookie — in the ladies’ apparel department at Wal-Mart. Byrne, 877 So.2d at 464 (¶ 2). This Court held that the trial court did not err in failing to apply the mode-of-operation theory, as Byrne had argued, stating: "Our state courts have yet to adopt the ‘mode of operation' theory, and we decline the invitation to set aside years of precedent in premises liability cases to adopt a new rule.” Id. at 467 (¶ 13).

        Sullivan cites to this passage in Byrne in rejecting that plaintiff's mode-of-operation theory, contradicting Bonner's statement in her brief that Sullivan does not cite any authority for its rejection of the theory:
      In Byrne, the Court concluded that "by accepting Byrne’s argument, we would be subjecting store owners who allow customers to walk around the store with food, toys, or other potentially 'dangerous objects’ to a strict liability standard.” This theory is simply inconsistent with the well-established principle that property owners owe invitees a duty of reasonable care to keep the premises in a reasonably safe condition, not to ensure that the premises are completely risk-free.

        Sullivan, 946 So.2d at 832 (¶ 12) (internal citations omitted) (quoting Byrne, 877 So.2d at 467 (¶ 12)).

      . The plaintiff in Byrne also cited Merritt as her sole Mississippi authority on her mode-of-operation argument, and her argument that she did not need to prove actual or constructive notice. Byrne, 877 So.2d at 466-67 (¶¶ 11, 13). This Court stated reliance on Merritt was misplaced, and we refused to extend Merritt's "limited holding” to Byrne's facts. Id. at 467 (¶ 12).

      . We note Merritt preceded Sullivan.

      . In Cobb, 661 P.2d at 76-77, the court reversed the trial court’s grant of summary judgment in favor of the grocery-store owner, holding there was a jury question regarding whether the store owner was aware that fallen grapes were a danger to customers; whether the store had an inadequate sweeping policy; and whether there was creation of a foreseeable, unreasonable risk by displaying grapes without a table guard or other such protection. The court noted that in Oklahoma, the "self-service marketing method has spawned a growing trend of cases that dispense with the traditional notice requirement in such business settings....” Id. at 76. Since the self-service methods necessarily create the dangerous condition, the owner "is deemed to have actual notice of the condition, eliminating the need for proof of notice.” Id.

        Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 221 A.2d 513 (1966), is one of New Jersey’s seminal mode-of-operation cases. Capano v. Moran Foods, Inc., 2011 WL 134701, at *2 (N.J.Super.Ct.App.Div.). In Wollerman, 221 A.2d at 514, the plaintiff slipped and fell on a loosely packaged string bean in a supermarket. The New Jersey Supreme Court reversed the trial court’s dismissal of the case, and granted a new trial. Id. The court concluded: "When greens are sold from open bins on a self-service basis,” it creates a "likelihood that some will fall or be dropped to the floor.” Id. The court held that the "mode of operation” was likely to create a risk of injury because of the carelessness of either the customers or employees. Id. Therefore, the supermarket has the obligation to use reasonable measures promptly to discover and remove the hazard, even if there was no notice of the bean’s presence on the floor, to avoid an inference of fault. Id. at 514-15.
      Additionally, Bonner cites Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 818 A.2d 314, 315 (2003), another seminal mode-of-operation case from New Jersey, where the plaintiff slipped and fell on loose grapes as she approached the checkout line. Applying the Wollerman mode-of-operation rules, the court concluded the type of bags the grapes were packaged in "invited spillage.” Id. at 317. "Thus, the dangerous condition caused by stray grapes” at the checkout lanes "was a foreseeable risk posed by the store's mode of operation,” thereby entitling the plaintiff to an inference of negligence. Id. at 318.

      . If Bonner’s argument is considered valid, this liability would of course extend to any round food, such as cherry tomatoes or olives.

      . IPM stated its clean-up procedures are as follows. Once a spill is identified, an associate is to deter traffic so that no one falls in the area. Safety cones are to be placed in the area, and yellow safety cloths are to be placed on the spill as a deterrent, and to clean up the spill. Then it is to be mopped three times; the last with a dry mop or air drier.

      .In discovery, IPM admitted to a grape being on the floor; McQueen provided a statement that he observed and picked up a grape on the floor, and Bonner stated that after she fell, she noticed a grape near her buttock along with a liquid substance.

      . Incident reports of these accidents were attached to Bonner’s response to IPM’s motion for summary judgment. Bonner also cites these incidents in her reply brief as proof of IPM’s inadequate safety systems. In one incident, a patron was wearing flip-flops and slipped on a grape near the dessert and fruit station, but did not fall. In another incident, a guest fell on a grape near the fruit and salad bar of the buffet. In the last incident, a guest fell on preserves and crushed grapes at the salad bar. All three guests declined medical treatment.

      . Bonner cites as analogous Karpinsky v. American National Insurance Co., 109 So.3d 102 (Miss.Ct.App.2012) (Karpinsky I). However, Karpinsky I was not settled law at the time Bonner's brief was filed on September 11, 2012, as a petition for writ of certiorari had been filed by the Appellees on July 27, 2012. The Mississippi Supreme Court granted the petition and ultimately reversed this Court’s ruling in Karpinsky v. American National Insurance Co., 109 So.3d 84, 86 (¶ 1) (Miss.2013) (Karpinsky II).
      In Karpinsky II, the plaintiff slipped and fell on water outside of a store in a mall. Karpin-sky II, 109 So.3d at 86 (¶ 2). A witness provided a statement that the spill had been on the floor quite some time, but an incident report did not show when the store received actual notice of the spill, i.e., when it was reported. Id. at 90 (¶ 18). The circuit court granted summary judgment in favor of the defendants, but this Court, in a divided decision, reversed, stating there was a genuine issue of material fact regarding how long the spill had been on the floor due to these conflicting statements. Id. at 87 (¶ 7); Karpinsky I, 109 So.3d at 104 (¶ 12). The Mississippi Supreme Court, however, ruling in favor of the defendants, reversed this Court’s judgment, and held: the plaintiff did not establish when the defendants were notified of the spill; how long it took for them to respond to it once they had notice; or if they had a reasonable time to correct the dangerous condition. Karpinsky II, 109 So.3d at 92 (¶ 24).


source: Caselaw Access Project

author: LEE, C.J., for the Court:

license: Public Domain

text:
    Christopher CARTER a/k/a Christopher Paul Carter a/k/a Christopher P. Carter a/k/a Chris Carter, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KM-00674-COA.
    Court of Appeals of Mississippi.
    July 16, 2013.

      William P. Featherston Jr., Ridgeland, attorney for appellant.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
    Before LEE, C.J., FAIR and JAMES, JJ.
   LEE, C.J., for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. Christopher Carter was found guilty of driving under the influence (DUI), second offense, in the City of Ridgeland Municipal Court on November 16, 2010. Carter appealed to the County Court of Madison County, Mississippi. After a trial de novo, a jury convicted Carter of second-offense DUI. Carter was sentenced to thirty days in the custody of the Sheriff of Madison County, with the last fifteen days suspended, followed by two years’ probation. Carter was also ordered to pay a $1,500 fine.

¶ 2. Carter appealed his conviction to the Circuit Court of Madison County, alleging that the county court erred in overruling his motion in limine to prohibit the prosecution from mentioning his prior DUI conviction in front of the jury. The circuit court affirmed Carter’s conviction. Carter now appeals to this Court, asserting that the county court erred in overruling his motion in limine.

DISCUSSION

¶ 3. In his only issue on appeal, Carter contends the county court erred in overruling his motion in limine to prohibit the prosecution from mentioning his prior DUI conviction in front of the jury. Carter cites to Strickland v. State, 784 So.2d 957 (Miss.2001), to support his position. Strickland stated the “prior convictions are only relevant as to sentencing and should only be admitted during a separate sentencing phase.” Id. at 962 (¶ 20). However, the Mississippi Supreme Court has since found that a “prior conviction is a necessary element of second-offense DUI.” Lyle v. State, 987 So.2d 948, 950 (¶ 7) (Miss.2008). “Since the State is required to prove all the essential elements of the crime charged, it [is] not unfair prejudice to present evidence of prior DUI convictions.” Smith v. State, 950 So.2d 1056, 1060 (¶ 17) (Miss.Ct.App.2007). Therefore, we find this issue to be without merit.

¶ 4. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT OF CONVICTION OF DRIVING UNDER THE INFLUENCE, SECOND OFFENSE, AND SENTENCE OF THIRTY DAYS, WITH THE LAST FIFTEEN DAYS SUSPENDED, FOLLOWED BY TWO YEARS OF PROBATION, AND A $1,500 FINE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

IRVING AND GRIFFIS, P JJ., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.

      . Carter also pleaded guilty to one count of driving on the wrong side of the road. However, Carter did not appeal this conviction.


author: ISHEE, J., for the Court:

text:
    Brien BLAKENEY a/k/a Brien Austin Blakeney, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KM-00615-COA.
    Court of Appeals of Mississippi.
    July 16, 2013.
    Kevin Dale Camp, Jackson, attorney for appellant.
    Office of the Attorney General by Lisa Lynn Blount, Roy E. Carpenter Jr., John R. Henry Jr., attorneys for appellee.
    Before GRIFFIS, P.J., ISHEE, and ROBERTS, JJ.
   ISHEE, J., for the Court:

¶ 1. Brien Blakeney was convicted of driving under the influence in the Stark-ville Municipal Court. He appealed that decision to the Oktibbeha County Circuit Court. All parties then agreed to nonad-judication; nonetheless, the trial judge entered an order finding Blakeney guilty. From that ruling, Blakeney appeals. Finding that Blakeney should have been nonadjudicated, we reverse the judgment and remand this case to the trial court for findings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶ 2. Blakeney was convicted in the municipal court of driving under the influence. He appealed the decision to the circuit court. The matter was heard in the circuit court on November 21, 2011. At the time, all parties agreed that Blakeney qualified for nonadjudication pursuant to Mississippi Code Annotated section 68 — 11— 30(3)(g)(Supp.2012). The trial judge agreed to the nonadjudication; however, in error, the State submitted an order to the trial judge finding Blakeney guilty of driving under the influence. Therefore, an order was entered finding Blakeney guilty. He was assessed a fine of $250, ordered to attend the Mississippi Alcohol Safety Education Program (MASEP), and had his driver’s license suspended. Discovering the error, Blakeney now appeals.

DISCUSSION

¶ 3. On appeal, Blakeney argues the trial court erred by failing to sign an order of nonadjudication when Blakeney qualified for the ruling and all parties agreed to the nonadjudication. The State, after reviewing the trial transcripts and speaking with the trial judge, admits the entry of an order finding Blakeney guilty was in error. Therefore, the State requests that we reverse the judgment and remand the case for resentencing in accordance with the agreement between the parties for a ruling of nonadjudication.

¶ 4. Mississippi Code Annotated section 63 — 11—30(3)(g) states: “The court shall have the discretion to rule that a first offense of this subsection by a person under the age of twenty-one (21) years shall be nonadjudicated. Such person shall be eligible for nonadjudication only once.” Under the statute, Blakeney was eligible for nonadjudication. Furthermore, upon review of the trial transcript, it is clear the trial judge agreed to non-adjudication. In addition, the parties stipulate that they agreed to the nonadjudication. The entry of an order finding Blakeney guilty was obviously in error. Accordingly, we reverse the trial court’s judgment and remand this case to the trial court for findings consistent with this opinion.

¶ 5. THE JUDGMENT OF THE OK-TIBBEHA COUNTY CIRCUIT COURT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO OKTIB-BEHA COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ROBERTS, MAXWELL, FAIR AND JAMES, JJ., CONCUR. CARLTON, J., NOT PARTICIPATING.


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    Terrance Durrell HUDSON a/k/a Terrance D. Hudson, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00938-COA.
    Court of Appeals of Mississippi.
    July 16, 2013.

      George T. Holmes, Jackson, Mollie M. McMillin, Joe Robert Norton IV, attorneys for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before GRIFFIS, P.J., ISHEE, ROBERTS and CARLTON, JJ.
   ISHEE, J., for the Court:

¶ 1. In 2012, Terrance Hudson was convicted in the Lincoln County Circuit Court of possession of cocaine with intent to distribute. He was sentenced to fifteen years in the custody of the Mississippi Department of Corrections (MDOC), with nine years suspended and six years to serve. After his post-trial motion for a new trial or, in the alternative, a judgment notwithstanding the verdict (JNOV) was denied, Hudson filed the present appeal. Finding no error, we affirm.

STATEMENT OF FACTS

¶ 2. In 2011, Deputy Keith Dickerson, a narcotics agent with the Lincoln County Sheriffs Department, was present in Brookhaven, Mississippi, with Jimmy Williams, an informant, during a sting operation. Deputy Dickerson witnessed Williams call Hudson, heard him request to purchase crack cocaine from Hudson, and heard him give Hudson a meeting place to conduct the transaction. Deputy Dickerson and Williams then waited for Hudson’s arrival in a motel room in Brook-haven.

¶ 3. A short time later, Hudson knocked on the door. Deputy Dickerson let him into the motel room. When Hudson entered the room, Deputy Dickerson immediately pointed a taser at him and told him to drop to the floor. Hudson complied, and as he knelt to the ground, he dropped a small bag containing a white substance. Deputy Dickerson retrieved the bag and attempted to arrest Hudson. However, Hudson successfully fled from Deputy Dickerson and was not apprehended.

¶4. Other narcotics agents had been posted outside of the motel room and observed Hudson’s arrival. Hudson had pulled into the motel’s parking lot in a vehicle with several other people inside. After Hudson escaped, the other narcotics agents questioned the persons remaining in Hudson’s vehicle. The information gained from the interviews led the agents to several suspects. After reviewing the suspects’ photographs, Deputy Dickerson was able to positively identify Hudson as the culprit. Hudson was then arrested and charged with possession of cocaine with intent to distribute.

¶ 5. At trial, Deputy Dickerson, Williams, and one of the men who rode with Hudson to the motel that night testified for the State. The jury returned a guilty verdict, and Hudson was sentenced to fifteen years in the custody of the MDOC, with nine years suspended and six years to serve. Lacking the means for appellate counsel, his appeal was assigned to the Office of State Public Defender, Indigent Appeals Division. However, his appellate counsel avers there are no arguable issues for appellate review.

DISCUSSION

¶ 6. The case of Lindsey v. State, 939 So.2d 743 (Miss.2005), governs this appeal. In Lindsey, the Mississippi Supreme Court promulgated procedures that an attorney must follow when the “appellate counsel represents an indigent criminal defendant and does not believe his or her client’s case presents any arguable issues on appeal[.]” Id. at 748 (¶ 18).

¶ 7. When this situation arises, an attorney must:

(1) [Fjile and serve a brief in compliance with Mississippi Rule of Appellate Procedure 28(a)(l)-(4), (7);
(2) [C]ertify [in the brief] that there are no arguable issues supporting the client’s appeal, and [that the attorney] has reached this conclusion after scouring the record thoroughly, specifically examining: (a) the reason for the arrest and the circumstances surrounding the arrest; (b) any possible violations of the client’s right to counsel; (c) the entire trial transcript; (d) all rulings of the trial court; (e) possible prosecutorial misconduct; (f) all jury instructions; (g) all exhibits, whether admitted into evidence or not; and (h) possible misapplication of the law in sentencing[; and]
(3)[S]end a copy of the brief to the defendant, inform the [defendant that] counsel could find no arguable issues in the record, and advise the [defendant] of his or her right to file a pro se brief.

Id. (citations omitted).

¶ 8. Hudson’s counsel complied with the requirements of Lindsey. Having reviewed the record, we cannot find any arguable issue for appeal or reversible error committed at the trial level. As such, we affirm Hudson’s conviction and sentence.

¶ 9. THE JUDGMENT OF THE LINCOLN COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF COCAINE WITH INTENT TO DISTRIBUTE AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH NINE YEARS SUSPENDED AND SIX YEARS TO SERVE, AND FIVE YEARS OF POST-RELEASE SUPERVISION, AND A $5,000 FINE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LINCOLN COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ, BARNES, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.


author: PER CURIAM. MURDOCK, Justice SHAW, Justice

text:
    TRAVELERS CASUALTY AND SURETY COMPANY et al. v. ALABAMA GAS CORPORATION.
    1110346.
    Supreme Court of Alabama.
    Dec. 28, 2012.

      Frank Winston, Jr., and Ruth S. Ko-chenderfer of Steptoc & Johnson LLP, Washington, D.C.; and Andrew J. Sinor, Jr., and John S. Johnson of Hand Aren-dall, LLC, Birmingham, for appellants.
    W. Scott Laseter of Kazmarek Geiger & Laseter LLP, Atlanta, Georgia; and Rebecca W. Pritchett and Fred R. DeLeon, Jr., of Pritchett Environmental & Property-Law LLC, Birmingham, for appellee.
    Laura A. Foggan and M. Addison Draper of Wiley Rein LLP, Washington, D.C.; and John W. Scott and Joshua S. Thompson of Scott Dukes & Geisler, PC, Birmingham, for amicus curiae The Complex Insurance Claims Litigation Association, in support of the appellants.
   PER CURIAM.

The United States District Court for the Northern District of Alabama, Southern Division (“the federal district court”), has certified to this Court the following question pursuant to Rule 18, Ala. R.App. P.:

“Under Alabama law, is a ‘Potentially Responsible Party’ (‘PRP’) letter from the Environmental Protection Agency (‘EPA’), in accordance with the Comprehensive Environmental Response Compensation and Liability Act (‘CERCLA’) provisions, sufficient to satisfy the ‘suit’ requirement under a liability policy of insurance?”

We answer this question in the affirmative.

I. Facts and Procedural History

The plaintiff in the underlying action is Alabama Gas Corporation (“Alagasco”). Defendants St. Paul Fire and Marine Insurance Company, St. Paul Surplus Lines Insurance Company, and St. Paul Mercury Insurance Company are all direct and indirect subsidiaries of defendant Travelers Casualty and Surety Company. The defendants (hereinafter sometimes collectively referred to as “Travelers”) are the providers or the predecessor to the providers of Alagaseo’s Comprehensive General Liability (“CGL”) insurance policies from the late 1940s until the early 1980s.

In its certification to this Court, the federal district court provided the following pertinent background information:

“St. Paul Fire policy .... provides that [Travelers] must:
“ ‘(a) Defend in the name and on behalf of the insured any suit against the insured alleging such injury, death, damage, or destruction and seeking damages on account thereof, even if such suit is groundless, false, or fraudulent; but [Travelers] shall have the right to make such investigation, negotiation and settlement of any claim or suit as may be deemed expedient by [Travelers].’ (emphasis added).
“Said policy applies only to ‘occurrences’ that occur during the policy period. The term ‘occurrence’ is defined in the policy to include ‘a continuous or repeated exposure during the policy period to conditions which unexpectedly and unintentionally cause ... injury to or destruction of tangible property, including the loss of use thereof.’
“From sometime in the latter half of the 19th Century until approximately 1946, gas for lighting, cooking, heating and other purposes was supplied to the customers in Huntsville, Alabama by a manufactured gas plant located near the intersection of Holmes Avenue and Dallas Avenue (the ‘Huntsville MGP’). The basic operation of the Huntsville MGP involved the superheating of coal or a combination of coke and oil in low oxygen chambers to produce gas that was then purified and fed through a gas distribution system to the citizens of Huntsville.
“In 1918 the Huntsville Gas Company was incorporated and acquired an interest in the Huntsville MGP. Alagaseo is a corporate successor to the Huntsville Gas Company. In or around 1946, Ala-gasco converted the Huntsville MGP from a gas manufacturing process to a propane air system, although on information and belief, at least some of the former gas manufacturing fixtures and facilities remained in place. Alagaseo sold the Huntsville MGP and the citywide distribution system to the City of Huntsville in 1949.
“The City of Huntsville operated the Huntsville MGP as a propane air operation until March 1952, when a natural gas pipeline reached that part of Alabama and the City converted to natural gas. The City of Huntsville continued to use the site for various purposes ancillary to its utility services until approximately 1967.
“In November 1967 the City of Huntsville conveyed the former Huntsville MGP site to an entity cooperating with the federal Department of Housing and Urban Development (‘HUD’) and the Huntsville Housing Authority. Between November 1967 and May 1970, entities working in cooperation with HUD and the Housing Authority demolished the remains of the former Huntsville MGP and, between May 1970 and April 1971, built the Searcy Homes public housing project on that site. Title to Searcy Homes passed to the Housing Authority in 1971.
“In June 1998 the parent company to [Alagaseo], Energen, alerted defendants that there were actual or potential claims arising from historical manufactured gas plant (‘MGP’) operations. This notification included the Huntsville MGP.
“Subsequently, Energen, as the ‘Policyholder,’ and St. Paul Fire and Marine Insurance Company, as the ‘Insurer,’ entered into a ‘Confidentiality Agreement for Settlement Negotiations’ (the ‘Agreement’) in February 1999. This Agreement states that Energen ‘has received or expects to receive one or more claims and/or lawsuits with respect to alleged environmental contamination.’ The second ‘WHEREAS’ clause states that ‘Policyholder asserts that losses associated with the Claims and potential Claims are covered under certain insurance policies issued to Policyholder or its predecessors by various insurers, including St. Paul Fire & Marine Insurance Company.’ The third and final ‘WHEREAS’ clause states that ‘Policyholder and Insurer wish to enter into good faith negotiations toward the possible resolution of claims.’ The Agreement further states that ‘[t]he sole and exclusive remedy of any party hereto for any alleged failure to negotiate in good faith to resolve issues during the Negotiation Period shall be cancellation of this Agreement.’ The Agreement defines ‘Negotiation Period’ as ‘extending from the date of execution of this Agreement until this Agreement is terminated by either party.’ Termination of the Agreement requires twenty-four hours written notice to the other party’s signatory. Neither Energen nor [Travelers] has ever canceled the Agreement.
“Plaintiff alleges the operations of the Huntsville MGP left behind what is considered hazardous substances under federal and state environmental laws. On October 8, 2008, plaintiff received an ‘information request’ regarding the Huntsville MGP site from the Environmental Protection Agency (‘EPA’) under the authority of section 104(e) of the Comprehensive Environmental Response, Compensation and Liability Act. Plaintiff also received a Pollution Report which stated:
“ ‘EPA’s Enforcement Section is preparing an assessment of liability and ability to pay on Potential Responsible Parties (PRPs) related to the site. If it is determined that one or more PRPs are able to complete a removal action, [the agency] may pursue an Administrative Order on Consent (AOC) with them to carry out the time-critical removal action and provide reimbursement for past costs.’ “On October 29, 2008, Alagasco for-
warded the Information Request and Pollution Report to the defendants and stated that they may constitute a claim under defendants’ policies. Alagasco additionally tendered the defense and made a demand for coverage. On November 10, 2008, defendants responded stating their belief that the EPA’s assertions did not rise to the level of a ‘formal claim’ and therefore defendants were unable to state a coverage position until ‘such a claim or lawsuit is received.’
“From October 2008 to June 2009, plaintiff and the EPA held talks regarding the site and the fact that plaintiff was the lead PRP. Plaintiff continued to update defendants on the communications with the EPA as well as demand a defense. On June 24, 2009, plaintiff received a formal Notice of Potential Liability and Offer to Negotiate from the EPA (the ‘PRP Letter’) and a draft AOC. Plaintiff forwarded the PRP Letter to defendants and again reiterated a demand for defense. Defendants twice responded saying [they were] still reviewing the file and plaintiff should act in what it believed was plaintiffs best interests. On February 3, 2010, defendants notified plaintiff that [they] did not believe any of the communications from the EPA constituted a ‘suit’ such that [they] did not believe [they] had ‘any potential defense obligations at the time.’ ”

(Citations omitted.)

On July 9, 2010, Alagasco filed in the federal district court a complaint against Travelers seeking a declaration of the rights and obligations of the parties under the CGL policies issued to Alagasco. The complaint contained allegations of breach of contract, bad faith, and waiver and es-toppel, and, in addition to seeking declaratory relief, sought monetary damages and defense costs.

Alagasco filed a motion for a partial summary judgment in the federal district court action, arguing that Travelers had a duty to defend Alagasco against the charge made by the United States Environmental Protection Agency (“the EPA”) that it is a “Potentially Responsible Party” (“PRP”). In response, Travelers filed a cross-motion for a summary judgment, arguing that it had no duty to defend Alagasco because the EPA’s PRP letter did not constitute a “suit” under the CGL policies.

Because neither the courts of this State nor any federal court applying Alabama law has ever addressed the issue whether a PRP letter from the EPA satisfies the “suit” requirement under a liability policy of insurance, and because the issue is potentially dispositive of claims in the action, the federal district court has propounded to this Court the certified question quoted at the outset of this opinion.

II. Discussion and Analysis

Before we address the question certified by the federal district court, we note that Travelers has filed a motion to strike substantial portions of Alagasco’s brief because Alagasco has requested that this Court answer a second question not asked by the federal district court. That question is:

“Whether an insurer can always claim to have a reasonably legitimate or arguable reason within the test for normal bad faith when it refuses to provide a defense under a liability policy based on a position not previously addressed by Alabama courts, even if that position is contrary to the clear and substantial majority rule outside Alabama and even if the insurer fails to offer to defend under a reservation of rights?”

As Travelers observes in its motion to strike, certified questions are proposed under Rule 18, Ala. R.App. P., which provides:

‘When it shall appear to a court of the United States that there are involved in any proceeding before it questions or propositions of law of this State which are determinative of said cause and that there are no clear controlling precedents in the decisions of the Supreme Court of this State, such federal court may certify such questions or propositions of law of this State to the Supreme Court of Alabama for instructions concerning such questions or propositions of state law, which certified question the Supreme Court of this State, by written opinion, may answer.”

(Emphasis added.) Rule 18(c) provides that “[t]he provisions of this rule may be invoked by any of the federal courts upon its own motion or upon the suggestion or motion of any interested party when approved by such federal court.” Thus, a certified question is, by definition, one that is propounded and certified to this Court by a federal court.

The only question propounded and certified to this Court by the federal district court in this case is the one stated at the outset of this opinion. The additional question posed by Alagasco has not been properly submitted to this Court, and we will not address it. Travelers’ motion to strike the portions of Alagasco’s brief discussing Alagasco’s proposed certified question is well taken and it is granted.

Turning then to the one question that has been propounded by the federal district court, we begin by observing certain fundamental principles regarding the construction of contracts of insurance in this State:

“ ‘When analyzing an insurance policy, a court gives words used in the policy their common, everyday meaning and interprets them as a reasonable person in the insured’s position would have understood them. Western World Ins. Co. v. City of Tuscumbia, 612 So.2d 1159 (Ala.1992); St. Paul Fire & Marine Ins. Co. v. Edge Mem’l Hosp., 584 So.2d 1316 (Ala.1991). If, under this standard, they are reasonably certain in their meaning, they are not ambiguous as a matter of law and the rule of construction in favor of the insured does not apply. Bituminous Cas. Corp. v. Harris, 372 So.2d 342 (Ala.Civ.App.1979). Only in cases of genuine ambiguity or inconsistency is it proper to resort to rules of construction. Canal Ins. Co. v. Old Republic Ins. Co., 718 So.2d 8 (Ala.1998). A policy is not made ambiguous by the fact that the parties interpret the policy differently or disagree as to the meaning of a written provision in a contract. Watkins v. United States Fid. & Guar. Co., 656 So.2d 337 (Ala.1994). A court must not rewrite a policy so as to include or exclude coverage that was not intended. Up ton v. Mississippi Valley Title Ins. Co., 469 So.2d 548 (Ala.1985).’
“B.D.B. v. State Farm Mut. Auto. Ins. Co., 814 So.2d 877, 879-80 (Ala.Civ.App.2001). However, if a provision in an insurance policy is found to be genuinely ambiguous, ‘policies of insurance should be construed liberally in respect to persons insured and strictly with respect to the insurer.’ Crossett v. St. Louis Fire & Marine Ins. Co., 289 Ala. 598, 603, 269 So.2d 869, 873 (1972).”

State Farm Mut. Auto. Ins. Co. v. Brown, 26 So.3d 1167, 1169-70 (Ala.2009) (emphasis added).

The word that is the focus of the federal district court’s question — “suit”—is not defined in the policies before us. Consistent with the above-stated principles, this Court also has held:

“If a word or phrase is not defined in [an insurance] policy, then the court should construe the word or phrase according to the meaning a person of ordinary intelligence would reasonably give it. The court should not define words it is construing based on technical or legal terms.”

Safeway Ins. Co. of Alabama, Inc. v. Herrera, 912 So.2d 1140, 1143 (Ala.2005) (citations omitted).

Accordingly, it is incumbent upon us to construe the term “suit” according to the meaning a person of ordinary intelligence reasonably would afford it in regard to the insurance contract at issue and the statutory and regulatory scheme that exists for the enforcement of applicable environmental laws, including the imposition of liability under those laws. In this regard, it is helpful to understand the history and nature of that scheme.

“In litigation over what constitutes a ‘suit’ triggering the insurer’s duty to defend environmental liability claims against the insured, the issue must be evaluated in light of the nature of environmental enforcement actions initiated by governmental regulatory agencies. Courts have indicated that prior to the passage of pollution control laws, which began in the late 1960s, there was no dispute over the meaning of the term ‘suit’ as used in CGL insurance policies. It was generally understood that a ‘suit’ was initiated with the traditional summons and complaint. However, as regulatory agencies commenced administrative actions against insureds to enforce environmental laws, and insureds demanded that insurers defend them against such actions pursuant to their insurance policies, the issue then arose as to whether such administrative actions constituted ‘suits’ under the terms of the policy. Most of the duty to defend insurance disputes have taken shape in the context of an insured’s potential environmental liability under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) or parallel state hazardous waste cleanup law, which imposes strict liability on companies and individuals who contributed to the environmental contamination of a given site.
“In 1980, Congress enacted CERCLA, commonly known as ‘Superfund,’ to facilitate remedial action whenever there is a release — or threatened release — of hazardous substances into the environment, and to hold responsible parties liable for any cleanup and response costs. Several broad classes of potentially responsible parties (PRPs) may be held liable for a release of hazardous substances at a given site: (1) present owners and operators of the site; (2) past owners and operators of the site; (3) generators of hazardous substances who arranged for disposal of hazardous substances at the site; and (4) transporters of hazardous substances to the site. After the U.S. Environmental Protection Agency (EPA) identifies PRPs associated with a given site, it is empowered to issue administrative orders compelling the PRPs to perform the cleanup, or the agency can perform its own cleanup and then bring an action against the PRPs to recover the cleanup costs.”

Mark S. Dennison, Annotation, What Constitutes “Suit" Triggering Insurer’s Duty to Defend Environmental Claims — State Cases, 48 A.L.R.5th 355, 365-66 (1997) (footnotes omitted).

“The CERCLA statutory scheme gives the EPA several legal methods for compelling PRPs to assume responsibility for hazardous waste cleanup. Initially, CERCLA empowers the EPA to ‘respond’ to the actual or threatened release of hazardous substances into the environment. See Section 9604, Title 42, U.S.Code. The Act then shifts liability for ‘response costs’ [defined in 42 U.S.C. § 9601(23) through 9601(25) ] to responsible parties, namely, owners and operators of hazardous waste facilities, waste generators, disposers, and transporters. See Section 9607, Title 42, U.S.Code.
“The enforcement process includes two primary methods of shifting cleanup responsibility to PRPs: (1) The CERC-LA statutory scheme provides for in-junctive relief by permitting the EPA to issue an administrative order compelling cleanup or to obtain a court order compelling the same; and (2) CERCLA also allows for restitutional relief by authorizing the EPA to expend funds from the federal Superfund to clean up toxic waste sites and subsequently institute cost recovery actions against responsible parties.
“1. Compelled, Cleanup Actions: Initially, the EPA encourages voluntary participation in the cleanup efforts through the issuance of a ‘PRP notification,’ discussed infra. If the PRP does not respond to this invitation, CERCLA Section 106(a) authorizes the EPA to issue an administrative order to compel a responsible party to clean up a site. The EPA usually first attempts to negotiate the administrative order with the PRP. If the EPA chooses to negotiate and is successful, the agreement is bound in a consent order. However, if negotiations fail, the EPA may unilaterally develop the administrative order. The issuance of this order tends to accelerate participation, as a failure to comply could subject the PRP to a fine of $25,000 ‘for each day in which such violation occurs or such failure to comply continues.’ Section 9606(b)(1), Title 42, U.S.Code.
“Section 106(a) also authorizes the EPA to seek an injunctive order. The EPA, through the Department of Justice, may file in federal district court to compel PRP cleanup under CERCLA.
“Whether the remedy sought by the EPA is administrative or judicial, the purpose of enforcement actions taken pursuant to CERCLA Section 106(a) is to get the PRPs to take the lead in site cleanup operations.
“2. Cost Recovery Actions: The EPA may decide to clean up first and ask questions later. In other words, if the PRP chooses not to participate in the cleanup operations (or simply fails to respond to the PRP notifications), CERCLA empowers the federal government to use Superfund money to clean up a site and seek reimbursement later from any responsible party it can locate. See Sections 9604(a)(1) and 9607(a), Title 42, U.S.Code. If, during the process of cleanup, the EPA issued an ‘information-gathering’ administrative order under CERCLA Section 104(e), the failure of a PRP to abide could subject the party to treble damages. See Section 9607(c)(3), Title 42, U.S.Code.”

Professional Rental, Inc. v. Shelby Ins. Co., 75 Ohio App.3d 365, 372-74, 599 N.E.2d 423, 428-29 (1991)(emphasis omitted).

Although this Court has not had occasion to address whether a PRP letter issued by the EPA constitutes a “suit” for purposes of a CGL policy, a significant number of supreme courts in other states have addressed the issue. Most of these courts have determined that a PRP letter does in fact constitute a “suit” for purposes of a CGL policy. In this regard, we find helpful and persuasive the analysis provided by the Supreme Court of Michigan in Michigan Millers Mutual Insurance Co. v. Bronson Plating Co., 445 Mich. 558, 519 N.W.2d 864 (1994):

“There is a division of opinion, both within Michigan and among other jurisdictions, regarding the definition of the term ‘suit,’ and its application to nontraditional legal proceedings. Some courts have found that ‘suit’ must refer unambiguously to a court proceeding initiated by a complaint, while others hold that the term may also encompass some nonjudicial proceedings.
“In determining what a typical layperson would understand a particular term to mean, it is customary to turn to dictionary definitions. Having canvassed a number of lay dictionaries, we note that most definitions of ‘suit’ do include a reference to some type of court proceeding, e.g., ‘the act, the process, or an instance of suing in a court of law.’ The Random House Dictionary of the English Language (1987). Nevertheless, ‘suit’ is not defined exclusively in those terms. For instance, Webster’s New World Dictionary of the American Language (2nd college ed., 1982), provides the alternative definition, ‘attempt to recover a right or claim through legal action,’ while Webster’s Third New International Dictionary of the English Language (1964), defines suit as ‘the attempt to gain an end by legal process: prosecution of a right before any tribunal.’
“We ... note that a broader definition of the term ‘suit’ reflects more accurately the modern realities of our legal system. As the legal community and state and federal legislatures struggle to relieve the ever-increasing burdens on our courts and the constantly rising costs of litigation, a gravitation is evident toward less formal and more expeditious means of dispute resolution. This movement has manifested itself in the growing use of arbitration, as well as increased authority given to administrative agencies to resolve disputes, so that the functional equivalents of suits brought in a court of law have developed. As is discussed in more detail below, this point is particularly valid in the context of CERCLA actions, where the Legislature has deliberately and painstakingly developed a system in which a PRP has every incentive to ‘voluntarily5 cooperate with the EPA, before actual litigation, and where significant legal prejudice may develop if the PRP fails to do so.
“Therefore, we find the term ‘suit’ as used in the insurance policies at issue, to be ambiguous and capable of application to legal proceedings initiated in other than a traditional court setting.
“Having determined that the term ‘suit’ is capable of application to nonjudicial legal proceedings, we must next determine whether the PRP letter received by Bronson did, in fact, constitute the initiation of a suit under the subject insurance policies. Once again, the jurisdictions are split on this issue.
“Some courts have found that a typical PRP letter from the EPA constitutes the initiation of a suit, thereby giving rise to the duty to defend. Those courts have emphasized the particular nature of CERCLA-related actions, and the unique authority given to the EPA to develop an essentially binding record and to design and implement actions that the PRPs may later be held liable for. See, e.g., Coalcley v. Maine Bonding & Casualty Co., 136 N.H. 402, 416-419, 618 A.2d 777 (1992); Hazen Paper Co. v. United States Fidelity & Guaranty Co., 407 Mass. 689, 696-699, 555 N.E.2d 576 (1990).
“In contrast, other jurisdictions have declined to impose a duty to defend absent a more definitive and directive EPA action, e.g., an order to undertake site investigation or cleanup. Those courts have tended to focus on the ‘voluntary’ participation sought by the EPA, as well as the lack of certainty that litigation would ensue if the PRP failed to comply. See, e.g., Ryan v. Royal Ins. Co. of America, 916 F.2d 731, 741 (C.A.1 1990); Avondale Industries, Inc. v. Travelers Indemnity Co., 887 F.2d 1200, 1206 (C.A.2 1989), cert. den., 496 U.S. 906, 110 S.Ct. 2588, 110 L.Ed.2d 269 (1990).
“In determining whether a ‘suit’ was initiated in the present ease, we must examine the contents of the PRP letter received by Bronson. In pertinent part, that letter informed Bronson that the EPA had identified it as a potentially responsible party for contamination at the North Bronson Industrial Area. Barring an immediate offer from any of the PRPs to conduct a remedial investigation and feasibility study (RI/FS), the EPA would undertake to complete one. If the EPA did so, under the terms of 42 U.S.C. § 9607(a), Bronson could be held jointly and severally liable for ‘all costs associated with the removal or remedial action and all other necessary costs incurred in cleaning up the site, including investigation, planning and enforcement.’ Further, the EPA required Bronson to submit documentation regarding any waste it had released onto the site. Failure to comply with this demand could result in civil action and fines.
“Taking into account the various components of this PRP letter and its ramifications, we find that the legal proceeding initiated by the receipt of that notice is the functional equivalent of a suit brought in a court of law. Of critical importance is the creation of the administrative record and the i*ole it may play in future litigation. Documentation sought by the EPA, and which Bronson must produce under the force of law, will determine the amount and type of waste generated by Bronson and discharged onto the site. Given the strict liability stance of CERCLA, this information is all that is needed to establish both the fact and proportional share of Bronson’s liability at the site.
“Moreover, because the EPA may implement any investigatory and remedial action it deems necessary at the site, subject only to an abuse of discretion review, the total cost of the project will also be determined before litigation is brought. The significant authority given to the EPA in such matters allows it essentially to usurp the traditional role of a court of law in determining and apportioning liability. Such matters are concluded by the EPA before the action is ever brought to court.
“The EPA’s powers may also be viewed as coercing the ‘voluntary’ participation of PRPs. The entire CERC-LA scheme revolves around ‘encouraging’ PRPs to engage in voluntary cleanups. Only in so doing may a PRP have a voice in developing the record that will be used against it and in determining the amount of its liability through selection of investigatory and remedial methods and procedures. The significance of these incentives is underscored by the fact that EPA-conducted CERCLA actions have historically been considerably and, some would suggest, needlessly more expensive than those actions conducted by PRP groups.
“Finally, we note, from a policy perspective, that the position urged by defendants would only increase the litigiousness of this already extensively litigated area of the law. Limiting an insurer’s duty to defend to an actual court proceeding preceded by a complaint would merely encourage PRPs to decline ‘voluntary’ involvement in site cleanups, waiting instead for an actual lawsuit to be brought in order to receive insurance coverage. This would have the effect of substantially protracting the cleanup of contaminated sites.
“We find that the term ‘suit,’ as used in the insurance policies at issue, is ambiguous and capable of application to nontraditional legal actions that are the functional equivalent of a suit brought in a court of law. We further hold that, under this definition, the PRP letter received by Bronson constituted the initiation of a ‘suit’ that the insurers were obliged to defend under the terms of their insurance policies.”

445 Mich, at 567-75, 519 N.W.2d at 869-72 (some emphasis added; some footnotes omitted).

Similarly, in Hazen Paper Co. v. United States Fidelity & Guaranty Co., 407 Mass. 689, 555 N.E.2d 576 (1990), we find this helpful discussion:

“Since the standard [CGL] policy language was drafted, the EPA processes for the enforcement of obligations to aid in the cleaning up of environmental pollution have moved away from the use of lawsuits toward the use of agency demands for participation in remedial action. Those requests are dangerous for the alleged polluter to ignore because they often result in dispositive, extrajudicial solutions. The consequences of the receipt of the EPA letter were so substantially equivalent to the commencement of a lawsuit that a duty to defend arose immediately. The EPA letter was not the equivalent of a conventional demand letter based on a personal injury claim. See Aetna Casualty & Sur. Co. v. Gulf Resources & Chem. Corp., 709 F.Supp. 958, 960 (D.Idaho 1989) ....
“Hazen’s obligation to respond positively to the EPA letter was strong. The prospects of avoiding financial responsibility were minimal because liability is not based on fault (§ 9607[a] [1982 & Supp. V 1987]) and the available defenses are very limited (§ 9607[b]). Moreover, the risk to which Hazen was exposed was substantial because, as a practical matter, its liability is joint and several. See O’Neil v. Picillo, 883 F.2d 176, 178-179 (1st Cir.1989), cert. denied sub nom. American Cyanamid Co. v. O’Neil, 493 U.S. 1071 ... (1990). Early involvement in the settlement discussions is thus often crucial to protect one’s interests. Any court action by EPA is limited to the administrative record (§ 9613[j][l] [1982 & Supp. V 1987]), and judicial review considers only whether the EPA ‘decision was arbitrary and capricious or otherwise not in accordance with law1 (§ 9613[j][2]). Thus participation in the development of that record can be crucial. Settlement of EPA claims against potentially responsible parties (see §§ 9613[f][2], 9622[d]), with protection against claims for contribution (§ 9613[f][2]), is a desired goal. The situation was such that the opportunity to protect Hazen’s interests could well have been lost, long before any lawsuit would be brought. It would be naive to characterize the EPA letter as a request for voluntary action. Hazen had no practical choice other than to respond actively to the letter.”

407 Mass, at 695-97, 555 N.E.2d at 580-82 (footnotes omitted).

Finally, the Supreme Court of Nebraska recently analyzed the issue as follows:

“Continental [the insurer] argues that letters or administrative orders of environmental agencies are not ‘suits’ triggering a duty to defend, relying on Foster-Gardner, Inc. v. Nat. Union Fire Ins., 18 Cal.4th 857, 959 P.2d 265, 77 Cal.Rptr.2d 107 (1998). In that ease, the insured was ordered by the state EPA to remediate pollution. The insured sued its insurers when they refused to defend. The insurers argued that the word ‘suit,’ as used in the policies, meant ‘a civil action commenced by filing a complaint. Anything short of this is a “claim.” ’ Id. at 878, 959 P.2d at 279, 77 Cal.Rptr.2d at 121. The court stated that the policies at issue required the insurers to defend a ‘suit’ but that the policies allowed discretion to investigate and settle a ‘claim.’
“The trial court concluded that a PRP letter is akin to a ‘suit,’ based upon ‘the severity and significant repercussions’ if Dutton took no action. It noted that insurance companies such as Continental which insure for this type of damage have common knowledge of the outcome when the EPA is involved in addressing contaminations. The court relied on two cases: Aetna Cas. and Sur. Co., Inc. v. Pintlar Corp., 948 F.2d 1507 (9th Cir. 1991), and Anderson Development Co. v. Travelers Indem. Co., 49 F.3d 1128 (6th Cir.1995).
“In Aetna Cas. and Sur. Co., Inc. v. Pintlar Corp., 948 F.2d at 1517, the court held:
“ ‘[T]he EPA’s administrative claims against the insureds triggered insurers’ duty to defend. Coverage should not depend on whether the EPA may choose to proceed with its administrative remedies or go directly to litigation. A fundamental goal of CERC-LA [Comprehensive Environmental Response, Compensation, and Liability Act of 1980] is to encourage and facilitate voluntary settlements. Interim Guidance on Notice Letters, Negotiations, and Information Exchange, EPA Memorandum, 53 Fed. Reg. 5298 (1988). It is in the nation’s best interests to have hazardous waste cleaned up effectively and efficiently. But the insured is not required to submit to, and may in fact wish to oppose[,] the threat. In either event, the insurer’s duty to defend may well be triggered.’
“The federal court stated that a PRP notice differs from a ‘garden variety demand letter’ in that it carries ‘immediate and severe implications,’ rather than simply exposing a party to a potential threat of future litigation. Aetna Cas. and Sur. Co., Inc. v. Pintlar Corp., 948 F.2d at 1516. ‘[T]he PRP’s substantive rights and ultimate liability are affected from the start of the administrative process.’ Id.
The court further noted that it may be ‘more prudent for the PRP to undertake the environmental studies and cleanup measures itself than to await the EPA’s subsequent suit in a cost recovery action.’ Id. at 1517. ‘Lack of cooperation may expose the insured, and potentially its insurers, to much greater liability, including the EPA’s litigation costs.’ Id. As a result, ‘an “ordinary person” would believe that the receipt of a PRP notice is the effective commencement of a “suit” necessitating a legal defense.’ Id. Tf the threat is clear then coverage should be provided. The filing of an administrative claim is a clear signal that legal action is at hand.’ Id. at 1518.
“In Anderson Development Co. v. Travelers Indent. Co., 49 F.3d at 1132, the federal court applied a recent Michigan case in which the state court determined that a PRP letter ‘constituted the initiation of a suit triggering [the insurer’s] duty to defend.’ The federal court agreed with the state court’s conclusion that a PRP letter issued by the EPA can be considered the ‘functional equivalent of a “suit” brought in a court of law.’ Id. at 1131 [ (applying Michigan Millers Mut. Ins. Co. v. Bronson Plating Co., 445 Mich. 558, 565, 519 N.W.2d 864, 868 (1994)) ].
“... We agree with the rationale in Aetna Cas. and Sur. Co., Inc. v. Pintlar Corp., supra, and Anderson Development Co. v. Travelers Indent. Co., supra. Whether an insurer is required to provide coverage on a policy should not be dependent on whether the EPA proceeds with administrative remedies or files litigation. A PRP letter is the functional equivalent of a ‘suit’ as described in the insurance policies, and[,] therefore, the insurers had a duty to defend Dutton. The PRP letter from the EPA carried with it the EPA’s coercive powers. Dutton conducted an investigation to determine whether it was a PRP and determined that it was. Dutton proceeded to plan for remediation and developed new methods in an attempt to save further expense.
“The term ‘suit’ can be readily understood to apply to actions that are the functional equivalent of a suit filed in a court of law. The PRP letter advised Dutton that it was immediately at risk. If Dutton declined the necessary response, its substantive rights and ultimate liability were affected from the receipt of the PRP letter. As noted in Aetna Cas. and Sur. Co., Inc. v. Pintlar Co'i'p., 948 F.2d 1507 (9th Cir.1991), an ordinary person would believe that the receipt of a PRP letter was in effect the commencement of a suit. The language of an insurance policy should be considered in accordance with what a reasonable person in the position of the insured would have understood it to mean. The threats of the letter were clear and carried immediate implications. The trial court was correct in finding there was a ‘suit.’ Continental’s cross-appeal on this issue has no merit.”

Dutton-Lainson Co. v. Continental Ins. Co., 279 Neb. 365, 381-85, 778 N.W.2d 433, 446-49 (2010) (citation omitted).

As noted, we find the reasoning employed by a majority of the supreme courts of our sister states, as typified by the opinions quoted above, to be persuasive. The authority given the EPA in regard to determining liability on the part of PRPs, while not absolute, is very nearly so. Given the severe penalties for failure to cooperate and other enforcement tools available to the EPA, a decision by the EPA to designate an insured as a PRP cannot on any practical level be understood as anything less that the initiation of a “legal action” constituting a “suit” within the contemplation of the insurance contract at issue.

A contrary decision by us — and, in particular, a decision to focus solely upon those dictionary definitions of “suit” that refer to “court” proceedings to the exclusion of those that more broadly reference “legal actions” and, especially, “attempts to gain an end by legal process” — would put us at odds with the substantial body of sound precedent to the effect that the term “suit” in CGL policies includes arbitration proceedings. See, e.g., Michigan Millers, 445 Mich, at 585, 519 N.W.2d at 876; Vaubel Farms, Inc. v. Shelby Farmers Mut., 679 N.W.2d 407 (Minn.Ct.App.2004).

Furthermore, relying upon such definitions simply would be irreconcilable with “ ‘[t]he vast majority of courts around the United States [that] have found that all kinds of coercive administrative actions are “suits” covered by general liability insurance policies.’ ” State v. CNA Ins. Cos., 172 Vt. 318, 324, 779 A.2d 662, 667 (2001) (quoting Governmental Interinsurance Exch. v. City of Angola, 8 F.Supp.2d 1120, 1130 (N.D.Ind.1998)). The Supreme Court of North Carolina, for example, has noted that so-called “compliance orders,” although not issued by a court, are in fact “an attempt by the State to ‘gain an end by legal process.’ ” CD. Spangler Constr. Co. v. Industrial Crankshaft & Eng’g Co., 326 N.C. 133, 154, 388 S.E.2d 557, 570 (1990); see also A.Y. McDonald Indus., Inc. v. Insurance Co. of N. Am., 475 N.W.2d 607 (Iowa 1991). Of particular relevance for our purposes, the Supreme Court of North Carolina further observed:

“Reading the policies as a whole and assuming none of the exclusions apply, we find that a ‘reasonable person in the position of the insured’ may not have understood the term ‘suit’ as limiting appellees’ duty to defend until a court proceeding had been instigated. See Grant v. Insurance Co., 295 N.C. [39,] 43, 243 S.E.2d [894,] 897 [ (1978) ]; Financial Services v. Capitol Funds, 288 N.C. [122,] 143, 217 S.E.2d [551,] 565 [ (1975) ]. Because this Court must give effect to reasonable interpretations which favor the policyholder, we conclude that the term ‘suit’ as used in the policies covers the compliance orders. See Woods v. Insurance Co., 295 N.C. [500,] 506, 246 S.E.2d [773,] 777 [ (1978) ].”

C.D. Spangler, 326 N.C. at 154-55, 388 S.E.2d at 570 (emphasis added).

For the foregoing reasons, we answer in the affirmative the question certified to this Court.

MOTION TO STRIKE GRANTED; QUESTION ANSWERED.

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

MURDOCK, SHAW, and WISE, JJ., dissent.

MURDOCK, Justice

(dissenting).

Consistent with the views expressed in my dissent to the opinion of this Court in Nationwide Mutual Insurance Co. v. Thomas, 103 So.3d 795, 807 (Ala.2012) (Murdock, J., dissenting), I would decline to answer the certified question before us.

SHAW, Justice

(dissenting).

I respectfully would decline to answer the certified question, which calls for the interpretation of the language of an insurance policy. “[T]his Court may answer questions from federal courts only where ‘there are no clear controlling precedents’ and the answer to the question is ‘determinative of said cause.’ Construing an insurance policy treads no new ground under Alabama law, and precedent determinative of such an analysis is well settled.” Stewart Title Guar. Co. v. Shelby Realty Holdings, LLC, 83 So.3d 469, 472 (Ala.2011) (quoting Rule 18, Ala. R.App. P. (emphasis added)). See also Public Bldg. Auth. of Huntsville v. St. Paul Fire & Marine Ins. Co., 80 So.3d 171, 180 (Ala.2010) (“[T]he interpretation of a contract does not present a novel legal issue. Rather, the rules of contract construction and interpretation are well established in Alabama .... ”). Although this Court has answered certified questions regarding whether a particular interpretation of an insurance policy might violate Alabama law, see Holcim (US), Inc. v. Ohio Cas. Ins. Co., 38 So.3d 722 (Ala.2009), I would adhere to the holding of Stewart Title that this Court should decline to answer certified questions seeking simply the meaning of language in contracts.

WISE, J., concurs.

      1. The issue whether the facts in this case give rise to an “occurrence” within the meaning of the policy is not before this Court.

      . The parties disagree as to the exact number of supreme courts on each side of the issue, but it appears that at least 10 state supreme courts have held that PRP letters or a letter from the state’s environmental agency equivalent of the EPA constitutes a "suit” and at least 2 others have held that a court action is not necessary to satisfy the "suit” requirement in a standard CGL policy. Three state supreme courts have concluded that PRP letters are not "suits.” The courts that constitute the majority joined by this Court today include those of Nebraska, Connecticut, Kentucky, Wisconsin, Colorado, Vermont, Minnesota, Michigan, New Hampshire, and Massachusetts. See Dutton-Lainson Co. v. Continental Ins. Co., 279 Neb. 365, 778 N.W.2d 433 (2010); R.T. Vanderbilt Co. v. Continental Cos. Co., 273 Conn. 448, 870 A.2d 1048 (2005); Aetna Cas. & Sur. Co. v. Commonwealth, 179 S.W.3d 830 (Ky.2005); Johnson Controls, Inc. v. Employers Ins. of Wausau, 264 Wis.2d 60, 665 N.W.2d 257 (2003); Compass Ins. Co. v. City of Littleton, 984 P.2d 606 (Colo.1999); State v. CNA Ins. Cos., 172 Vt. 318, 324, 779 A.2d 662, 667 (2001); SCSC Corp. v. Allied Mut. Ins. Co., 536 N.W.2d 305 (Minn.1995), overruled on other grounds by Bahr v. Boise Cascade Corp., 766 N.W.2d 910 (Minn.2009); Michigan Millers Mut. Ins. Co. v. Bronson Plating Co., 445 Mich. 558, 519 N.W.2d 864 (1994), overruled on other grounds by Wilkie v. Auto-Owners Ins. Co., 469 Mich. 41, 664 N.W.2d 776 (2003); Coakley v. Maine Bonding & Cos. Co., 136 N.H. 402, 618 A.2d 777 (1992); and Hazen Paper Co. v. United States Fid. & Guar. Co., 407 Mass. 689, 555 N.E.2d 576 (1990). See also C.D. Spangler Constr. Co. v. Industrial Crankshaft & Eng’g Co., 326 N.C. 133, 154, 388 S.E.2d 557, 570 (1990) (holding that state environmental compliance orders "were an attempt by the State to 'gain an end by legal process’ ” and therefore constituted a “suit” for purposes of the insured's CGL policy); and A.Y. McDonald Indus., Inc. v. Insurance Co. of N. Am., 475 N.W.2d 607 (Iowa 1991) (to similar effect).
      The state supreme courts that have adopted the minority view include those of California, Illinois, and Maine. See Foster-Gardner, Inc. v. National Union Fire Ins. Co., 18 Cal.4th 857, 959 P.2d 265, 77 Cal.Rptr.2d 107 (1998); Lapham-Hickey Steel Corp. v. Protection Mut. Ins. Co., 166 Ill.2d 520, 211 Ill.Dec. 459, 655 N.E.2d 842 (1995); and Patrons Oxford Mut. Ins. Co. v. Marois, 573 A.2d 16 (Me.1990).
      In addition, courts of appeal and some federal courts have addressed the issue, with divided results.

      “ 8Some courts have found this division of authority to be, itself, conclusive evidence that ambiguity exists. See, generally, anno: Division of opinion among judges on same court or among other courts or jurisdictions considering same question, as evidence that particular clause of insurance policy is ambiguous, 4 A.L.R.4th 1253. We do not adopt that view. Nevertheless, we do find the division of authority to be instructive and to at least lend credence to the position that more than one reasonable interpretation of the term exists. C. & J. Commercial Driveway, Inc. v. Fidelity & Guaranty Fire Corp., 258 Mich. 624, 629, 242 N.W. 789 (1932) (A split of authority demonstrates ‘at least that [the term] is of doubtful meaning and requires construction’).

      “ 10Even outside the environmental arena, courts have defined the term ‘suit’ broadly and found it to encompass arbitration, Madawick Contracting Co. v. Travelers Ins. Co., 307 N.Y. 111, 117-119, 120 N.E.2d 520 (1954), and administrative proceedings. Solo Cup Co. v. Federal Ins. Co., 619 F.2d 1178, 1188, n. 7 (7th Cir.1980), cert. den., 449 U.S. 1033, 101 S.Ct. 608, 66 L.Ed.2d 495 (1980); Campbell Soup Co. v. Liberty Mutual Ins. Co., 239 N.J.Super. 488, 496-499, 571 A.2d 1013 (1988), aff'd, 239 N.J.Super. 403, 571 A.2d 969 (1990); School Dist. No. 1, Multnomah Cty. v. Mission Ins. Co., 58 Or.App. 692, 703-704, 650 P.2d 929 (1982); Community Unit School Dist. No. 5 v. Count[r]y Mutual Ins. Co., 95 Ill.App.3d 272, 278-279, 50 Ill.Dec. 808, 419 N.E.2d 1257 (1981).

      “ 11There is no question that PRPs, as well as the government, could benefit from less litigation in this area. The transaction costs related to ameliorating a CERCLA site can be staggering. In a recently published study, the experiences of 108 PRPs at eighteen superfund sites were examined. It was concluded that those PRPs spent an average of $1.24 million on site-related costs between 1981 and 1991. Of that amount, some twenty-one percent, or $260,000 per PRP was spent on transaction costs, primarily legal fees. Dixon, Drezner & Hammitt, Private-sector cleanup expenditures and transaction costs at 18 Superfund sites (RAND, 1993).

      “ 12See, generally, note, The best equitable defense is a good offense, 29 Nat. Resources J. 849 (1989).

      “ 13In making this determination, we are cognizant of the concern raised by the insurers that a decision in plaintiffs favor might blur the distinction between ‘claim’ and ‘suit’ evidenced in their insurance policies. While the policies reserve for the insurer the right to investigate any ‘claim,’ the insurers’ duty to defend extends only to a ‘suit.’ In response to this concern, we wish to emphasize that this opinion should in no way be viewed as intimating that evei’y request for relief should be considered the initiation of a suit that the insurers are obliged to defend. Rather, our determination on this issue is made primarily based on the unique aspects of CERCLA actions and the authority given to EPA under the statute. As explained by the Ninth Circuit Court of Appeals in Aetna Casualty & Surety Co., Inc. v. Pintlar Corp., 948 F.2d 1507, 1516-1517 (9th Cir.1991):
      “ ‘Unlike the garden variety demand letter, which only exposes one to a potential threat of future litigation, a PRP notice carries with it immediate and severe implications. Generally, a party asserting a claim can do nothing between the occurrence of the tort and the filing of the complaint that can adversely affect the insureds’ rights. However, in a CERCLA case, the PRP’s substantive rights and ultimate liability are affected from the start of the administrative process. Avondale Industries, Inc. v. Travelers Indem. Co., 697 F.Supp. 1314, 1321 (S.D.N.Y., 1988) (“Adverse consequences can befall an insured during the administrative pollution cleanup process”), aff'd 887 F.2d 1200 (2nd Cir.1989).’
      “Accordingly, we do not disturb the basic claim/suit distinction contained within the subject insurance policies.

      “ 14 42 U.S.C. § 9607(a). Defenses to CERCLA liability are virtually nonexistent. 42 U.S.C. § 9607(b).

      “ 15 42 U.S.C. § 9613(j)(2) provides that the government’s selection of a response action will be upheld ‘unless the objecting party can demonstrate, on the administrative record, that the decision was arbitrary and capricious or otherwise not in accordance with law.’