author: THOMAS, Judge.

text:
    Heather Maria McGONAGLE v. Robert Allen McGONAGLE.
    2150136.
    Court of Civil Appeals of Alabama.
    May 20, 2016.
    Rehearing Denied July 8, 2016.
    Certiorari Denied Sept. 16, 2016 Alabama Supreme Court 1151103. •
    Brian A. Dasinger, Fairhope, for appellant.
    Patrick B. Collins, Daphne, for appellee.
   THOMAS, Judge.

Heather Maria McGonagle (“the mother”) appeals from a judgment of the Baldwin Circuit Court awarding sole physical custody of the parties’ child to Robert Allen McGonagle (“the father”). Because we determine that the circuit court lacked subject-matter jurisdiction to enter the judgment, we dismiss the appeal.

Background

The child was born on May 14, 2012. The mother and the father were divorced by a judgment of the circuit court in March 2013. The divorce judgment incorporated an agreement between the parties, in which they agreed that they would share joint legal custody of the child and that the mother would exercise sole physical custody of the ehild.

In April 2013, the father was deployed to Kyrgyzstan by the United States Air Force. He returned from his deployment in November 2013 and began to live in Fort Walton Beach, Florida. He testified that he lived by himself until March or April 2014, when he began to live with his girlfriend, LeeAnn. He and LeeAnn were married four months later. He continued to live in Fort Walton Beach until November 2014, when he moved to Eglin Air Force Base in Florida. He then moved to Houston, Texas, in June 2015.

The mother testified that she had left the marital residence in approximately August 2012, when she and the father separated, and had begun living with her parents in Foley, Alabama. She testified that, during that period, she and the child at least occasionally “stayed with” Roy Cruise. The location of Cruise’s residence is not clearly stated in the record, but it appears that it was located in Alabama. The mother stated that she had been engaged to many Cruise but that their relationship ended after four or five months. She testified that she and the child had begun living with Henry Centeno sometime “between late spring and summer” of 2013. When asked where Centeno lived, the mother testified: “Destín.... It’s in conjunction with Fort Walton.” The father testified that Centeno lived in Fort Walton Beach, Florida. The mother stated that she and the child had lived with Centeno for approximately nine months to one year and that she believed that their relationship had ended in late 2013.

The mother further testified that she began a relationship with Edward Arvizu in late January or early February 2014, but the father testified that she told him about her relationship with Arvizu a couple of weeks before he returned from his deployment in November 2013. The mother stated that she and the child had begun living with Arvizu in Crestview, Florida, when they began dating. The mother testified that she had dated Arvizu for approximately one month before they were married in March 2014. In April 2014, Arvizu was deployed to Afghanistan by the United States Army. The mother testified that her relationship with Arvizu had become troubled sometime during May or June 2014. Nevertheless, she and the child continued to stay in the marital residence while Arvizu was deployed. During that time, she and the child at least occasionally stayed with her friend, Jessica, at Jessica’s mother’s residence. The father testified that Jessica lived in Fort Walton Beach, Florida.

The mother testified that, toward the end of September 2014, she and the child began to live with Centeno again. Although the mother testified that Centeno had purchased a house since their previous separation, there was no evidence indicating that he had moved to Alabama from Florida.. Arvizu returned from his-¡deployment in October 2014, and he and the mother1 were divorced around that time. The mother and Centeno were married in February 2015.

The mother provided the following testimony upon examination by the father’s attorney at the hearing:

“Q: All right. And I’m going to try— some of this, I’ve covered, I’m going to—bear with me for a minute. I’m going to try to get—So you went from Eglin Ah* Force base .with [the father], -right?
.“A: ¡Yes.
‘Q: To Foley, to [Centeno’s] in Destín, to [Arvizu’s] in Crestview, and back to Foley?
“A: Nope.
“Q: Okay. Didn’t—you went straight from [Arvizu’s] to [Centeno’s]?
“A: ' Yes.
“Q: And then mixed in there was some staying some time—
“A: I spent a lot of time with Jessica and her family.
“Q: Yes. And with Roy Cruise. You stay there a.lot?
“A: Yes, we stayed together—
“Q: Then you stayed with your family some in Foley, I suppose?
“A: Yes, I visit my family quite often. I- would 'say twice a week—or twice a month, I visit my family.
“Q: All right. You know, I believe that you—also in August 2014, which would have been about the time—just shortly before the time that you were struggling with where to go, you also went to Hawaii with another man, didn’t you?
“A: . That was in 2013,
“Q: That was in 2013?
“A: I believe so.
“Q: Okay.
“A: I can’t remember the exact year. But yes, I did fly out to Hawaii with a friend of mine.
“Q: And you stayed with him for how long?
“A: A week.”

On November 12, 2014, the father petitioned the circuit court, seeking a modification of the custody arrangement set out in the divorce judgment. Among other things, the’ father alleged that “a material change in circumstances ha[d] occurred and it [wa]s in the best interest of the minor child that the father have ,.. sole [physical] custody.” He alleged that the mother’s lifestyle, specifically her decisions to live in multiple locations and to cohabit with men to whom she was not married, had prevented her from being able to provide a stable environment for the child.

Among other things, the father asked the circuit court to award him “legal and physical custody of the minor child or, in the alternative, that the joint custody continue with the father having [sole] physical custody.” The mother answered the father’s petition, admitting his allegations regarding the “ages; residences, marital status and children of the parties” and denying the other allegations made in his petition.

After discovery, the circuit court held a hearing on July 24, 2015. On July 28, 2015, the circuit court entered an order concluding that “the [m]other’s frequent home changes constitute a material issue of a continuing nature.” Among other things, the circuit court awarded the parties joint legal custody and awarded the father sole physical custody. The circuit court also ordered the parties to calculate child support and to submit the necessary forms within 14 days.

In response to the circuit court’s order, the mother filed a motion, arguing, among other things, that the circuit court lacked jurisdiction to modify the custody arrangement and stating: “Both of the parties had lived in Florida for more than six months preceding the filing of this action. Therefore, proper jurisdiction should have been the Florida courts.” She also argued that there was insufficient evidence to support the circuit court’s finding that a material change in circumstances had occurred, and she argued that the father had failed to meet the custody-modification standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984) (“the McLendon standard”).

The father responded to the mother’s motion and submitted to the circuit court excerpts from the mother’s deposition; those excerpts, containing examination by the father’s attorney, provide, in pertinent part:

“Q: Have you ever been to Hawaii?
“A: Yes.
“Q: When did you go to Hawaii?
“A: I don’t remember the exact time. Maybe August.
“Q: Of'14?
“A: Yes.
ti
“Q: And you went out there, you said, August of '14?
“A: Uh-huh.
“Q: Was that in between living at [Ar-vizu’s] and [Centeno’s], or was that while you were at [Centeno’s] or [Arvizu’s]?
“A: That was before [Centeno].
“Q: Were you still at [Arvizu’s] when you went out to Hawaii?
“A: No. That was before [Centeno] and I was together. It was before [Centeno] or [Arvizu] and I lived together.
“Q: Okay. Well, you said you went to Hawaii in August of 2014.
“A: It might have been 2013. I’m not sure. Let me think. Maybe 2014, yeah. “[The mother’s attorney]: 2014 was just six months ago. 2013 would have been a year-and-a-half ago.
“[The mother]: Maybe a year-and-a-half ago then.
“[The mother’s attorney]: It would have been while the two of you were separated, but the divorce had not been signed yet.
“[The mother]: No. We were already divorced. So I—
“[The father’s attorney]: I would rather get your' testimony, really, than your attorney. I want to know what you remember. And that’s okay, I understand you’re trying to remember.
“A: I’m just trying to remember dates, because they’re—I don’t remember exactly. I never thought I would have a use for remembering.
«
“Q: And you were living where at this time?
“A: I believe I was living with my parents.”

On September 25, 2015, the circuit court heard arguments on the mother’s motion and denied it that same day. The circuit court did not make any specific factual findings in its order denying the mother’s motion. On October 6, 2015, the circuit court entered a final judgment, which included an award of child support and in which it again found that the mother had made “frequent home changes” but did not otherwise recite any specific factual findings.

The mother timely filed a notice of appeal, arguing: (1) that the circuit court did not have jurisdiction to enter its judgment and (2) that the custody arrangement should not have been modified because the McLendon standard was not met. Because we conclude that the circuit court lacked subject-matter jurisdiction to modify the original custody determination, we do not address the mother’s second argument.

Standard of Review

Whether the circuit court had subject-matter jurisdiction to modify its prior custody determination is a strictly legal question that is subject to de novo review. Winford v. Winford, 139 So.3d 179, 181 (Ala.Civ.App.2013). “The jurisdiction of an Alabama court to modify a prior custody determination depends on the provisions of the Uniform Child Custody Jurisdiction and Enforcement Act ..., Ala.Code 1975, § 30-3B-101 et seq.” Baker v. Baker, 25 So.3d 470, 472 (Ala.Civ.App.2009).

Whether a court has jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (“the UC-CJEA”), § 30-3B-101 et seq., Ala.Code 1975, potentially depends on the resolution of several factual questions. See Baker, 25 So.3d at 473-74 (discussing the requirements of the UCCJEA and summarizing the applicable evidence necessary to establish jurisdiction). “When evidence in a child custody case has been presented ore tenus to the trial court, that court’s findings of fact based on that evidence are presumed to be correct.” Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996). “[W]e will not reverse unless the evidence so fails to support the determination that it is plainly and palpably wrong, or unless an abuse of the trial court’s discretion is shown.” Phillips v. Phillips, 622 So.2d 410, 412 (Ala.Civ.App.1993).

Analysis

On appeal, the mother argues that the circuit court did not have jurisdiction to enter its judgment because, she asserts, “neither party was a ‘bona fide resident’ of the State of Alabama” for six months next before the filing of the father’s petition, as is required by § 30-2-5, Ala.Code 1975. In response, the father correctly explains that § 30-2-5 applies to divorce proceedings and not to custody-modification proceedings. He therefore urges this Court to dismiss the mother’s appeal for failure to comply with Rule 28(a)(10), Ala. R.App. P.

However, ‘“jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.’” Baker, 25 So.3d at 472 (quoting Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987)). Therefore, we must decide whether the circuit court had subject-matter jurisdiction under the UCCJEA.

The UCCJEA provides, in pertinent part:

“(a) Except as otherwise provided in Section 30-3B-204, [Ala.Code 1975,] a court of this state which has made a child custody determination consistent with Section 30-3B-201 or Section 30-3B-203E, Ala.Code 1975,] has continuing, exclusive jurisdiction over the determination until:
“(1) A court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships; or
“(2) A court of this state or a court of another state determines that the child, the child’s parents; and any person acting as a parent do not presently reside in this state.
“(b) A court of this state which has made a child custody determination and does not have continuing, exclusive jurisdiction under this section may modify that determination only of it has jurisdiction to make an initial determination under Section 30-3B-201.”

§ 30-3B-202, Ala.Code 1975.

The circuit court did not address the UCCJEA in its judgment, nor did it make any specific factual findings in support of its conclusion that it had jurisdiction to modify the original custody determination. “It is ... well established that in the absence of specific findings of fact, appellate courts will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous.” Bryowsky, 676 So.2d at 1324. Thus, in order for the circuit court to conclude that it had continuing, exclusive subject-matter jurisdiction, it must have found that either the child or at least one of the parents presently resided in Alabama. See § 30-3B-202(a)(2). To the extent that the circuit court impliedly made such a finding, however, that finding is not supported by the record.

The father filed his modification petition on November 12, 2014. He testified that he had moved from Fort Walton Beach, Florida, to Eglin Air Force Base in Florida in November 2014 and then to Houston, Texas, in June 2015. It is therefore undisputed that the father was not residing in Alabama when he filed his petition or when the circuit court conducted the hearing. The mother testified that she and the child moved from Arvizu’s residence in Crestview, Florida, to Centeno’s residence in Fort Walton Beach, Florida, toward the end of September 2014. She married Cen-teno in February 2015, and no evidence was presented demonstrating that she or the child had moved since September 2014. At the hearing, the mother testified that she was- currently living in Fort Walton Beach, Florida. Thus, it is undisputed that the mother and child were not “presently resid[ing] in [Alabama]” when the father filed his petition or when the circuit court conducted its hearing. See § 30-3B-202(a)(2).

The circuit court should have therefore determined that it had lost continuing, exclusive subject-matter jurisdiction to modify its March 2013 custody determination under § 30-3B-202(a)(2). See Baker, 25 So.3d at 473.

“Once- a court loses continuing, exclusive jurisdiction to modify a custody determination, § 30-3B-202(b) provides that a trial court ‘may modify that determination only if it has jurisdiction to make an initial determination under Section 30-3B-201.’ Section 30-3B-201 provides:
“ ‘(a) Except as otherwise provided in Section 30-3B-204, [Ala.Code 1975,] a court of this state has jurisdiction to make an initial child custody determination only if:
“ ‘(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
“ ‘(2) A court of another state does not have jurisdiction under subdivision (1), or a court of the home state has declined to exercise jurisdiction on the ground -that this state is the more appropriate forum under Section 30-3B-207 or 30-3B-208, [Ala.Code 1975,] and:
“ ‘a. The child and the child’s parents, or the child and at least one parent or a person acting, as a parent, have a significant connection with this state other than mere physical presence; and
“‘b. Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships;
“ ‘(3) All courts having jurisdiction under subdivision (1) or (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Section 30-3B-207 or 30-3B-208; or
“‘(4) No court of any other state would have jurisdiction under the criteria specified in subdivision (1), (2), or (3).
“‘(b) Subsection (a) is the exclusive jurisdictional basis for making a child custody determination by a court of this state.
‘“(c) Physical presence of a child is not necessary or sufficient to make a child custody determination.’ ”

Baker, 25 So.3d at 473-74, Section 30-3B-102(7), Ala.Code 1975, defines “home state” as the “[t]he state in which the child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding.” If the circuit court found that the child had lived with a parent in Alabama for at least six consecutive months immediately before the father filed his modification petition, then it could have determined that it had jurisdiction under § 30-3B-201(a)(l), Ala.Code 1975. However, to the extent that the trial court impliedly made such a finding, that finding is not supported by the record.

When the father filed his custody-modification petition, the mother and the child had lived in Florida for more than six consecutive months. The mother testified that she and the child left Alabama and began living in Fort Walton Beach, Florida, sometime in late spring or summer 2013. She and the child moved to Crest-wood, Florida, in late January or early February 2014. Finally, she and the child returned to Fort Walton Beach, Florida, in late September 2014. The father filed his modification petition in the circuit court on November 12, 2014. The evidence presented therefore demonstrates that the mother and the child had lived in Florida for more than six consecutive months immediately before the commencement of the custody-modification proceeding.

The father argues that the mother’s deposition testimony regarding her trip to Hawaii establishes that she and the child were residing in Alabama in August 2014 because she also testified that she believed that she was living with her parents in Foley, Alabama, when she made the trip to Hawaii. That testimony appears to be inconclusive, and contradictory testimony was also given. However, even if supported by record, an implicit finding that the mother and the child were in Foley, Alabama, sometime in August 2014 does not compel the finding that the child lived with a parent in Alabama for at least six consecutive months immediately before the father filed his modification petition. There is no evidence in the record to support such a finding. Instead, the record indicates that the mother and the child had resided primarily, if not exclusively, in Florida since the parties were divorced in March 2013.

In conclusion, at the time that the modification proceedings were commenced, the mother and the child had resided in Florida for more than six consecutive months. Alabama was no longer the home state of the child under § 30-3B-201(a)(l). Furthermore, a Florida court would have had subject-matter jurisdiction to make a child-custody determination under § 30-3B-201(a)(1). Therefore, the circuit court did not have subject-matter jurisdiction under § 30-3B-201(a)(2). Because the circuit court did not have continuing, exclusive subject-matter jurisdiction under § 30-3B-202, and because the circuit court did not have subject-matter jurisdiction under § 3Ó-3B-201, it did not have subject-matter jurisdiction to enter any judgment modifying the 2013 custody determination. See Baker, 25 So.3d at 475. Therefore, the judgment of the circuit court entered on October 6, 2015, is void. See id. “This court has a duty to dismiss an appeal that is taken from a void judgment because a void judgment will not support an appeal.” Id.

APPEAL DISMISSED.

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

      . In this opinion, we refer to the mother using the name reflected on the notice of appeal and in many of the pleadings and documents filed in the circuit court; however, we note that the mother testified that she had remarried twice since the entry of the parties’ divorce judgment. The record reflects that her current surname is Centeno.

      . The parties and the circuit court refer to the custody award as one of "primary physical custody.” We use the phrase "sole physical custody” throughout this opinion to conform to the language used in the custody statutes, § 30-3-150 etseq., Ala.Code 1975.

      . The mother does not challenge the child-support award.

      . An implicit finding that the alternative criteria set out in § 30-3B-201(a)(l) were satisfied would also be unsupported for the same reasons.

      . The child’s paternal grandmother testified that she kept the child at the grandparents’ home in Prattville, Alabama, when the mother went to Hawaii and that the trip occurred while the father was deployed. It was undisputed that the father returned from his deployment in November 2013 and has not been deployed since.

      . In his appellate brief, the father states that the mother testified that she "lived-with her parents quite often in Foley during all these times.” However,, in the testimony cited, by the father, the ..mother .stated that , she visited her family twice a month.


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    Donald C. COX v. Stacy R. COX.
    2141036 and 2150667.
    Court of Civil Appeals of Alabama.
    June 10, 2016.

      Roianne Houlton Conner and Preston L. Presley of Law Offices of Roianne Houlton Conner, Montgomery, for appellant.
    Chip Cleveland of Cleveland, Riddle & Atchison, Attorneys at Law, LLC, Pratt-ville, for appellee.
   MOORE, Judge.

Donald C. Cox (“the father”) appeals from judgments entered by the Autauga Circuit Court (“the trial court”), one modifying his child-support obligation to Stacy R. Cox (“the mother”) (case no. DR-02-85.02) and the other denying his complaint to modify custody of B.C., the parties’ child who was still under the age of majority (case no. DR-02-85.03). In appeal no. 2141036, we affirm the trial court’s judgment with regard to the modification of the father’s child-support obligation. In appeal no. 2150667, we dismiss the father’s appeal from the judgment denying his petition to modify custody.

Procedural History

The parties were divorced by a judgment of the trial court entered on July 22, 2002. Pursuant to that judgment, the mother was awarded “primary” physical custody of B.C. and his sibling, S.C., and the father was ordered to pay monthly child support in the amount of $880 plus 15% of the gross amount of any year-end bonus that he receives. On February 15, 2011, the trial court modified the divorce judgment by awarding “primary” physical custody of S.C. to the father and by decreasing the father’s child-support obligation for B.C. to $460 per month.

On October 4, 2013, the mother filed a complaint commencing an action to modify the father’s child-support obligation (“the child-support action”); that action was assigned case no. DR-02-85.02. On October 8, 2013, the father filed a complaint commencing a separate action to, among other things, modify custody of B.C. (“the custody-modification action”); that action was assigned case number DR-02-85.03. On November 20, 2013, the trial court consolidated the actions. On April 30, 2014, the mother filed an answer and a counterclaim to the father’s complaint. On May 12, 2015, the trial court entered a final judgment in each action denying all requests for relief. On June 11, 2015, the mother filed a postjudgment motion in only the child-support action. On September 7, 2015, the trial court entered an order stating: “The [mother’s] Motion to Alter, Vacate or Amend the Final Decree of May 12, 2015 is hereby denied.” On September 8, 2015, the trial court entered an order stating, in pertinent part: “On September 7, 2015 the Court inadvertently entered an electronic Order denying the [mother’s] said motion. The Order entered by the Court on September 7, 2015, is vacated in its entirety and this Order is substituted therefore nunc pro tunc.” The September 8 order granted the mother’s post-judgment motion and further provided that the father’s child-support obligation would be increased to $876.14 per month. On September 10, 2015, the father filed his notice of appeal.

Discussion

On appeal, the father first argues that the trial court lacked jurisdiction to enter the September 8, 2015, order vacating its September 7, 2015, order entered in the child-support action.

“Rule 60(a), Ala. R. Civ. P., provides that a trial court may correct a clerical mistake in a judgment at any time [on] its own initiative. The Committee Comments on 1973 Adoption of Rule 60(a), Ala. R. Civ. P., citing West Virginia Oil & Gas Co. v. George E. Breece Dumber Co., 213 F.2d 702 (5th Cir. 1954), state that a ‘Rule 60(a) motion can only be used to make the judgment or record speak the truth and cannot be used to make it say something other than what was originally pronounced.’ Black’s Law Dictionary 582 (8th ed.2004), defines ‘clerical error’ as ‘[a]n error resulting from a minor mistake or inadvertence, esp. in writing or copying something on the record, and not from judicial reasoning or determination.’ (Emphasis added.)”

Deramus Hearing Aid Ctr., Inc. v. American Hearing Aid Assocs., Inc., 950 So.2d 292, 293-94 (Ala.2006).

In Deramus, our supreme court concluded that the trial court in that case had acted within its power under Rule 60(a), Ala. R. Civ. P., in correcting a clerical error. The trial court had originally entered a - summary judgment in favor of Deramus Hearing Aid Center, Inc. In an amended order, the trial court stated that it had actually intended to enter a summary judgment in favor of American Hearing Aid Associates, Inc. See 950 So.2d at 293. Our supreme reasoned:

“Nothing in the record indicates that the trial court, after entering summary judgment in favor of Deramus, reweighed the evidence and decided to change its mind and render a ‘different’ judgment in favor of American Hearing. A judgment is a ‘different’ judgment if it purports to change the facts or to reweigh the evidence. See, e.g., Reaves v. Reaves, 883 So.2d 693 (Ala.Civ.App.2003) (trial court’s mistake in dividing husband’s retirement accounts in divorce proceeding ’was a not á clerical error, but a mistake of fact—i.e., how to divide retirement funds); and Crowson[ v. Woolard Bros., 879 So.2d 1203 (Ala.Civ.App.2003)] (trial court’s initial finding that claimant was permanently and totally disabled and subsequent finding that he was 98% disabled was not a clerical error, but a change in the trial court’s initial findings). The type of correction in the instant case was clerical in that the correction did not involve one of judicial reasoning, i.e., a mistake of fact or modification of an original judgment, which would require judicial discretion .under Rule 60(b), Ala. R. Civ. P. A contrary conclusion would require this Court to call into question the veracity of the trial court by contradicting the trial court’s express disavowal of any such intention. This we decline to do.” ’

950 So.2d at 295.

Similarly, in the child-support action, the trial court specifically stated in its September 8, 2015, order that its September 7, 2015, order had been entered inadvertently, and it proceeded to correct that order pursuant to Rule 60(a). This court will not “call into question the veracity of the trial court by contradicting the trial court’s [explanation].” Deramus, 950 So.2d at 295. Because, pursuant to Rule 60(a), a trial court “may correct a clerical mistake in a judgment at any time [on] its own initiative,” Deraums, 950 So.2d at 293, we conclude that the trial court acted within its jurisdiction in entering its September 8, 2015, order.

The father next argues that the trial court erred in increasing his child-support obligation because, he says, there was no evidence indicating that the needs of B.C. had increased. Rule 32(A)(3), Ala. R, Jud. Admin,, provides, in pertinent part:

“(b) A party seeking a modification of child support must plead and prove that there has occurred a material change in circumstances that is substantial and continuing since the last order of child support.
“(c) There shall be a rebuttable presumption that child support should be modified when the difference between the existing -child-support award and the amount determined by application of these guidelines varies more than ten percent (10%), unless the variation is due to the fact that the existing child-support award resulted from a .rebuttal of the guidelines and there has been no change in the circumstances that resulted in the rebuttal of the guidelines.”

In the present case, the.father testified that his monthly child-support obligation for B.C. had been set at a reduced amount ($460) in the February 15, 2011, judgment because the parties each had custody of one child. Since the entry of the February 15, 2011, judgment, S.C. had reached the age of majority and was no longer living with the father; thus, there was evidence indicating that, since the entry of the last order of child support, a material change in circumstances had occurred and that that change is substantial and continuing. See Rule 32(A)(3)(b). The trial court calculated the father’s child-support obligation according to the child-support guidelines of Rule 32 and determined that the father’s monthly child-support obligation for B.C. was due to be modified to $876.14. The difference in the father’s previous child-support obligation of $460 per month and the new amount as determined by the trial court ($876.14) is more than 10%. Therefore, there was a rebutta-ble presumption that the father’s child-support obligation was due to be modified, and the father failed to rebut that presumption. Accordingly, we will not reverse the trial court’s judgment on this point. See, e.g., Ex parte Moore, 805 So.2d 715, 720 (Ala.2001) (affirming modification of child support where oldest two children had reached the age of majority and one other child had married, noting that the application of the child-support guidelines resulted in a presumption that there had been a material change in circumstances).

Finally, the father argues that the trial court erred in denying his custody-modification complaint because, he says, B.C. testified that he wanted to live with the father. That issue arises solely from the appeal of the judgment entered in the custody-modification action, which was entered on the same date as the judgment entered in the child-support action. Because the trial court adjudicated all claims of the parties in those judgments, the period for appealing from either of those judgments commenced on the date of their entry. See Hanner v. Metro Bank & Protective Life Ins. Co., 952 So.2d 1056 (Ala.2006) (holding that parties may appeal only when all consolidated actions have been resolved). However, the mother filed a postjudgment motion in the child-support action, which tolled the time for taking an appeal from the judgment entered in that action but did not toll the time for appealing the judgment entered in the custody-modification action.

In Pitts v. Jim Walter Resources, Inc., 994 So.2d 924 (Ala.Civ.App.2007), two brothers filed separate actions against the same defendant. The trial court consolidated the actions and entered final judgments in both cases on the same date. One of the brothers filed a post-judgment motion in his case, but the other brother did not. After the trial court denied the postjudgment motion, both brothers appealed. This court determined that, although Hanner provides that the appeal period runs from the date all consolidated actions are adjudicated, Hanner does not provide that the filing of a postjudgment motion in one action tolls the appeal period as to the other action. This court reasoned that,

“where ‘several actions are ordered to be consolidated for trial, each action retains its separate identity and thus requires the entry of a separate judgment.’ League v. McDonald, 355 So.2d 695, 697 (Ala.1978), cited with approval by Solomon v. Liberty Nat’l Life Ins. Co., 953 So.2d 1211 (Ala.2006).
“‘Moreover, “[a]n order of consolidation does not merge the actions into a single [action], change the rights or the parties, or make those who are parties to one [action] parties to another.” Jerome A. Hoffman, Alabama Civil Procedure § 5.71 (2d ed.2001) (citing Evers v. Link Enters., Inc., 386 So.2d 1177 (Ala.Civ.App.1980)). Finally, “ ‘in consolidated actions ... the parties and pleadings in one action do not become parties and pleadings in the other.’” Ex parte Flexible Prods. Co., 915 So.2d 34, 50 (Ala.2005) (quoting Teague v. Motes, 57 Ala.App. 609, 613, 330 So.2d 434, 438 (Ala.Civ.App.1976)).’
“Solomon, 953 So.2d at 1222 (emphasis added).”

994 So.2d at 930. This court concluded that the postjudgment motion tolled the time for appeal only in the action in which the postjudgment had been filed. Accordingly, the court dismissed the appeal taken from the judgment entered in the other action, which had been filed more than 42 days from entry of the final judgments.

In the present case, the mother’s post-judgment motion in the child-support action did not toll the time for the father to take an appeal from the judgment entered in the custody-modification action, which became final on May 12, 2015. The father filed his notice of appeal from the judgment entered in the custody-modification action 121 days after the entry of the trial court’s judgment in that action, well beyond the 42-day appeal period. See Rule 4(a)(1), Ala. R.App. P. Therefore, we dismiss the father’s appeal from the judgment entered in the custody-modification action. Pitts, 994 So.2d at 930.

Conclusion

Based on the foregoing, we affirm the trial court’s judgment in the child-support action. We dismiss the father’s appeal from the judgment entered in the custody-modification action. The father’s request for an award of attorney’s fees on appeal is denied.

2141036—AFFIRMED. '

2150667—APPEAL DISMISSED.

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

      . We interpret the divorce judgment as awarding the mother sole physical custody and awarding the father visitation. See Ex parte Stouffer, 214 So.3d 1192, 1195-96 (Ala.Civ.App.2016). The term "primary” physical custody is an incorrect term and is not recognized in Alabama law.

      . We interpret the judgment as awarding the father sole physical custody of S.C. and awarding the mother visitation. See note 1, supra.

      . The notice of appeal filed by the father referenced only the civil-action number in the child-support action; however, the father clearly indicated in the docketing statement that he was also appealing from the judgment entered in the custody-modification action. See Okafor v. State, [Ms. 2140649, Feb. 12, 2016] — So.3d — (Ala.Civ.App.2016) (holding that, when appellate court can glean intent of appellant to appeal from judgment from docketing statement, strict compliance with rules of appellate procedure will not be required); R.J.G. v. S.S.W., 42 So.3d 747, 751 n. 2 (Ala.Civ.App.2009) (when intent to appeal both judgments from consolidated actions clearly appears, this court will accept one notice of appeal as to judgments entered in both actions).


author: BOLIN, Justice. MURDOCK, Justice

text:
    Ex parte Donald C. COX. (In re: Donald C. Cox v. Stacy R. Cox).
    1150989.
    Supreme Court of Alabama.
    Sept. 2, 2016.
    Roianne Houlton Conner and Preston L. Presley of The Law Offices of Roianne Houlton Conner, Montgomery, for petitioner.
    Submitted on certiorari petition only.
   BOLIN, Justice.

WRIT DENIED. NO OPINION.

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

MURDOCK, J., dissents.

MURDOCK, Justice

(dissenting).

I refer the reader to the procedural history of this case as set out in the opinion of the Court of Civil Appeals. Cox v. Cox, 218 So.3d 1215, 1216-17 (Ala.Civ.App.2016).

When the trial court consolidated the separate actions of the mother and the father, they became a single action to which the requirements of Rule 54(b), Ala. R. Civ. P., were applicable. Thus, barring a Rule 54(b) certification (which was not entered here and would, in any event, have been inappropriate because of the intertwined nature of the claims), no portion of the judgment of the trial court in the consolidated action became final until all the claims in the cases were finally adjudicated in accordance with applicable rules of procedure. Thus, during the continued pendency of the mother’s child-support claim as a result of the filing of her post-judgment motion, the trial court’s adjudication of the father’s custody claim also remained pending in the trial court. The trial court’s adjudication of the two claims in the single, consolidated action became final for purposes of appeal at the same time, a conclusion dictated by this Court’s holding in Hanner v. Metro Bank & Protective Life Insurance Co., 952 So.2d 1056, 1060-61 (Ala.2006).

The Court of Civil Appeals held that the father’s appeal was untimely because the filing of a postjudgment motion as to the mother’s child-support claim tolled the time for appeal only as to that claim. But this holding ultimately fails to fully account for this Court’s holding in Hanner. Specifically, the Court of Civil Appeals, citing its own opinion in a 2007 case, which in turn relied upon various cases that predated or failed to take account of this Court’s 2006 decision in Hanner, based its holding on the following legal principles:

“‘[Wjhere “several actions are ordered to be consolidated for trial, each action retains its separate identity and thus requires the entry of a separate judgment.” League v. McDonald, 355 So.2d 695, 697 (Ala.1978), cited with approval by Solomon v. Liberty Nat’l Life Ins. Co., 953 So.2d 1211 (Ala.2006).
“ ‘ “Moreover, ‘[a]n order of consolidation does not merge the actions into a single [action], change the rights or the parties, or make those who are parties to one [action] parties to another.’ Jerome A. Hoffman, Alabama Civil Procedure § 5.71 (2d ed.2001) (citing Evers v. Link Enters., Inc., 386 So.2d 1177 (Ala.Civ.App.1980)). Finally, ‘ “in consolidated actions ... the parties and pleadings in one action do not become parties and pleadings in the other.” ’ Ex parte Flexible Prods. Co., 915 So.2d 34, 50 (Ala.2005) (quoting Teague v. Motes, 57 Ala.App. 609, 613, 330 So.2d 434, 438 (Ala.Civ.App.1976)).”
‘Solomon, 953 So.2d at 1222 (emphasis added).’ ”

Cox, 218 So.3d at 1219-20 (quoting Pitts v. Jim Walter Res., Inc., 994 So.2d 924, 930 (Ala.Civ.App.2007) (emphasis added)). But this Court rejected the above-quoted legal principles in Hanner:

“According to Wright and Miller:
“ ‘Although federal courts usually have said that consolidated actions do not lose their separate identity, some courts have reasoned persuasively that they should be treated as a single action for purposes of review by way of Rule 54(b), and that a judgment in the consolidated case that does not dispose of all claims and all parties is appealable only if certified as that rule requires.’

“9 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2386 (2d ed.1995) (footnote omitted). The United States Court of Appeals for the Ninth Circuit has said:

“ ‘In our view, the best approach is to permit the appeal only when there is a final judgment that resolves all of the consolidated actions unless a 54(b) certification is entered by the district court. This leaves the discretion with the court which is best able to evaluate the [e]ffect of an interim appeal on the parties and on the expeditious resolution of the entire action.’
“Huene v. United States, 743 F.2d 703, 705 (9th Cir.1984). See, also, Trinity Broad. Corp. v. Eller, 827 F.2d 673, 675 (10th Cir.1987) (To obtain review of one part of a consolidated action, appellant must obtain certification under Fed. R.Civ.P. 54(b),’); and Spraytex, Inc. v. DJS&T, 96 F.3d 1377, 1382 (Fed.Cir. 1996) (‘We now extend this approach to join the Ninth and Tenth Circuits in adopting the rule that, absent Rule 54(b) certification, there may be no appeal of a judgment disposing of fewer than all aspects of a consolidated case.’). We find persuasive the holdings of these decisions interpreting the Federal Rules of Civil Procedure, on which our own Rules of Civil Procedure are based. Accordingly, we hold that a trial court must certify a judgment as final pursuant to Rule 54(b), Ala. R. Civ, Pbefore a judgment on fewer than all the claims in a consolidated action can be appealed.”

Hanner, 952 So.2d 1056, 1060-61 (emphasis added).

It appearing to me that the Court of Civil Appeals’ treatment of the father’s appeal as untimely is based on legal principles that have been superseded by and are irreconcilable with this Court’s holding in Hanner, I respectfully dissent from the denial of further review in this case.

      . The trial court's merger of the parties’ competing claims into a single action was appropriate, given the dependent and intertwined nature of the claims asserted in the separate actions. The mother’s claim for additional child support could not be properly adjudged without a resolution of the father's claim for custody.


author: PER CURIAM. MOORE, Judge,

text:
    HOSPICE FAMILY CARE v. Joseph ALLEN, dependent spouse of Suzanne Sharp Allen, deceased.
    2140861.
    Court of Civil Appeals of Alabama.
    June 10, 2016.

      Frederick L. Fohrell and Christopher L. Lockwood of Wilmer & Lee, P.A., Huntsville, for appellant.
    J. Barton Warren of Warren & Simpson, P.C., Huntsville, for appellee.
   PER CURIAM.

Hospice Family Care (“HFC”) appeals from a judgment entered by the Madison Circuit Court in favor of Joseph Allen, the widower and dependent spouse of Suzanne Sharp Allen (“the employee”), pursuant to the Alabama Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975 (“the Act”).

The employee died in an automobile accident on Monday afternoon, February 3, 2014. On March 6, 2014, Allen filed a complaint in the circuit court against Shon-ja Tammy Pogue, David Maples, and Allstate Insurance Company (“Allstate”). Pogue, Maples, and Allstate each filed answers to Allen’s complaint.

On April 14, 2014, Allen filed an amended complaint in which he added HFC as a defendant and sought an award of death benefits and burial expenses pursuant to the Act. HFC requested a separate trial, and it filed an answer to Allen’s amended complaint. On November 25, 2014, the circuit court entered a pretrial order in which it determined, among other things, that “[t]he workers’ compensation case will be tried separately.”

A two-day trial on the workers’ compensation action began on March 2, 2015, and, on June 19, 2015, the circuit court entered a judgment. The circuit court concluded that the employee had been an employee of HFC, that Allen had been wholly supported by the employee at the time of her death, that the employee had been a “traveling employee,” that the employee had been acting in the scope of her employment at the time of her death, and that there existed no substantial deviation from her employment that would bar recovery under the Act. The circuit court also concluded that certain policies of insurance were neither intended nor contemplated “to be substitute coverage for the requirement of HFC to provide workers’ compensation benefits through a self-insured program, comp insurance or any other plan.” The circuit court awarded Allen $6,500 in burial expenses, $51,254.64 (including attorney fees) in accrued benefits, and $605.09 per week (excluding attorney fees) in future benefits for 428 weeks. HFC filed a timely notice of appeal, and it requested oral argument, which was held by this court.

The Issues

In its appellate brief, HFC argues that the circuit court erred by awarding benefits to Allen pursuant to the Act because, it contends, the claim is barred by the going and coming rule, the claim is barred because the employee died in an accident after completing a personal errand, the circuit court failed to properly apply certain provisions of the Act, the circuit court failed to award a setoff for certain insurance benefits paid to Allen, and the circuit court awarded an amount in excess of the statutory limit on burial expenses.

The Standard of Review

“Section 25-5-81(e), Ala.Code 1975, provides the standard of review in a workers’ compensation case:

“‘(1) In reviewing the standard of proof set forth herein and other legal issues, review by the Court of Civil Appeals shall be without a presumption of correctness.
“ ‘(2) In reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence.’

“Substantial evidence is ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).

“ ‘Our review is restricted to a determination of whether the trial court’s factual findings are supported by substantial evidence. Ala.Code 1975, § 25-5-81(e)(2). This statutorily-mandated scope of review does not permit this court to reverse the trial court’s judgment based on a particular factual finding on the ground that substantial evidence supports a contrary factual finding; rather, it permits this court to reverse the trial court’s judgment only if its factual finding is not supported by substantial evidence. See Ex parte M&D Mech. Contractors, Inc., 725 So.2d 292 (Ala.1998). A trial court’s findings of fact on conflicting evidence are conclusive if they are supported by substantial evidence. Edwards v. Jesse Stutts, Inc., 655 So.2d 1012 (Ala.Civ.App.1995).’
“Landers v. Lowe’s Home Ctrs., Inc., 14 So.3d 144, 151 (Ala.Civ.App.2007). ‘This court’s role is not to reweigh the evidence, but to affirm the judgment of the trial court if its findings are supported by substantial evidence and, if so, if the correct legal conclusions are drawn therefrom.’ Bostrom Seating, Inc. v. Adderhold, 852 So.2d 784, 794 (Ala.Civ.App.2002),”

MasterBrand Cabinets, Inc. v. Ruggs, 10 So.3d 13, 16-17 (Ala.Civ.App.2008).

The Facts

The employee was a registered nurse employed by HFC as a day-shift nurse. Day-shift nurses worked from 8:00 a.m. to 4:30 p.m. The employee’s daily responsibilities as a day-shift nurse included driving to the residences of and providing care to approximately four patients, recording a voice message at the end of the shift regarding each patient’s condition for the benefit of a night-shift nurse, entering the billing codes of services provided for insurance purposes, and 'transcribing medical information regarding each patient on a shared computer database (“charting”). On average, charting, which was mandatory within 24 hours , of a home visit, required 2 to 3 hours of work per day. Charting could be done anywhere a laptop computer could be used.

On the afternoon of the automobile accident, the employee had telephoned Allen to tell him that she was on Winchester Road on her way from her last patient’s residence to their residence on Buddy Williamson Road, which was located off Winchester Road. At that time she had neither charted, nor entered the billing codes,'nor recorded the voice message. The employee informed Allen that, after she stopped at a pharmacy on Winchester Road to pick up a personal prescription, she would drive home. A document offered into evidence demonstrated that a prescription had been filled at a pharmacy on Winchester Road on February 3, 2014. The employee was in her vehicle traveling north on Winchester Road toward her home at a location past the pharmacy, but before the turn to Buddy Williamson Road, when her vehicle was struck by a southbound vehicle that entered her lane. The time of injury was listed as 3:46 p.m. The employee was pronounced dead at the scene at 4:10 p.m.

HFC had provided life insurance and accidental-death insurance for the employee at no additional cost to her, and the employee had also elected to purchase an additional $100,000 life-insurance policy. Allen and the employee’s adult daughter, Lauren Sharp, were the beneficiaries of those policies, which included a $50,000 payment from the additional $100,000 life-insurance policy. Allen incurred burial expenses in the amount of $7,474. .

Additional testimony presented at the trial demonstrated that HFC had provided each nurse employed by it with a portable laptop computer and a cellular telephone. Vehicles were not provided. HFC paid mileage;. however, mileage from the location of an employee’s last home visit to an employee’s residence was not paid. Allen testified that the employee had not routinely arrived home from work at the same time each day. He said that her work schedule depended on the needs of her patients, that she usually placed a 20- to 30-minute telephone call to HFC when she got home, and that she used her laptop computer at home for charting. Allen said that the employee usually charted for approximately two hours each evening and that she regularly talked to the family members of her patients on the telephone or went to patients’ residences after 4:30 p.m.

Debra Chandler, the HFC director of nursing and the employee’s supervisor, testified that charting was mandatory within 24 hours of a home visit but that a nurse could complete his or her charting at any physical location he or she chose. However, according to Chandler, because of the character of the neighborhood where the office of HFC was located, nurses “were discouraged to come back to the office” to complete their charting, if it was “close to dark,” because Chandler “did not feel like they would be safe” to come to the HFC office alone. Chandler said:

“As long as the documentation got done, I left it to the nurses how they do it.
“To complete visits for that day, it would have included entering all of the medical data into the record of her assessment that day. It would have included calling the doctor if there was something that she needed to discuss. It would have included leaving a voice-mail at the end of the day for the on-call nurse that was coming on so that the on-call nurse was aware of where that particular patient stood for the day. That would be everything that would be due by the end of her workday.”

Michelle Millirons, the director of human resources for HFC, confirmed that charting could be done anywhere. Millirons said that a nurse could chart in a patient’s residence or driveway, at his or her residence, or at the HFC office. Kirsten Langston, the quality coordinator and acting compliance officer for HFC, testified that the amount of time necessary for charting varied but that, on average, charting required up to three hours per day. Donna Davenport, the HFC coordinator of volunteers, said that the voice-mail message could be placed from any location.

Millirons and Jamie Posey, the director of finance for HFC, each testified that a day-shift nurse who had finished his or her home visits could go home before 4:30 and that the pay of a nurse—a salaried employee—would not change. Langston testified that nurses were also allowed to complete a personal errand, like picking up a personal prescription, without seeking permission of a supervisor or requesting leave; however, Langston testified, if a patient needed a nurse, HFC required the nurse to be available to meet the patient’s need. Chandler testified that nurses filled out leave-request forms for approval to be off for a day or more and that a nurse was expected to notify the office if he or she needed to be off for a few hours. Chandler explained that if, for example, a day-shift nurse needed to be off duty at 3:30 p.m., a request would have to be submitted and approved so that another nurse would be available until the night-shift nurse became available at 4:30.

Chandler said that the employee had not requested to be off duty on February 3, 2014. Sonya Bradford, the director of compliance for HFC, and Chandler each testified that the employee had not charted on February 3, 2014, and Chandler testified that the employee had not left a voice-mail message for the night-shift nurse.

Analysis

Under the going and coming rule, accidents occurring while a worker is traveling on a public road while going to or coming from work generally fall outside the course of the employment. McDaniel v. Helmerich & Payne Int’l Drilling Co., 61 So.3d 1091, 1093 (Ala.Civ.App.2010); Turner v. Drummond Co., 349 So.2d 598, 603 (Ala.Civ.App.1977). HFC argues that the accident in this case did not arise out of and in the course of the employee’s employment. For injury to or death of an employee to be compensable under the Act, the injury or death must be caused by “an accident arising out of and in the course of [the] employment.” § 25-5-51, Ala.Code 1975. HFC argues that the employee was neither at work nor performing any work at the time of the accident. However, HFC ignores the circuit court’s conclusions regarding whether the employee was “coming from work.” In cases like this one, in which there can be so many variations in the facts and circumstances, the issue whether an employee is involved in an activity within the course of his or her employment when an accident occurs must be decided on a case-by-case basis.

“Pursuant to § 25-5-31, Ala.Code 1975, an employee’s injuries are compen-sable if his accident arose out of and in the course of employment. Although ‘“‘[c]ourts must liberally construe the workers’ compensation law “to effectuate its beneficent purposes,” ... such a construction must be one that the language of the statute “fairly and reasonably” supports.”” Fort James Operating Co. v. Irby, 911 So.2d 727, 733 (Ala. Civ.App.2005) (quoting Ex parte Weaver, 871 So.2d 820, 824 (Ala.2003), quoting in turn Ex parte Dunlop Tire Corp., 706 So.2d 729, 733 (Ala.1997), quoting in turn Ex parte Beaver Valley Corp., 477 So.2d 408, 411 (Ala.1985)). Our supreme court has' said that ‘[a]n injury to an employee arises in the course of his employment when it occurs within the period of his employment, at a place where he may reasonably be and while he is reasonably fulfilling the duties of his employment or engaged in doing something incident to it.’ Massey v. United States Steel Corp., 264 Ala. 227, 230, 86 So.2d 375, 378 (1955) (emphasis added). Regarding the ‘going and coming’ rule, our supreme court has stated:
“‘Generally, Alabama law has held that injuries sustained in accidents that occur while an employee is traveling to and from work are not covered under the Act because those injuries do not meet the “arising out of and in the course of employment” requirement. See Hughes v. Decatur Gen. Hosp., 514 So.2d 935 (Ala.1987); Exchange Distrib. Co. v. Oslin, 229 Ala. 547, 158 So. 743 (1935); Tucker v. Die-Matic Tool Co., 652 So.2d 263 (Ala.Civ.App.1994); Walker v. White Agencies, Inc., 641 So.2d 795 (Ala.Civ.App.1993); Terry v. NTN-Bower Corp., 615 So.2d 629 (Ala.Civ.App. 1992); Winn-Dixie Stores, Inc. v. Smallwood, 516 So.2d 716 (Ala.Civ.App.1987).’
“Ex parte Shelby County Health Care Auth., 850 So.2d 332, 336 (Ala.2002). In Ex parte Shelby County Health Care Authority, the supreme court explained that only a few exceptions exist to the ‘going and coming’ rule:
“ ‘Alabama courts have carved out only a few exceptions to this general rule:
“‘“Such exceptions include situations where the employer furnishes the employee transportation or reimburses him for his travel expenses; where the accident occurs on the employer’s property or on public property that is tantamount to the employee’s ingress to and egress from the employer’s property; or where the employee is injured crossing a public street between the main premises of the employer and the parking lot owned by the employer.”
‘Terry v. NTN-Bower Corp., 615 So.2d [629] at 631 [ (Ala.Civ.App.1992)] (citations omitted). See also Meeks v. Thompson Tractor Co., 686 So.2d 1213, 1216 (Ala.Civ.App.1996). An additional exception to the general rule arises when an employee, during his travel to and from work, is engaged in some duty for his employer that is in furtherance of the employer’s business. See Tucker v. Die-Matic Tool Co., 652 So.2d [263] at 265 [ (Ala.Civ.App.1994) ].’
“Ex parte Shelby County Health Care Auth., 850 So.2d at 336 (emphasis added).”

McClelland v. Simon-Williamson Clinic, P.C., 933 So.2d 367, 370 (Ala.Civ.App.2005).

In this case the employee was acting in furtherance of the business affairs of HFC. We base our conclusion on the following facts. HFC required the employee to be available to care for her patients until 4:30 p.m., HFC furnished a laptop computer and a cellular telephone to enable the employee to work from home, and HFC discouraged the employee from returning to the office after seeing her patients each day because of the character of the neighborhood where the office of HFC was located. Furthermore, the accident occurred before 4:30 p.m., the employee had not requested any leave on February 3, 2014, and it had been the employee’s habit to discharge certain duties at home.

Therefore, the evidence demonstrated that HFC had encouraged nurses to complete integral parts of their duties at home or in any other location they chose. Because the employee was still in the process of performing her duties for HFC at the time the accident occurred, this case falls under the last exception to the going and coming rule. The fact that nurses were encouraged to go home to complete their required tasks is a strong factor in our determination that, at the time the accident occurred, the employee was engaged in a journey that was in furtherance of the business of HFC and that she was still fulfilling the duties HFC required of her. See McClelland, supra.

The circuit court reasonably concluded that the employee’s workday had not ended at the time of her death. Therefore, the circuit court did not err by concluding that the accident arose out of and in the course of the employee’s employment and that the employee was still working and was not, therefore, “coming from work.” In other words, because the employee was fulfilling her duties to HFC at the time the accident occurred, the accident arose out of and in the course of her employment. Her death, as a result of that accident, is compensable.

The final question regarding HFC’s first issue is whether the employee’s stop at the pharmacy, which amounted to a purely personal errand, barred an award of benefits under the Act. See Young v. Mutual Sav. Life Ins. Co., 541 So.2d 24 (Ala.Civ.App.1989)(concluding that a traveling employee is within the course of the employment at all times while in his or her prescribed territory, except when engaged in a purely personal errand). However, as Judge Terry Moore pointed out in his treatise on workers’ compensation law:

“Alabama law provides that not any deviation places an accident out of the course of the employment; rather, a substantial deviation occurs when the employee abandons the employment in pursuit of a purely personal objective. Thus, an employee will not be entitled to compensation when the accident occurs while the employee has left the employment route to run a completely personal errand that does not benefit the employer.”

1 Terry A. Moore, Alabama Workers’ Compensation § 11:44 (2nd ed.2013)(footnotes omitted). In Queen City Furniture Co. v. Hinds, 274 Ala. 584, 150 So.2d 756 (1963), Hinds, an employee, had deviated from the business of his employer to go on a personal errand to a post office. 274 Ala. at 587, 150 So.2d at 759. At the time of a fatal accident, the “personal enterprise” had ended and Hinds was going to his home, where he worked. 274 Ala. at 589, 150 So.2d at 760. The Hinds court concluded that the trial court was “fully justified in its finding that Mr. Hinds’ injuries arose out of and were in the course of his employment.” Id. Similarly, in this case, testimony demonstrated that, on the day the accident occurred, the employee had deviated from the business of HFC for a period of minutes to stop at the pharmacy, that the errand had ended, and that the employee was on her way to her residence. Testimony demonstrated that, at the time of the accident, the employee was not “off the clock,” that she routinely worked from home for several hours each evening, and that, on the day of the accident, she had not completed her daily duties. Moreover, Langston testified that it had not been against any HFC policy for nurses to complete a personal errand without seeking permission of a supervisor or requesting leave. The circuit court did not err by concluding that the employee’s personal errand was not a substantial step outside her employment; the deviation was minimal, transitory, slight, and insubstantial. See Savin Corp. v. McBride, 134 Or.App. 321, 326, 894 P.2d 1261.1262 (1995).

Next, HFC argues that the circuit court erred by failing to award a setoff for the life-insurance and death benefits that had been paid to Allen. HFC argues that workers’ compensation is not designed to allow for a double recovery, which is true in the context of recoveries against liable third parties. See § 25-5-11, Ala.Code 1975. We also agree with HFC’s assertion that it was entitled to provide other types of insurance to its employees. See § 25-5-8(a), Ala.Code 1975, which provides, in pertinent part:

“Notwithstanding any other provision of the law to the contrary, the obligations of employers under law for workers’ compensation benefits for injury of employees may be insured by any combination of life, disability, accident, health, or other insurance provided that the coverages insure without limitation or exclusion the workers’ compensation benefits of this state.”

(Emphasis added.)

HFC directs our attention to § 25-5-57(c), Ala.Code 1975, which allows for set-off for other recovery in calculating the amount of workers’ compensation due in certain circumstances. Although in its reply brief HFC asserts that it is not seeking a setoff under § 25-5-57(c)(l), it discusses that subsection in its initial brief. Section 25-5-57(c)(l) provides that “[i]f and only if the employer provided the benefits or paid for the plan or plans providing the benefits deducted,” the employer may reduce the amount of benefits paid pursuant to a disability plan, a retirement plan, or another plan providing for sick pay. According to HFC, it had provided “life insurance” and “accidental death benefits,” which had not limited or excluded benefits under the Act; however, HFC does not claim that it had provided a disability plan, a retirement plan, or another plan providing for sick pay or that the employee’s life-insurance or accidental-death benefits were a disability plan, a retirement plan, or another plan providing for sick pay.

HFC next points to § 25-5-57(c)(3), and, in its reply brief, it asserts that it is seeking a setoff pursuant to that subsection, which provides:

“If an employer continues the salary of an injured employee during the benefit period or pays similar compensation during the benefit period, the employer shall be allowed a setoff in weeks against the compensation owed under this article. For the purposes of this section, voluntary contributions to a Section 125-cafeteria plan for a disability or sick pay program shall not be considered as being provided by the employer.”

We are not persuaded that the payments received from employer-provided disability policies for injuries sustained by • the employees in Ex parte City of Birmingham, 988- So.2d 1035 (Ala.2008); City of Birmingham v. George, 988 So.2d 1031 (Ala.Civ.App.2007); Ex parte Fort James Operating Co., 895 So.2d 294 (Ala. 2004); Cross v. Goodyear Tire & Rubber Corp., 793 So.2d 791 (Ala.Civ.App.2000); and Ex parte Dunlop Tire Corp., 706 So.2d 729 (Ala.1997), which supported setoffs in those cases, are sufficiently similar to the death benefits provided to Allen in this case. Moreover,, the plain language of § 25—5—57(c)(3) does not apply to a deceased employee but, rather, applies to a setoff for disability benefits or sick pay paid to an “injured employee” during the weeks the employee’s salary or similar compensation was continued while the employee could not work.

We need not review HFC’s last issue because Allen concedes that the circuit court erred by awarding $6,500 in burial expenses. The judgment of the circuit court is reversed and the cause is remand insofar as it awarded Allen $6,500 in burial expenses. The circuit court is instructed to award an appropriate amount-for burial expenses pursuant to § 25-5-67, Ala.Code 1975. In all other respects the judgment of the circuit court is affirmed.

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

THOMPSON, P.J., and PITTMAN, THOMAS, and DONALDSON, JJ., concur. ' ” ' ’ '

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

MOORE, Judge,

concurring in part and concurring in the result in part.

I. concur with that portion of the main opinion reversing the Madison • Circuit Court’s judgment insofar as it awarded Joseph Allen (“the dependent”) excessive burial expenses. I also concur with much of the discussion regarding compensability—i.e., whether the accident that caused the death of Suzanne Sharp, Allen (“the employee”) arose out of and in the course of her employment—although I do not entirely agree with the relevancy of some of the evidence cited in the main opinion in support of the court’s conclusión as to that issue. I concur in the result as, to the affirmance of that part of the judgment denying Hospice Family Care (“the employer”) any credit for life-insurance and accidental-death benefits paid tó the dependent.

The Liability Issue

I agree that the Madison Circuit Court (“the trial court”) did not-.err in, awarding death benefits to the dependent under the Alabama Workers’ Compensation Act, (“the Act”), Ala.Code 1975, § 25-5-1 et- seq., as a result of the death of the employee. The primary purpose of the Act is to place part of the burden of injuries and deaths from occupational hazards onto the employer. Pow v. Southern Constr. Co., 235 Ala. 580, 584, 180 So. 288, 291 (1938). When an employer, as part of the employment relationship and for mutual economic benefit, requires an employee to continually or frequently travel by automobile in furtherance of his or her job duties, thereby making the risk of an automobile accident an occupational hazard, the general philosophy behind the Act demands that the employer shall be liable for an injury, disability, or death of the employee resulting from an automobile accident occurring as a result of those circumstances. See Union Serv. Ins. Co. v. Donaldson, 254 Ala. 204, 48 So.2d 3 (1950). The specific provisions of the Act should be liberally construed to accomplish, not prevent, that benevolent purpose. Ala. Acts 1992, Act No. 92-537, § 1.

The employer in this case maintains that the trial court erred because, it says, the automobile accident did not arise out of and in the course of the employee’s employment -within the meaning of Ala.Code 1975, § 25-5-51, which provides, in pertinent part:

“If an employer is subject to this article, compensation, according to the schedules hereinafter contained, shall be paid by the employer, or those conducting the business during bankruptcy or insolvency, in every case of personal injury or death of his or her employee caused by an accident arising out of and in the course of his or her employment, without regard to any question of negligence.”

An accident “arises out of the employment” when the employment conditions materially increase the risk of the occurrence of that accident, Ex parte Trinity Indus., Inc., 680 So.2d 262 (Ala.1996), such as when the employment requirements multiply the dangers of an automobile accident by continually or frequently placing an employee on the public highways. Donaldson, supra. An employee is exposed to a greater chance of being involved in an automobile accident when using the public roadways more often than the average motorist. Id. In this case, the automobile accident arose out of the employment requirement that the employee regularly travel the roadways in and around Madison County to fulfill her job duties. By exposing the employee to an increased risk of becoming a roadway fatality beyond the normal risk undertaken by persons in their ordinary lives, the travel requirements of the job legally caused the death of the employee. Ex parte Trinity Indus., supra.

Section 25-5-1(8) expressly provides that an accident occurs “in the course of the employment” when the employee is

“engaged in or about the premises where then1 services are being performed or where their service requires their presence as a part of service at the time of the accident and during the hours of service as workers.”

As liberally construed, “ ‘[a]n injury to an employee arises in the course of his [or her] employment when it occurs within the period of his [or her] employment, at a place where he [or she] may reasonably be, and while he [or she] is reasonably fulfilling the duties of his [or her] employ-inent or engaged in doing something incident to it.’ ” Ex parte Shelby Cty. Health Care Auth., 850 So.2d 332, 336 (Ala.2002) (quoting Anderson v. Custom Caterers, Inc., 279 Ala. 360, 361, 185 So.2d 383, 384-85 (1966), citing in turn Southern Cotton Oil Co. v. Bruce, 249 Ala. 675, 32 So.2d 666 (1947)). “[T]his test broadens the course of employment to include practically any time, place, or activity in which an employee may confront an occupational hazard, excluding only those cases where the accident arises while the employee is engaged in a purely personal activity.” 1 Terry A. Moore, Alabama Workers’ Compensation § 11:3 (2d ed.2018).

The employer argues that the “going and coming rule” bars the dependent’s claim. That rule arises primarily from the statutory requirement in § 25-5-1(8) that, for an accident to have occurred “in the course of the employment,” an employee must be on the employment premises, engaged in a service to his or her employer, at the time of the accident. In the usual case, the employment premises are well defined and the act of commuting to and from those premises cannot be characterized as a benefit to the employer, so, as a general rule, an accident that occurs while an employee is going to or coming from his or her employment site does not arise in the course of the employee’s employment. See McClelland v. Simon-Williamson Clinic, P.C., 933 So.2d 367 (Ala.Civ.App.2005). The rationale supporting the going and coming rule evaporates, however, when an employee does not work at a fixed job site but regularly travels to varying destinations in service of the employer. See, e.g., Cummings Trucking Co. v. Dean, 628 So.2d 902 (Ala.Civ.App.1993). When an employee’s employment duties necessitate frequent travel, the travel itself constitutes part of the employment service, such that a traveling employee remains in the course of the employment so long as he or she is engaged in travel incidental to the discharge of the employment objec-fives and not in pursuit of an exclusively personal errand. See Crofford v. J.B. Hunt Transp., Inc., 692 So.2d 837 (Ala.Civ.App.1996). In that sense, while in the midst of work-related travel, a traveling employee is neither “going to” nor “coming from” the employment premises but, actually, is in the sphere of the employment throughout the journey so that the general rule does not apply. See Craig v. Val Energy, Inc., 47 Kan.App.2d 164, 274 P.3d 650 (2012).

In this case, the employer retained the employee to perform the integral function of its business—providing hospice care to terminally ill patients, 98% to 99% of whom receive such care in their own homes. To accomplish the core business of the employer, the employee was expected to use her own automobile to travel to and from her patients’ homes on a daily basis. Frequent automobile travel to and from her home unquestionably constituted an essential part of the job duties of the employee from which the employer derived its primary economic benefit. The employer premised its entire business model on such travel. The employer could have acknowledged the inherent work-related nature of the travel to and from her home by reimbursing the employee for the mileage she incurred during that travel, but the mere fact that it drafted its company policy generally to exclude such reimbursement does not transform the travel to and from the home of the employee into a purely personal errand. See Olsten-Kimberly Quality Care v. Parr, 965 S.W.2d 155, 156 (Ky.1998).

Under the circumstances, as a matter of law, the employee, as a traveling employee, remained on duty and within the employment -premises during her travel to and from her home. At trial, and on appeal, the parties narrowly focused on whether the employee’s accident arose in the course of the employment because the employee had yet to complete her paperwork and telephone-call duties, which should not be considered dispositive. As the Kentucky Supreme Court aptly stated:

. “Furthermore, we- agree with the Court of Appeals that the evidence regarding where. and when claimant was suppose[d] to complete the required paperwork is a collateral matter and is irrelevant to the question of whether claimant was performing a service for the employer, by traveling to and from the patient’s home, on the date in question. Namely, the service to the employer, as discussed above, was not that claimant was allegedly returning home to complete the required paperwork, but that the travel, in and of itself, served the interests of the employer. Therefore, we will give no further attention to this issue as it is not outcome determinative.”

Olsten-Kiwherly Quality Care, 965 S.W.2d at 158.

The employee was not engaged in the pursuit of a personal errand at the time of the accident so as to be outside the course of the employment. The evidence shows that, after departing from her last patient visit, the employee stopped at a pharmacy on her way home to obtain a prescription for her personal use. The employee had left the pharmacy, had returned to the roadway en route to her home, and had been traveling for some period when the automobile accident happened. Notably, the accident occurred at 3:45 p.m. within the employee’s regularly scheduled workday of 8:00- a.m. to 4:30 p.m. Thus, at the time of the accident, the employee had completed her personal errand, which, both in time and distance, constituted but an insubstantial deviation from her route, and had resumed her work-related travel back to her home so as to be back within the course of the employment. See Meeks v. Thompson Tractor Co., 686 So.2d 1213 (Ala.Civ.App.1996) (substantial evidence, indicating that worker had stopped at convenience store along business route .but had resumed business after completing purchase when accident that caused the death of worker occurred, supported determination that accident arose out of and in the course of the employment so as to defeat a motion for a summary judgment). The employee was not pursuing a purely personal errand once she returned to her route home, and, thus, the automobile accident arose in the course of her employment.

The occupational hazard that claimed the life of the employee materialized while she was engaged in a vital employment activity during her work hours at a place her employer expected she would be. The employee had not completely abandoned her employment for a purely personal mission. The trial court correctly determined that the death of the employee was caused by an accident in the course of her employment with the employer. Because the automobile accident arose out of and in the course of the employee’s employment, the trial court correctly determined the liability of the employer for death benefits under the Act.

The Credit Issue

The trial court also did not err in refusing to credit $134,617.50 in life-insurance and accidental-death benefits paid to the dependent against the employer’s workers’ compensation liability. Those proceeds came from policies funded by the employer and insuring the life of the employee, which the employer maintains should reduce its liability for death benefits. However, the legislature has not enacted any credit or setoff provision for fringe benefits payable to a dependent due to the death of an employee.

Section 26—5—8(a), Ala.Code 1975, provides:

“Option to insure risks. An employer subject to this chapter [i.e,, the Act] may secure the payment of compensation under this chapter by insuring and keeping insured his or her liability in some insurance corporation, association, organization, insurance association, corporation, or association formed of employers and workers or formed by a group of employers to insure the risks under this chapter, operating by mutual assessment or other plans or otherwise. Notwithstanding the foregoing, the insurance association, organization, or corporation shall have first had its contract and plan of business approved in writing by the Commissioner of the Department of Insurance of Alabama and have been authorized by the Department of Insurance to transact the business of workers’ compensation insurance in this state and under the plan. Notwithstanding any other provision of the law to the contrary, the obligations of employers under law for workers’ compensation benefits for injury of employees may be insured by any combination of life, disability, accident, health, or other insurance provided that the coverages insure without limitation or exclusion the workers’ compensation benefits of this state.”

Section 25-5-8(a) grants an employer the option of either insuring its workers’ compensation risks by purchasing and maintaining a policy of workers’ compensation insurance or by purchasing and maintaining a combination of life, disability, accident, health, and other insurance insuring workers’ compensation benefits. The employer does not cite any evidence in the record to substantiate that the employer had elected the. second option, such that the life-insurance and accidental-death benefits should be considered as advance payments from its workers’ compensation insurance' plan rather than as supplemental fringe benefits, as the evidence suggests they were treated. Section 25-5-8(a), which regulates only the manner in which workers’ compensation risk is secured, does not otherwise provide that an employer should receive credit against its liability for death benefits in the amount of any life-insurance and accidental-death benefits paid to a dependent as the employer implies.

Section 25-5-57(c)(l), Ala.Code 1975, provides:

“The employer may reduce or accept an assignment from an employee of the amount of benefits paid pursuant to a disability plan, retirement plan, or other plan providing for sick pay by the amount of compensation paid, if and only if the employer provided the benefits or paid for the plan or plans providing the benefits deducted.”

Section 25-5-57(e)(l) provides an employer a credit or setoff in the' amount of any employer-funded sick-pay benefits paid to an employee. See Ex parte City of Birmingham, 988 So.2d 1035 (Ala.2008). Life-insurance and accidental-death benefits are not “sick pay,” and, even if those benefits could be considered sick pay, the statutory setoff applies only to compensation owed to an employee, not to death benefits owed to a dependent.

Section 25-5-57(c)(3), Ala.Code 1975, provides, in pertinent part:

“If an employer continues the salary of an injured employee during the benefit period or pays similar compensation during the benefit period, the employer shall be allowed a setoff in weeks against the compensation owed under this article [i.e., Article 3 of the Act].”

The legislature enacted § 25-5-57(c)(3) in order to prevent a claimant from recovering workers’ compensation benefits during periods when the claimant is not actually losing pay. See 1 Terry A. Moore, Alabama Workers’ Compensation § 16:32 (2d ed.2013). As an exception to the general scheme set out in § 25-5-67, because it reduces the compensation otherwise payable, § 25-5-57(c)(3) should be construed strictly. See generally Mobile Liners, Inc. v. McConnell, 220 Ala. 562, 126 So. 626 (1930).

Section 25-5-57(c)(3) does not specifically give an employer credit for the amount of life-insurance or accidental-death benefits paid, which benefits are not considered “salary” or “similar compensation” in the ordinary meaning of those terms. Moreover, the statute grants a credit for the “weeks” in which the employer continues the salary of the employee or pays similar compensation. In other words, for each week the employer continues the salary of an employee or pays similar compensation, the statute relieves the employer from paying workers’ compensation benefits for that week. In that sense, the legislature intended the credit to apply when an employer continues paying an employee’s salary or a salary replacement in regular intervals so as not to interrupt the flow of supportive income. The legislature did not intend that the dollar amount of lump-sum payments of life-insurance or accidental-death benefits would be credited against death benefits.

In its judgment, the trial court denied the credit on the basis that the employer did not prove that it intended the life-insurance and accidental-death benefits to be paid in lieu of workers’ compensation benefits. The trial court noted that the policies did not require the employee to name a dependent as a beneficiary. In fact, some of the insurance proceeds were paid to the adult daughter of the employee who was not an eligible dependent entitled to any death benefits under the Act. From that evidence, the trial court reasoned that the employer did not treat its insurance policies as substitutes for workers’ compensation benefits. This court is not bound by the reasoning of the trial court, but “will affirm the trial court on any valid legal ground presented by the record, regardless of whether that ground was considered, or even if it was rejected, by the trial court.” Liberty Nat’l Life Ins. Co. v. University of Alabama Health Servs. Found., P.C., 881 So.2d 1013, 1020 (Ala.2003). Because the employer was not entitled to a credit for life-insurance and accidental-death benefits under § 25-5-8 or § 25-5-57(c) as explained above, I concur' in the result of the main opinion holding that the judgment denying that credit is due to be affirmed.

      . Allstate later filed a motion in which it elected to opt out of the action, and, on January 29, 2015, the circuit court entered an order dismissing Allstate from the action.

      . Thereafter, the circuit court granted a motion filed by the Healthcare Workers' Compensation Self-Insurance Fund in which it sought to intervene to enforce its subrogation rights pursuant to § 25-5-11(a), Ala.Code 1975.

      . Generally, an appeal may be taken from only a final judgment. See § 12-22-2, Ala. Code 1975. A final judgment is one "that conclusively determines the issues before the court and ascertains and declares the rights of the parties involved." Bean v. Craig, 557 So.2d 1249, 1253 (Ala. 1990). The circuit court did not sever Allen's claims against Po-gue and Maples pursuant to Rule 21, Ala. R. Civ. P.; instead, it ordered a separate trial of the workers' compensation action under Rule 42(b), Ala. R. Civ. P. Thus, the judgment was not a final judgment because it did not resolve all the issues before the court or ascertain and declare the rights of all the parties. See Stephens v. Fines Recycling, Inc., 84 So.3d 867, 872 (Ala.2011), for a thorough explanation of the distinctions between severance under Rule 21 and a separate trial under Rule 42(b).
      The main exception to the requirement that an appeal be taken from a final judgment is when a trial court has certified a judgment deciding fewer than all the pending claims or resolving the issues involving fewer than all the parties as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. See Bean, 557 So.2d at 1253. Therefore, we reinvested the circuit court with jurisdiction to consider whether to enter an order certifying the judgment as final pursuant to Rule 54(b). The circuit court entered an order certifying the judgment as final pursuant to Rule 54(b) on April 21, 2016; therefore, the judgment is a final judgment capable of supporting an appeal.

      . The company policy regarding mileage reimbursement could have been relevant to prove that this case does not fall within the traveling-expenses exception to the going and coming rule. See Sun Papers, Inc. v. Jerrell, 411 So.2d 790 (Ala.Civ.App.1981). However, as explained supra, the going and coming rule does not even apply under the circumstances of this case. Hence, the fact that the employer did not reimburse the employee for mileage while traveling from her last patient visit to her home and that other employees therefore subjectively considered such travel to be outside the course of the employment is immaterial.


author: BRYAN, Justice. MURDOCK, Justice

text:
    Ex parte HOSPICE FAMILY CARE. (In re Hospice Family Care v. Joseph Allen, dependent spouse of Suzanne Sharp Allen, deceased).
    1150995.
    Supreme Court of Alabama.
    Sept. 2, 2016.

      Frederick L. Fohrell and Christopher L. Lockwood of Wilraer & Lee, P.A., Huntsville, for petitioner.
    Submitted on certiorari petition only.
   BRYAN, Justice.

WRIT DENIED. NO OPINION.

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

MURDOCK, J., concurs in part and dissents in part.

MURDOCK, Justice

(concurring in part and dissenting in part).

As set out in more detail in the opinion of the Court of Civil Appeals, Hospice Family Care v. Allen, 218 So.3d 1222 (Ala.Civ.App.2016), one of the issues in this case is the applicability of the Alabama Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975 (“the Act”), to a wrongful-death claim arising out of the death of Suzanne Sharp Allen as a result of an automobile accident. I would grant the writ because I believe there is a probability of merit in the argument of Allen’s employer, Hospice Family Care, that, under the “going and coming” rule, there was no legal causation.

Allen’s primary purpose in driving her car at the time of the accident was to go home in the afternoon, after running a personal errand to the drugstore, following the completion of visits by her to the homes of hospice patients. It is true that Allen typically interrupted her at-home activities and resumed her work at some point after arriving home by calling in certain information to her employer and electronically transcribing and transmitting certain medical information regarding each patient she had seen that day. It appears to me, however, that, until she engaged in such activities, she was simply “on her way home from work” or “at home from work.” And I do not see that the exception recognized by the Court of Civil Appeals in Tucker v. Die-Matic Tool Co., 652 So.2d 263 (Ala.Civ.App.1994)—when an employee, during his or her travel to and from work, is engaged in some duty for his or her employer—applies.

      . Under the "going and coming” rule, accidents occurring while a worker is traveling on a public road to or from work generally fall outside the course of the employment. E.g., McDaniel v. Helmerich & Payne Int’l Drilling Co., 61 So.3d 1091, 1093 (Ala.Civ.App.2010).