author: BRYAN, Justice.

text:
    Edwyna IVEY v. ESTATE OF R.E. IVEY
    1160280
    Supreme Court of Alabama.
    September 8, 2017 Rehearing Denied November 9, 2017
    Mark John Christensen of Christensen & Christensen, Andalusia, for appellant.
    J. Milton Coxwell, Jr., of Coxwell & Coxwell, Monroeville, for appellee.
   BRYAN, Justice.

Edwyna Ivey ("Edwyna") appeals from a judgment of the Monroe Circuit Court ("the trial court") denying her petition for an omitted-spouse share of the estate of her late husband, R.E. Ivey ("R.E."). For the reasons set forth herein, we reverse and remand.

Facts and Procedural History

In 1975, R.E. executed a will leaving the entirety of his estate to his first wife, Nancy S. Ivey ("Nancy"), or, in the event Nancy preceded him in death, to his and Nancy's four children-Sharyl I. Eddins ("Sharyl"), William R. Ivey ("Robbie"), Dell Moody ("Dell"), and Ty Ivey ("Ty") (hereinafter collectively referred to as "the children")-in equal shares. It is undisputed that R.E.'s 1975 will is the only will he ever executed and that he never executed a codicil to that will. Nancy died in 2001, and, in 2004, R.E. married Edwyna. R.E. died on March 26, 2014, survived by Edwyna and the children. On June 27, 2014, Sharyl, as the named executor of R.E.'s will, petitioned the Monroe Probate Court ("the probate court") to admit R.E.'s will to probate. Edwyna then petitioned the probate court for an intestate share of R.E.'s estate pursuant to § 43-8-90, Ala. Code 1975, on the basis that R.E.'s will contained no provision for her. Section 43-8-90, the omitted-spouse statute, provides:

"(a) If a testator fails to provide by will for his surviving spouse who married the testator after the execution of the will, the omitted spouse shall receive the same share of the estate he would have received if the decedent left no will unless it appears from the will that the omission was intentional or the testator provided for the spouse by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision be reasonably proven.
"(b) In satisfying a share provided by this section, the devises made by the will abate as provided in section 43-8-76."

The probate court admitted R.E.'s will to probate, and, upon petition from Sharyl, the trial court subsequently entered an order removing the administration of R.E.'s estate from the probate court.

In response to Edwyna's petition, Sharyl argued that Edwyna's omitted-spouse claim was due to be denied on the grounds that R.E. and Edwyna had "a mutual antenuptial agreement ... wherein they each ... agreed that neither would make any affirmative claim in and to the estate of the other" and that R.E. had made "alternative provision[s]" for Edwyna in lieu of a testamentary provision. Specifically, Sharyl alleged that R.E. had provided for Edwyna by transfer outside his will in that (1) he "performed substantial renovation work in [Edwyna's] house in Andalusia, which materially increased the value of her property," and Edwyna "had no labor cost involved in the work" and (2) he and Edwyna had "established some joint bank accounts with right of survivorship" that, Sharyl contended, "substantially exceeded $100,000 in total value." On August 8, 2016, the trial court held an evidentiary hearing on Edwyna's petition, and the testimony and evidence presented at that hearing provided the following relevant facts.

Although it was undisputed that R.E. and Edwyna did not execute a written antenuptial agreement, Sharyl testified that "there was a verbal agreement made before the marriage, during the marriage, that ... [R.E.'s and Edwyna's] estates were separate." According to Sharyl, before R.E. and Edwyna married, they

"talked about the fact that they had everything planned out, that what was hers would stay hers and what was his would stay his and that that's the way they wanted it. She made the statement that she didn't need anybody's money. She had her own money and could take care of herself."

Sharyl further testified that she heard R.E. and Edwyna make similar statements "many times" throughout the course of their marriage, and multiple witnesses corroborated Sharyl's testimony. Lance Eddins ("Lance"), Sharyl's son, testified that R.E. and Edwyna's "most prevalent comment was always their affairs were always separated, meaning that her money was hers and his money was his." James Moody, Dell's husband and R.E.'s son-in-law, testified that Edwyna "had made the statement that whatever [R.E. and Nancy] ... had before they got married ... belonged to [R.E.] and [the children], and the only thing [Edwyna] felt like she ... should get ... was anything [she and R.E.] accumulated while they were married." Larry Eddins ("Larry"), Sharyl's husband, testified that "Edwyna would say things like, I'm not getting into [the children's] inheritance or that kind of thing."

Sharyl also testified to a conversation she had "many times" with R.E. regarding his will:

"I asked him [ (R.E.) ] ... [D]o you have everything in order; do you have everything like you want it? He said, I do, I do. And I said, so you're okay with everything? You've got everything like you want it? He said, yeah, you know we have told you over and over that what's [Edwyna's] is hers and what is mine is mine and that you know that I have the will ..., and it says exactly what I want it to say."

Robbie testified to a similar conversation he had had with R.E. a few months before R.E.'s death:

"Q. Did [R.E.] show [the will] to you on that occasion?
"A. Yeah, ... he said, everything is going to be divided up equally between the four kids-which I'd already known that. And he said, y'all don't need to worry about Edwyna. She's got her few hundred acres, or whatever it is, out in Conecuh County, farmland. She's got the insurance money from her son, and then she's got her retirement and other investments that are out there. She said-basically, the agreement was, you know, what's hers is hers, mine is mine, and she's got plenty to take care of herself.
"Q. Specifically, did he talk about the need or the need not to make a new will?
"A. He had said-at one point they had talked about making new wills, but both of them said it was too expensive-back to they're both frugal, and he said, nothing is going to change anyway, so why change it, other than update it with new dates."

Edwyna disputed the testimony indicating that she and R.E. had agreed that "what was hers would stay hers and what was his would stay his." She testified: "Until this [litigation] c[a]me up, I never heard that statement before. You see, that's all [Sharyl's] relatives that are swearing that that's what we said." Contrary to the testimony indicating that R.E. and Edwyna had agreed that neither of them would be entitled to a share of the other's estate, Edwyna testified that R.E. intended to provide her with a share of his estate but that he had elected not to execute a new will because he believed "the state" would determine Edwyna's share of his estate. According to Edwyna, that belief was based on articles she and R.E. had read in Reader's Digest, a general-interest periodical. Regarding those articles and her and R.E.'s understanding of them, Edwyna testified:

"A. Well, we had the Reader's Digest legal guide, and in there it said that, if somebody died and left a widow-a second marriage, then the state would determine how much she would get, and it was-some states is half the estate and some is a fourth. That's what [R.E.] went by and what I went by. [R.E.] asked me, are you satisfied with that? And I said, yes. So he didn't want to go out and spend money for an attorney.
"....
"Q. You and [R.E.] both discussed this and were satisfied with whatever the state law required?
"A. That's right."

Regarding the provisions R.E. allegedly made for Edwyna by transfers outside the will, it was undisputed that, when R.E. and Edwyna began dating, R.E. lived in his house in Monroeville and Edwyna lived in her house in Andalusia. After they married, R.E. retained his house in Monroeville, but he and Edwyna moved into Edwyna's house (hereinafter referred to as "the marital home") and lived there throughout their marriage. Edwyna executed a will that gave R.E. a life estate in the marital home. According to Sharyl, it "wasn't very far into the marriage" when R.E. asked her if she and Larry would help Edwyna and him remodel the kitchen in the marital home. Sharyl testified that she and Larry were happy to assist with the renovations and that, in fact, she suggested that Edwyna also make other renovations that, Sharyl said, would increase the value of the marital home. Although Edwyna initially resisted making additional renovations, Sharyl testified that "the project got bigger and bigger" until it eventually included a complete remodeling of the kitchen, two bathrooms, and a sunroom; "re-doing" floors; removing doors between the kitchen and the living room "to make it more accessible"; painting; upgrading appliances; and "doing" garage doors. With the exception of the replacement of kitchen cabinets, which Edwyna paid a contractor to replace, Sharyl, Larry, and Robbie provided the labor for the renovations at no charge to Edwyna. However, Sharyl testified that Edwyna attempted to pay Larry and her for their labor but they refused any payment because "that's the way we wanted it. I would like to do that for my dad at anytime and for Edwyna."

Although Sharyl, Larry, and Robbie provided the bulk of the labor required for the renovations, R.E. and Edwyna purchased the necessary materials. However, there was no evidence of the total cost of the materials, and it was unclear how much of the materials R.E. and Edwyna each purchased separately. Sharyl testified that Edwyna "wanted it to be just her money that paid for [the renovations] because that was her house." However, she also testified that R.E. purchased "some of the things." It was undisputed that the renovations to the marital home increased its value, but there was no evidence as to the actual pre- or post-renovation value of the marital home. Rather, testimony merely indicated that, after the renovations, the marital home was "top-notch" and "pretty close" to "tip-top condition."

When asked why R.E. wanted to renovate the marital home, Sharyl testified:

"Daddy told me that he wanted [the marital home] left so that, if something happened to him, Edwyna would not be taken by somebody else, kind of like she was on her sun room. And he wanted things to be good and to be working so that she would not be taken by some other person that came along ... to fix something. He wanted it to be more modernized."

Robbie corroborated Sharyl's testimony regarding R.E.'s motivation for renovating the marital home:

"[Edwyna] had gotten ripped off when she did the screened-in porch, and I think that was kind of the running theme, if something happened to him, he didn't want Edwyna to be ripped off again, so let's get the house in order, get it more upgraded, so that she wouldn't have to worry about that in the future."

Lance and Larry similarly testified, respectively, that R.E. wanted to renovate the marital home because he wanted to ensure "that [Edwyna's] house was taken care of and leave it in a better condition if he was not able to be here" and that "he wanted things to help [Edwyna] out down the road ... to make it easier in her life."

Regarding the accounts on which R.E. and Edwyna were joint tenants, it was undisputed that, before R.E. died, he sold a trailer for approximately $60,000 and that he intended for the proceeds from that sale to be distributed equally among the children if he did not use the proceeds to purchase a new truck. Because R.E. was undecided about purchasing a truck, he deposited the proceeds into a joint account ("the trailer account") he shared with Edwyna, ownership of which succeeded to Edwyna upon R.E.'s death. Approximately two months after R.E.'s death, Edwyna sent a letter regarding the trailer account to the children. That letter stated, in pertinent part:

"Today, I elected to transfer funds out of mine and your Dad's name for the sale of the trailer ....
"The reason being: With the funds left in my name only, Winston [ (Edwyna's son] ) could have claimed a portion since my name was on the account only; therefore, I have changed the account to:
"Mrs. Edwyna L. Ivey with the beneficiaries: [Sharyl] Eddins, Ty Ivey, Dell Moody, and Robbie Ivey.
"The way the account is set up: If one of you or all four of you want your fourth of the money, you can advise me and I will send you each a check. Or, you can wait until I die and receive your portion of the Money Market Account .... Each is to receive a fourth of the proceeds at the time you desire the money or at my death.
"....
"I know your Dad would want each to receive the same portion of the proceeds from the trailer. ...
"I hope this is satisfactory to each one as I did not want to involve Winston in any way. She (the lady at the bank) assured me that since it is in my name and you four children are the beneficiaries, he would not be able to get any money from this account .... I just wanted the four children to get the proceeds and I felt that is the way your Dad would want it."

In addition to the trailer account, Sharyl testified that Edwyna also succeeded to ownership of three money-market accounts on which she and R.E. were joint tenants, each of which contained approximately $15,000 at the time of R.E.'s death. Regarding those accounts, Sharyl offered into evidence a handwritten note she made during a meeting with Edwyna shortly after R.E.'s death, at which she and Edwyna discussed R.E.'s estate. That note lists, among other things, the identical balances of the three money-market accounts, with a name or names next to each balance. Written next to one of the money-market balances is Sharyl's name; written next to another are R.E.'s and Edwyna's names; and written next to another is Robbie's name. Although there was no testimony as to the significance of the names written beside the balances, Sharyl testified that her note indicates "what [Edwyna] had, where the money was, and what was to be done with that money." (Emphasis added.)

Two days after Edwyna sent the letter regarding the trailer account, she sent a letter to Sharyl regarding one of the three money-market accounts, presumably the account identified by Sharyl's name (hereinafter referred to as "the first money-market account"). That letter stated, in pertinent part:

"You will recall that your Dad had set up a $15,000 Money Market Account in your name and in his name at CCB.
"On March 10, he elected to move the account from CCB and it was $15,247.85, which was put in Southern Independent Bank, in Andalusia, Alabama, along with the check he received from the sale of the trailer, in mine and his name.
"The account was then left in my name, after the passing of your Dad, and I did not want it to look like it was part of my estate so I had it changed to my name and you as the beneficiary. The lady at the bank said I could write you a check any time you want it and I can wire transfer it or mail it to you. If I should die before you get this money, no one could receive it but you as you are the beneficiary. Let me know what you want done with this and I will abide by your wishes. I would like for it to be handled at your earliest convenience so I will know you got the amount due you.
"Hope this is all satisfactory to you ... I just wanted it so Winston would not think it was part of my estate."

Based on Edwyna's letters, Sharyl testified that the funds in the trailer account and the first money-market account "were supposed to be for us [ (the children) ]," and it was undisputed that Ty asked for and received his share of the funds in the trailer account. However, although Edwyna's letters indicated that she would distribute the funds in those accounts to the children upon their requests, Sharyl testified that, "upon asking about it, we were told that her lawyer said don't release it." When asked if she intended to distribute the funds in the trailer account and the first money-market account to the children, Edwyna testified that she would "just wait and see what the judge says." However, Edwyna later testified that, "after [the children] treated me so dirty and have caused me all this stress and everything that I've been under, I wouldn't give them a dime."

As to the other two money-market accounts, Sharyl testified that one of those accounts, presumably the one identified on the note she made while meeting with Edwyna after R.E.'s death by R.E.'s and Edwyna's names, was "money that ... [R.E.] had put ... into an account for Edwyna." However, Sharyl offered no similar testimony as to the third money-market account, nor was there any other evidence as to R.E.'s intent with respect to ownership of the third money-market account, other than Sharyl's testimony that her note indicates "what was to be done with that money" and the fact that the note identifies that account as Robbie's.

Finally, Sharyl testified that Edwyna also succeeded to ownership of approximately $10,000 in a checking account on which she and R.E. were joint tenants. Edwyna testified that the joint checking account was an account she owned before she married R.E., that she added R.E.'s name to the account after they married, and that the couple used that account "to buy groceries and pay electricity bills and stuff like that." Although Edwyna conceded that R.E. deposited funds into the joint checking account throughout their marriage, there was no evidence indicating the value of the account at the time Edwyna added R.E.'s name to it or of R.E.'s contributions to the account.

On August 24, 2016, the trial court entered the judgment from which Edwyna appeals, denying her petition for an omitted-spouse share of R.E.'s estate. As a threshold matter, the trial court stated that, at the parties' joint request, it would adjudicate Edwyna's request for homestead, exempt-property, and family allowances, see supra note 1, at a later date and that it was ruling on only Edwyna's omitted-spouse claim. The trial court then made detailed factual findings, set forth, in pertinent part, as follows:

"R.E. and Edwyna never executed a written antenuptial or post-nuptial agreement. Under the law of Alabama, for such an agreement to be enforceable by its terms in law it must be in writing. ( § 43-8-72, Ala. Code 1975.) However, the Court finds from the evidence that R.E. and Edwyna had a verbal agreement and mutual understanding which provided that 'what is mine will remain mine and what is his will remain his' and likewise. Various witnesses confirmed that this statement was repeated by both R.E. and Edwyna on numerous occasions throughout their marriage in the presence of family and friends. Although this verbal agreement is not enforceable as a matter of law since it is not in writing, it nonetheless sheds significant light on the intentions of the parties to the marriage with respect to the dispositions of their estates, and specifically whether a spouse was unintentionally omitted in the terms of a will.
"....
"In the case at bar, the Court finds that R.E. did not unintentionally disinherit Edwyna. Instead, the Court finds that R.E. specifically re-examined his old will during his last illness, and confirmed that the terms of the old will were what he still wanted, in view of his mutual agreement and understanding with Edwyna. Therefore, the Court concludes that the underlying purpose for application of the omitted-spouse statute (i.e., to remedy the unintentional disinheritance of the surviving spouse) is not established by the facts of this case. If the underlying purpose for applying the omitted-spouse statute is not presented by the facts and the evidence, it would seem that the omitted-spouse claim could be disposed of at this juncture. However, the Court is not aware of any reported Alabama appellate decision that considers this precise issue. Therefore, the Court will continue with an analysis of the omitted-spouse statute, and the circumstances under which it is inapplicable.
"The omitted spouse statute contains two exceptions, one of which states that the statute does not apply if the spouse is specifically excluded by the terms of the will, which is obviously not presented by the facts in this case. ...
"The other exception in the omitted spouse statute is based upon a finding that the testator provided for the surviving spouse outside the will by inter vivos transfers or otherwise, in lieu of testamentary transfers. In the case at bar, the evidence is undisputed that R.E. undertook to make significant renovations, remodeling and restoration work in Edwyna's home in Andalusia. R.E. and members of his family did the bulk of this work, with no charge to Edwyna, except for materials. The entire remodeling and renovation significantly increased the value and enjoyment of Edwyna's home. The Court finds from the evidence that R.E. stated that in the event of his death he wanted to make sure that he left Edwyna with a functional house, in good repair, because she would not be able to see to the work herself. He also stated that a contractor had taken advantage of Edwyna on some work in her house on a prior occasion, and he wanted to avoid that circumstance. R.E. further stated that he intended to return to live in a small house in Monroeville if he outlived Edwyna. Considering the underlying facts of this case, the Court finds and determines that the work on Edwyna's home should be viewed as an inter vivos transfer by R.E. in lieu of a testamentary gift that satisfies the second exception under the omitted spouse statute.
"The Court further finds that approximately $100,000 in survivorship bank deposits which originated with R.E. passed to Edwyna on his death, and that such funds passing to Edwyna should be viewed as a transfer [in] lieu of a testamentary gift, also satisfying the second exception under the omitted spouse statute.
"In reaching this conclusion, the Court finds specific guidance from the case of Wester v. Baker, 675 So.2d 447 (Ala. Civ. App. 1996), which has similar facts, and the case of Ferguson v. Critopoulos, 163 So.3d 330 (Ala. 2014), which contains a detailed analysis of the omitted spouse statute, and the enumeration of several factors which a court is given discretion to consider in weighing a claim under the omitted spouse statute, including the following factors which the Court has specifically considered and afforded weight, viz: (1) inter vivos transfer by R.E. consisting of the work on Edwyna's house; (2) the value of the work on Edwyna's house; (3) the value of the survivorship accounts which passed to Edwyna; (4) R.E.'s statements that he had specifically reexamined the terms of his old will, and did not elect to change the will; (5) the substantial nature of Edwyna's separate estate that she brought into the marriage; (6) the beneficiaries under R.E.'s will, who are his children, with a consideration that a significant part of his estate consisted of ancestral property which was acquired from his first wife, the mother of his children; and (7) the duration of the marriage."

Given those findings, the trial court denied Edwyna's omitted-spouse claim and certified its judgment as final pursuant to Rule 54(b), Ala. R. Civ. P. See Hellums v. Reinhardt, 567 So.2d 274 (Ala. 1990). Edwyna timely appealed.

Standard of Review

" '[W]hen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust.' Philpot v. State, 843 So.2d 122, 125 (Ala. 2002). 'However, where the facts before the trial court are essentially undisputed and the controversy involves questions of law for the court to consider, the court's judgment carries no presumption of correctness.' Allstate Ins. Co. v. Skelton, 675 So.2d 377, 379 (Ala. 1996). Questions of law are reviewed de novo. BT Sec. Corp. v. W.R. Huff Asset Mgmt. Co., 891 So.2d 310 (Ala. 2004)."

Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala. 2004).

Discussion

Section 43-8-90 provides that, if a testator's will does not provide for the testator's surviving spouse who married the testator after the execution of the will, the omitted spouse is entitled to an intestate share of the testator's estate unless one of two exceptions applies:

"(1) if it appears from the will that the omission of the surviving spouse was intentional or (2) if the testator provided for the surviving spouse with transfers outside the will with the intent that those transfers were in lieu of a provision in the will."

Ferguson v. Critopoulos, 163 So.3d 330, 343 (Ala. 2014) (emphasis added). If either of those exceptions applies, the surviving spouse is not entitled to an omitted-spouse share of the testator's estate. Id. Conversely, if neither exception applies, the surviving spouse "shall receive" an omitted-spouse share of the testator's estate. § 43-8-90 (emphasis added).

In this case, it was undisputed that there is no language in R.E.'s will indicating that the omission of a future spouse from the will was intentional. As a result, the trial court correctly determined that the first exception in the omitted-spouse statute is inapplicable. See Ferguson, 163 So.3d at 343 ("Nothing in the decedent's will indicates that the omission of Katina from the will was intentional; therefore, the first exception to the omitted-spouse share is not applicable."). Thus, unless Sharyl, as the proponent of the will, proved that R.E. provided for Edwyna by transfer outside the will and that he intended for such a transfer, if any, to be in lieu of a testamentary provision, Edwyna is entitled to an omitted-spouse share of R.E.'s estate. See Hellums, 567 So.2d at 277 (holding that "once the surviving spouse proves that he was omitted from the will, the burden of proof shifts to the proponent of the will to show that the testator provided for the surviving spouse by inter vivos transfers and that those transfers were intended to be in lieu of a testamentary provision" (emphasis added)); and Becraft v. Becraft, 628 So.2d 404, 406 (Ala. 1993) (noting that, to overcome a prima facie showing of an omitted-spouse claim, the opposing party "must reasonably prove both that [the testator] provided for [the surviving spouse] by gift outside the will and that he intended this gift to be in lieu of a testamentary gift" (emphasis added)).

As noted above, the trial court determined that Edwyna received two inter vivos transfers in lieu of a testamentary provision: "the work on [the marital home]" and "approximately $100,000 in survivorship bank deposits which originated with R.E. [and] passed to Edwyna on his death." On appeal, Edwyna argues that, even if the renovations to the marital home and the funds in the joint bank accounts constitute "transfers" to her for purposes of § 43-8-90, Sharyl failed to carry her burden of proving that R.E. intended for those transfers to be in lieu of a testamentary provision. For the reasons set forth below, we agree.

I. The Renovations to the Marital Home

In reaching its conclusion that the renovations to the marital home constituted a transfer intended to be in lieu of a testamentary provision, the trial court noted that it was guided by Wester v. Baker, 675 So.2d 447 (Ala. Civ. App. 1996). In Wester, the Coosa Circuit Court denied Owen W. Wester's petition for an omitted-spouse share of the estate of his deceased wife, Virginia C. Eason. The evidence indicated that, before Wester and Eason married, Eason had lived in a house that she owned. After Wester and Eason married, they purchased three parcels of real property in joint tenancy with right of survivorship and lived in a house on that property throughout their marriage. Although Wester testified that he alone had purchased the marital property, there was conflicting testimony indicating that Eason had "helped" Wester purchase the property "so that Wester would have a house of his own and that [Eason] would not have to change her will." 675 So.2d at 448. Thus, because there was evidence from which the circuit court could have found that Eason contributed her own funds toward the purchase of the marital property and that she intended for that purchase to be in lieu of a testamentary provision for Wester, the Court of Civil Appeals affirmed the circuit court's judgment.

The circumstances in this case, however, are distinguishable from those in Wester. Unlike in Wester, where there was testimony from which the circuit court could have determined that Eason contributed her own funds toward the purchase of the house Wester received after her death, here it is undisputed that Edwyna owned the marital home before she married R.E. The trial court equated the (indeterminate) increase in the value of the marital home with Eason's purchase of marital property in Wester, but, even if we assume (which we do not) that renovating property so as to increase its value is analogous to purchasing property, R.E.'s contributions in renovating the marital home were apparently minimal. Whereas in Wester there was evidence indicating that Eason contributed funds toward the purchase of the house Wester received, the evidence in this case indicated that the only "transfer" R.E. made to Edwyna with respect to the renovation of the marital home was to purchase an unknown percentage of the necessary materials and to appeal to his family to provide free labor. However, it was also undisputed that Edwyna purchased some of the materials necessary to the renovations, and, in fact, it appears that Edwyna purchased the majority of the materials because, according to Sharyl, Edwyna "wanted it to be just her money that paid for [the renovations] because that was her house." It was also undisputed that Edwyna offered to pay for the labor but that her offer was refused. Although today's opinion should not be interpreted as conclusive of the issue whether renovations to real property can ever constitute a transfer for purposes of § 43-8-90, where the evidence indicates only that the testator solicited free labor and purchased an unknown percentage of the materials necessary to renovate property the testator's surviving spouse owned before marrying the testator, those contributions from the testator, without more, do not constitute a "transfer" for purposes of § 43-8-90.

More significantly distinguishing Wester and this case is the fact that, in Wester, there was testimony indicating that Eason had expressly stated that she contributed funds toward the purchase of the house Wester received so that she would not have to change her will, i.e., that Eason intended for the purchase of the house to be in lieu of a testamentary provision for Wester. In this case, although both Sharyl and Robbie testified that R.E. had indicated to them that he did not want to change his will, they did not testify that R.E. had indicated that he wanted to renovate the marital home so that he would not have to change his will. To the contrary, Sharyl and Robbie testified, respectively, that R.E.'s motivation for renovating the marital home was specifically so that Edwyna "would not be taken by some other person that came along ... to fix something" and because he did not want her "to be ripped off again." See Ferguson, 163 So.3d at 343 (noting that one factor to consider in determining whether nontestamentary transfers were intended to be in lieu of a testamentary provision is "statements made by the testator concerning [the] transfers"). Those statements do not indicate that R.E. intended that the renovation of the marital home was to be in lieu of making a testamentary provision for Edwyna but, instead, indicate that R.E. wanted to renovate the home to protect Edwyna from opportunistic contractors.

As noted above, the fact that a testator makes a nontestamentary transfer to his or her surviving spouse is insufficient in and of itself to preclude an omitted-spouse claim. Indeed, the plain language of the second exception in § 43-8-90 requires more than mere proof that a nontestamentary transfer occurred. Rather, to show that the second exception in § 43-8-90 operates to preclude an omitted-spouse claim, the party opposing the claim must show both that the transfer occurred and that the testator intended for the transfer to be in lieu of a testamentary provision for the surviving spouse. Hellums, supra ; Becraft, supra ; and § 43-8-90. Thus, it is the testator's intent in making the nontestamentary transfer that is dispositive in determining whether the second exception in § 43-8-90 is operative in an omitted-spouse case. Here, the testimony indicated that R.E.'s intent in renovating the marital home was to protect Edwyna from being exploited by unscrupulous individuals in the event he preceded her in death; nothing in the evidence supports the conclusion that R.E. intended such protection to be in lieu of a testamentary provision for Edwyna. Accordingly, even if the renovations to the marital home had constituted a transfer to Edwyna, Sharyl failed to carry her burden of reasonably proving that R.E. intended for those renovations to be in lieu of a testamentary provision.

II. The Joint Bank Accounts

In Hellums, supra, this Court, citing In re Estate of Taggart, 95 N.M. 117, 619 P.2d 562 (N.M. Ct. App. 1980), noted: "Examples of inter vivos transfers that have been held to be in lieu of testamentary provisions are the opening of joint tenancy checking and saving accounts and the assignment of retirement or insurance benefits." Hellums, 567 So.2d at 277-78. However, we reiterate that the mere fact that a testator and his or her surviving spouse are joint tenants on a bank account and that the funds in that account are thus transferred to the surviving spouse upon the testator's death is insufficient, in and of itself, to preclude the surviving spouse's omitted-spouse claim against the testator's estate. See Hellums, supra ; Becraft, supra ; and § 43-8-90 (all providing that the party opposing an omitted-spouse claim must prove the testator's intent with respect to nontestamentary transfers made to the surviving spouse). As the Court of Appeals of New Mexico stated in Taggart:

"Notwithstanding the fact that Mr. Taggart intended to transfer the funds in the checking, savings, and retirement accounts to Margie Taggart, the plaintiffs also had the burden of demonstrating that Mr. Taggart considered the fact that she was not a beneficiary under the will and had intended the transfers to take the place of such testamentary devise."

95 N.M. at 124, 619 P.2d at 569 (emphasis added).

Accordingly, if the party opposing an omitted-spouse claim shows that the claimant received the funds in a joint account shared with the testator, but fails to show that the testator intended for the receipt of those funds to be in lieu of a testamentary provision for the claimant, the claimant will be entitled to an omitted-spouse share of the testator's estate, notwithstanding the fact that the claimant received the funds in the joint account upon the testator's death. See Becraft, supra (affirming a probate court's judgment awarding the surviving spouse an omitted-spouse share of the testator's estate, even though she was the beneficiary of the testator's $25,000 life-insurance policy, because there was conflicting evidence as to whether the testator intended for the insurance proceeds to be in lieu of a testamentary provision); and Estate of Groeper v. Groeper, 665 S.W.2d 367 (Mo. Ct. App. 1984) (reversing the denial of an omitted-spouse claim despite the fact that the testator and his surviving spouse were joint tenants on multiple accounts).

In this case, it was undisputed that R.E. and Edwyna were joint tenants on the trailer account and that the account contained approximately $60,000 when R.E. died. However, it was also undisputed that R.E. intended for the children to inherit the funds in that account; that, in accord with R.E.'s wishes, Edwyna contacted the children and offered to distribute to the children, at their requests, their respective shares of the funds; and that one child, Ty, in fact requested and received his share of the funds. In addition, Sharyl, in inventorying R.E.'s estate, listed as an asset of the estate a cause of action against Edwyna for the funds in the trailer account-a tacit admission by Sharyl that R.E. never intended for those funds to belong to Edwyna. Thus, the evidence undisputedly indicated that R.E. never intended for the funds in the trailer account to belong to Edwyna, and, because he did not intend for those funds to belong to her, it naturally follows that he did not have the requisite intent that those funds would serve in lieu of a testamentary provision for her.

Likewise, although Edwyna succeeded to ownership of the first money-market account upon R.E.'s death, the evidence indicated that R.E. did not intend for the funds in that account to belong to her.

Sharyl did not dispute that R.E. did not intend for the funds in the first money-market account to belong to Edwyna and, in fact, testified that those funds "were supposed to be" for her (Sharyl). In addition, Edwyna's letter to Sharyl regarding the first money-market account indicated that Edwyna offered, as she did with the funds in the trailer account, to distribute those funds to Sharyl at Sharyl's request because she wanted Sharyl to "g[e]t the amount due [her]" and that she had named Sharyl as the beneficiary on that account because she "did not want it to look like [those funds were] part of [Edwyna's] estate." Thus, as was the case with the funds in the trailer account, because the evidence indicated that R.E. did not intend for the funds in the first money-market account to belong to Edwyna, it again naturally follows that he did not have the requisite intent that those funds would serve in lieu of a testamentary provision for her.

With respect to the funds in the other two money-market accounts, the evidence undermines, rather than supports, Sharyl's argument that R.E. intended for the funds in those accounts to be in lieu of a testamentary provision for Edwyna. At the hearing, 11 witnesses, including Sharyl, testified that R.E. and Edwyna made numerous statements, both before and during their marriage, that "what was [Edwyna's] would stay hers and what was [R.E.'s] would stay his" and that "their estates were separate." Matter of Cole's Estate, 120 Mich.App. 539, 328 N.W.2d 76 (1982), involved similar testimony. In that case, Marion Cole petitioned a Michigan probate court for an omitted-spouse share of the estate of her deceased husband, Robert Cole. Although it was undisputed that, upon Robert's death, Marion received funds Robert had deposited in joint bank accounts he shared with her, the Michigan probate court awarded Marion an omitted-spouse share of Robert's estate because it found that Robert did not intend for those transfers to be in lieu of a testamentary provision for Marion. On appeal, the executor of Robert's estate argued that the remedy afforded by Michigan's omitted-spouse statute, which is practically identical to Alabama's, was unavailable to Marion because there was testimony indicating that Robert and Marion had "left their wills unchanged intentionally" and had stated "before and during the marriage that they intended to keep their property separate." 120 Mich.App. at 544, 328 N.W.2d at 78. The Court of Appeals of Michigan, however, determined that such testimony supported the Michigan probate court's finding:

"[W]e note that the executor relies largely on evidence which suggests that the testator did not intend to make any provision whatever for his wife Marion. Such evidence would not support a finding that the transfers outside the will were intended by the testator to be in lieu of a testamentary provision. If the testator intended to make no provision for Marion Cole, then he did not intend the transfers to be such a provision."

120 Mich.App. at 545, 328 N.W.2d at 79 (emphasis added).

Similarly, in this case Sharyl went to great lengths to prove that R.E. and Edwyna intended to keep their estates separate, i.e., that R.E. did not intend to provide Edwyna with anything whatsoever from his estate. However, the evidence does not support-and, in fact, directly contradicts-a conclusion that R.E. intended for the funds in the money-market accounts to be in lieu of a testamentary provision for Edwyna. That is to say, where the evidence indicates that a testator did not intend to provide his or her surviving spouse with anything whatsoever, it would be illogical to conclude that such evidence, without more, is indicative of the testator's intent that the funds in the couple's joint accounts be in lieu of a testamentary provision for the surviving spouse.

Regarding the $10,000 in the joint checking account, the undisputed testimony indicated only that Edwyna owned the account before she married R.E.; that she added R.E. as a joint tenant on the account after they married; that R.E. made deposits into the account throughout the marriage; and that the couple used the account to pay marital expenses. However, as we noted with respect to the money-market accounts, the evidence indicating that R.E. did not intend to provide for Edwyna at all, without more, does not support a finding that R.E. intended for the deposits he made into the joint checking account to be in lieu of a testamentary provision for Edwyna. Furthermore, the testimony that R.E. and Edwyna used the joint checking account to pay marital expenses indicates that R.E.'s intent in making deposits into that account was to contribute funds toward those expenses; nothing in the evidence supports the conclusion that R.E. intended for his contributions to the couple's marital expenses to be in lieu of a testamentary provision for Edwyna.

We reiterate once again that the mere fact that a testator and his or her surviving spouse are joint tenants on a bank account is insufficient in and of itself to avoid application of the omitted-spouse statute. Hellums, supra ; Becraft, supra ; Taggart, supra ; and Groeper, supra. In addition to showing that a testator's joint accounts were transferred to his or her surviving spouse upon the testator's death, the party opposing the surviving spouse's omitted-spouse claim has the burden of "reasonably prov[ing]" that the testator intended for the funds in those accounts to be in lieu of a testamentary provision for the surviving spouse. § 43-8-90. In this case, there was no evidence that would support the conclusion that R.E. intended for the funds in his and Edwyna's joint accounts to be in lieu of a testamentary provision for Edwyna; in fact, the evidence actually cuts against such a conclusion. Thus, Sharyl failed to carry her burden of proof regarding R.E.'s intent with respect to the funds in his and Edwyna's joint accounts, and, as a result, Edwyna's mere succession to ownership of those funds on R.E.'s death did not constitute grounds for denying her omitted-spouse claim.

We recognize that there was evidence from which the trial court could have found that R.E. intentionally disinherited Edwyna and that our reversal of the denial of Edwyna's omitted-spouse claim thus appears, at first blush, to conflict with our statement in Ferguson that "[t]he purpose of § 43-8-90 is to avoid an unintentional disinheritance of the spouse of a testator who had executed a will prior to the parties' marriage. It serves to give effect to the probable intent of the testator and protects the surviving spouse." Ferguson, 163 So.3d at 343 (emphasis added). However, as will be shown, there is no conflict between today's decision and our statement in Ferguson regarding the legislature's intent in enacting § 43-8-90.

The facts of this case present us with a question not at issue in Ferguson: In an omitted-spouse case, where there is no evidence indicating that either exception in § 43-8-90 applies, but there is nevertheless evidence indicating that the testator intentionally disinherited the omitted spouse, does § 43-8-90 operate to preclude the omitted-spouse claim? The plain and unambiguous language of § 43-8-90 requires us to answer that question in the negative. See Ex parte Ankrom, 152 So.3d 397, 409-10 (Ala. 2013) (noting that " ' "[w]hen the language of a statute is plain and unambiguous, ... courts must enforce the statute as written" ' " (quoting Ex parte Pfizer, Inc., 746 So.2d 960, 964 (Ala. 1999), quoting in turn Ex parte T.B., 698 So.2d 127, 130 (Ala. 1997) )).

Section 43-8-90 plainly provides that if a testator's will does not provide for the testator's surviving spouse who married the testator after the execution of the will, the omitted spouse "shall receive the same share of the estate he would have received if the decedent left no will," i.e., an intestate share, unless the party opposing the omitted-spouse claim proves, in one of two specific ways enumerated in § 43-8-90, that the testator intentionally disinherited the omitted spouse. See Hellums, supra (regarding the burden of proof). By fashioning § 43-8-90 to provide that the party opposing an omitted-spouse claim must prove that the testator intentionally disinherited the omitted spouse and that it can do so only by proving that one of the two enumerated exceptions applies, the legislature essentially created a presumption that the testator unintentionally disinherited the omitted spouse if neither exception applies.

Had it so desired, the legislature could have drafted § 43-8-90 to provide that the party opposing an omitted-spouse claim can carry its burden of proving that the testator intentionally disinherited the omitted spouse with any evidence that tends to reflect that intent, but it did not. Rather, the legislature chose to provide two, and only two, specific types of evidence upon which the party opposing an omitted-spouse claim can rely to carry its burden. In doing so, the legislature prescribed the character of evidence sufficient to prove that the testator intentionally disinherited the omitted spouse and concomitantly rejected the reliability of other evidence the opposing party might offer to prove that the disinheritance was intentional. See Sustainable Forests, LLC v. Alabama Dep't of Revenue, 80 So.3d 270, 273 (Ala. Civ. App. 2011) ("Under the principle expressio unius est exclusio alterius, the express inclusion of one exception implies the exclusion of others."). Thus, the plain language of § 43-8-90 cannot support the conclusion that any evidence indicating that a testator intended to disinherit his or her surviving spouse is sufficient to avoid the application of § 43-8-90.

In this case, even though Sharyl offered evidence indicating that R.E. and Edwyna had agreed that "what was hers would stay hers and what was his would stay his" in an attempt to prove that R.E. intentionally omitted Edwyna from his will, she failed to offer evidence proving either that R.E.'s will indicates that Edwyna's omission was intentional or that R.E. intentionally disinherited Edwyna because he had made nontestamentary transfers to her intended to be in lieu of a testamentary provision-the only exceptions enumerated in § 43-8-90. By failing to prove that either exception in § 43-8-90 applied, Sharyl failed to prove that the omission of Edwyna from R.E.'s will was intentional, despite what other evidence might have indicated, and our reversal of the denial of Edwyna's omitted-spouse claim is therefore in accord with the legislature's intent in enacting § 43-8-90 -to avoid the unintentional disinheritance of a spouse who marries a testator after the execution of the testator's will. To hold otherwise would be to fail to give effect to § 43-8-90 as it is unambiguously written. Ankrom, supra.

Conclusion

Because Sharyl failed to carry her burden of proving that either exception enumerated in § 43-8-90 applied, the trial court erred in denying Edwyna's omitted-spouse claim. Accordingly, the judgment is reversed and the case remanded for the trial court to enter a judgment awarding Edwyna an intestate share of R.E.'s estate pursuant to § 43-8-41, Ala. Code 1975. On remand, the trial court may conduct any proceedings necessary to determine Edwyna's share of R.E.'s estate.

REVERSED AND REMANDED WITH INSTRUCTIONS.

Stuart, C.J., and Bolin and Main, JJ., concur.

Murdock, J., concurs in the result.

      Edwyna's petition also sought homestead, exempt-property, and family allowances. See §§ 43-8-110 through -112, Ala. Code 1975.

      Excerpts from the Reader's Digest were admitted into evidence. One of those excerpts states, in part: "[I]f there is no premarital agreement a spouse cannot be disinherited and can make a claim of one-third to one-half of an estate." Another states, in part: "All states ... prohibit you from disinheriting a spouse, although some may allow you to reestablish such an arrangement with a legal document such as a valid prenuptial agreement."

      Sharyl also testified that Edwyna and Dell were joint tenants with R.E. on an account the parties identified as "the farm account," which contained approximately $15,000 at the time of R.E.'s death. However, it was undisputed that Dell withdrew those funds shortly after R.E.'s death and deposited them into an account to which Edwyna had no access.

      Moreover, although not dispositive of this issue, it is worth noting that Sharyl's testimony indicated that, at most, R.E. intended for the funds in only one of the three money-market accounts to belong to Edwyna after his death.

      Because we hold that Edwyna is entitled to an omitted-spouse share of R.E.'s estate, we pretermit discussion of the other issues she raises on appeal.


source: Caselaw Access Project

author: SELLERS, Justice. MURDOCK, Justice (dissenting).

license: Public Domain

text:
    Joseph L. MCNAMARA, Jr. v. BENCHMARK INSURANCE COMPANY
    1151314
    Supreme Court of Alabama.
    September 8, 2017 Rehearing Denied November 17, 2017
    John C.S. Pierce of Sirote & Permutt, P.C., Mobile; and Kristen S. Cross of Sirote & Permutt, P.C., Birmingham, for appellant.
    James A. Kee, Jr., and Lucy W. Jordan of Kee Law Firm, LLC, Birmingham, for appellee.
   SELLERS, Justice.

Joseph L. McNamara, Jr., a pharmacist, appeals from a summary judgment entered by the Shelby Circuit Court in favor of Benchmark Insurance Company ("Benchmark") in Benchmark's indemnity action against McNamara. Benchmark commenced the indemnity action in an effort to recover funds expended to settle a medical-malpractice action brought against Southern Medical, Inc. ("Southern Medical"), Benchmark's insured and McNamara's employer. The medical-malpractice action was brought against Southern Medical by Ricky Avant and Kim Avant and was based, at least in part, on the alleged tortious acts and omissions of McNamara.

Introduction

In October 2011, the Avants commenced their medical-malpractice action against Southern Medical, a compounding pharmacy. In their complaint, the Avants alleged that, in December 2009, Mr. Avant's doctor, Dr. Raul Magadia, "issued a physician order for Mr. Avant to receive ... [the antibiotic] Tobramycin 5mg/kg intravenously every 24 hours for two weeks."

The Avants also asserted that Southern Medical, when processing Mr. Avant's prescription, discovered that Medicare would not pay for tobramycin. Thus, the Avants claimed, Southern Medical sought to have the prescription for tobramycin replaced by a prescription for gentamicin, a different antibiotic that was covered by Medicare. According to the Avants' complaint, "Dr. Magadia issued a verbal physician order," which called for the administration of gentamicin instead of tobramycin. Mr. Avant, however, was to receive gentamicin for only one week, as opposed to the two weeks' dosage of tobramycin previously prescribed. The Avants alleged that Dawn Hobbs, a registered nurse, relayed Dr. Magadia's new order to McNamara.

The Avants further alleged that McNamara breached the applicable standard of care by "incorrectly recording and/or filling the gentamicin order," which resulted in Mr. Avant receiving gentamicin for two weeks instead of one week. The administration of two weeks' of gentamicin allegedly resulted in Mr. Avant suffering permanent injuries. According to the Avants' complaint in their action against Southern Medical, the last dose of gentamicin was administered to Mr. Avant on or about January 4, 2010, and, on January 10, 2010, he presented to a hospital emergency room, complaining of weakness, difficulty walking, and tinnitus. The Avants alleged that, on January 14, 2010, Mr. Avant was diagnosed with "severe Gentamicin toxicity, ototoxicity, bilateral vestibulopathy, and acute renal failure." The Avants also asserted that Mr. Avant's condition caused him to suffer multiple falls, permanent hearing loss, loss of mobility, and other problems.

In addition to Southern Medical, the Avants also sued AlaCare Home Health Services, Inc., which employed the medical-care providers who intravenously administered the gentamicin to Mr. Avant in his home. The Avants did not sue McNamara.

The Avants asserted that Southern Medical was liable for the acts and omissions of its employees and agents based on the doctrine of respondeat superior. In addition, the Avants alleged that Southern Medical was directly liable for failing to hire competent pharmacists, failing to properly train its staff, failing to properly supervise its staff, and failing to implement policies and procedures aimed at preventing errors in dispensing medication.

Mrs. Avant stated a claim alleging loss of consortium.

Benchmark provided Southern Medical with a defense to the Avants' claims. Eventually, the Avants and Southern Medical settled their dispute, and Benchmark paid the settlement amount. In February 2014, Benchmark, as Southern Medical's subrogee, sued McNamara, seeking to recover the funds it had paid the Avants as settlement of their claims against Southern Medical. Benchmark's complaint alleged that "Benchmark, pursuant to its policy of insurance issued to Southern Medical, is contractually and equitably subrogated to Southern Medical's rights and privileges." Benchmark also alleged that the Avants' claims against Southern Medical were "predicated upon the alleged malfeasance, actions and/or omissions and active negligence of Southern Medical employee ... McNamara" and that "[a]ny and all monies paid for [the] settlement were expressly for any and all allegations of liability arising out of vicarious liability and/or respondeat superior." Benchmark asserted various claims against McNamara based on the theory of indemnity. Benchmark also sought a judgment declaring that McNamara was "legally responsible for any and all damages incurred by Benchmark for his malpractice and for damages awarded and/or settlements paid [to the Avants]."

Benchmark and McNamara filed cross-motions for a summary judgment. The trial court denied McNamara's motion and granted Benchmark's, awarding it $465,000 in damages. McNamara filed a postjudgment motion to alter, amend, or vacate the summary judgment. Subsequently, he filed a motion to "supplement the record" or, alternatively, for relief from the summary judgment. McNamara's postjudgment motions were denied by operation of law, pursuant to Rule 59.1, Ala. R. Civ. P., and McNamara appealed.

Discussion

McNamara argues that Benchmark's indemnity action is time-barred under § 6-5-482, Ala. Code 1975, which is part of the Alabama Medical Liability Act, § 6-5-480 et seq. and § 6-5-540 et seq., Ala. Code 1975 ("the AMLA"). Generally speaking, that Code section requires actions against health-care providers to be commenced within two years after the act, omission, or failure complained of. Although that deadline is subject to a discovery rule and to statutory provisions relating to the computation of limitations periods, § 6-5-482 provides further that "in no event may the action be commenced more than four years after such act" and that, "notwithstanding any provisions of such sections [relating to the computation of limitations periods], no action shall be commenced more than four years after the act, omission, or failure complained of." McNamara points out that the acts, omissions, or failures forming the basis of the Avants' medical-malpractice action against Southern Medical occurred in December 2009, that Mr. Avant first suffered injury in January 2010 or earlier, and that Benchmark did not commence the indemnity action against McNamara until February 2014, more than four years later.

For its part, Benchmark argues that the AMLA does not apply to all actions against health-care providers. For example, in Thomasson v. Diethelm, 457 So.2d 397 (Ala. 1984), a respiratory therapist alleged that two physicians working at the hospital where the therapist worked failed to warn her that a patient for whom she was providing care had hepatitis. This Court held that the therapist's claims were not governed by the AMLA, stating that "[w]hen the entire statute is considered, particularly the section defining 'medical liability,' it seems clear that the legislature was addressing liability of medical professionals in the context of patient-doctor and patient-hospital relationships." Id. at 399.

In George H. Lanier Memorial Hospital v. Andrews, 901 So.2d 714 (Ala. 2004), this Court held that the AMLA did not apply to claims against nurses who had harvested the corneas of a deceased child without the proper consent. The Court in Andrews noted that "the complained-of actions were not performed in the course of providing health-care services to a patient" and that "a health-care provider cannot inflict a 'medical injury' upon a person who is already deceased." 901 So.2d at 721.

In Taylor v. Smith, 892 So.2d 887 (Ala. 2004), the Court considered a plaintiff's action against a physician after the plaintiff had been injured in a car accident involving one of the physician's patients. At the time of the accident, the patient was under the influence of methadone that had been provided by the physician. In considering whether the AMLA applied, this Court stated:

"[T]he [AMLA] applies 'only to medical-malpractice actions,' Mock v. Allen, 783 So.2d 828, 832 (Ala. 2000), 'in the context of patient-doctor and patient-hospital relationships.' Thomasson [v. Diethelm], 457 So.2d [397] at 399 [ (Ala. 1984) ]. By definition, a 'medical-malpractice action' is one for redress of a 'medical injury.' See § 6-5-540 (purpose of the Act is to regulate actions for 'alleged medical injury') (emphasis added); see also Ala. Code 1975, § 6-5-549.1 (same). Because the [plaintiff was] seeking recovery for damages and injuries arising out of an automobile accident, not 'medical injuries,' this is not a medical-malpractice action. Consequently, it is neither subject to-nor barred by-the Act."

892 So.2d at 892-93.

In Ex parte Addiction & Mental Health Services, Inc., 948 So.2d 533 (Ala. 2006), the plaintiff, a patient at a residential treatment center, sued the treatment center after it allegedly disclosed the patient's confidential information to third parties. This Court rejected the treatment center's argument that the venue provisions of the AMLA applied to the patient's action, holding that his claims were not subject to the AMLA because he was not seeking redress for a "medical injury":

"[I]n the instant case, the AMLA applies only if [the plaintiff's] claim seeks redress for a 'medical injury.' Yet [the plaintiff] does not claim to have suffered a 'medical injury'; rather, he argues that he 'suffered economic damages, damage to his reputation, employment related injuries, and other injuries primarily economic in nature.' Furthermore, the only medically related injury he asserts he suffered is alleged to be the result of the claimed invasion of privacy, breach of contract, and breach of a fiduciary duty:
" 'As a direct and proximate result of [the defendant's] actions, [the plaintiff] sustained physical, mental and emotional anguish and distress, all to his general damage. As a direct and proximate result of [the defendant's] actions, [the plaintiff] was caused to incur medical expenses for psychiatric treatment and will continue to incur said expenses in the future.'
"Therefore, although [the plaintiff's] claims allege a breach of a duty that is derived from, and dependent upon, the health-care provider/patient relationship, they do not involve medical malpractice or medical injury per se. Thus the injuries [the plaintiff] suffered cannot properly be classified as 'medical injuries' under the AMLA, and the venue provision of the AMLA does not apply."

948 So.2d at 536.

Benchmark argues that its action against McNamara is based on a right to indemnity stemming from the principal/agent relationship between Southern Medical and McNamara and that the action is not a medical-malpractice case in which a patient seeks redress for a medical injury. Specifically, Benchmark asserts that "[t]his case does not fall within the AMLA because it is an action in which an employer seeks indemnification from an employee." Thus, Benchmark asserts, the action is not governed by the deadlines set out in § 6-5-482.

McNamara points out that, although Benchmark's indemnity action is technically not one in which a patient-plaintiff seeks to recover for a medical injury, it is undisputed that the indemnity action is predicated upon a patient's efforts at recovering for such a medical injury. Moreover, McNamara points out that subsection (b) of § 6-5-482 specifically references § 6-2-6, Ala. Code 1975, which is a statutory provision governing the computation of the limitations period typically applicable to principal/agent indemnity actions. Section 6-5-482 provides in full:

"(a) All actions against physicians, surgeons, dentists, medical institutions, or other health care providers for liability, error, mistake, or failure to cure, whether based on contract or tort, must be commenced within two years next after the act, or omission, or failure giving rise to the claim, and not afterwards; provided, that if the cause of action is not discovered and could not reasonably have been discovered within such period, then the action may be commenced within six months from the date of such discovery or the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier; provided further, that in no event may the action be commenced more than four years after such act; except, that an error, mistake, act, omission, or failure to cure giving rise to a claim which occurred before September 23, 1975, shall not in any event be barred until the expiration of one year from such date.
"(b) Subsection (a) of this section shall be subject to all existing provisions of law relating to the computation of statutory periods of limitation for the commencement of actions, namely, Sections 6-2-1, 6-2-2, 6-2-3, 6-2-5, 6-2-6, 6-2-8, 6-2-9, 6-2-10, 6-2-13, 6-2-15, 6-2-16, 6-2-17, 6-2-30, and 6-2-39 ; provided, that notwithstanding any provisions of such sections, no action shall be commenced more than four years after the act, omission, or failure complained of; except, that in the case of a minor under four years of age, such minor shall have until his eighth birthday to commence such action."

(Emphasis added.) Thus, one of the "provisions of law relating to the computation of statutory periods of limitation," to which subsection (a) of § 6-5-482 is subject, is § 6-2-6, which provides:

"When an injury arises from the act or omission of a deputy or agent, the time for the limitation of an action by the principal against such deputy or agent does not commence to run until the liability of the principal for the act or omission of such deputy or agent is ascertained by an action of the party aggrieved against the principal."

McNamara asserts that, in referencing § 6-2-6, the legislature made clear its intent that actions in which a principal seeks indemnification for liability arising from the medical malpractice of its agent are subject to the time-bar provisions of § 6-5-482. Otherwise, he asserts, the legislature's reference to § 6-2-6 in § 6-5-482 would be "superfluous." See generally Ex parte Welch, 519 So.2d 517, 519 (Ala. 1987) (" 'A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant, and so that one section will not destroy another unless the provision is the result of obvious mistake or error.' " (quoting 2A Norman J. Singer, Sutherland Statutes and Statutory Construction § 46.06 (4th ed. 1984))). McNamara also argues that, because the "act, omission, or failure complained of" occurred more than four years before Benchmark commenced its indemnity action, that action is time-barred.

In Horn v. Citizens Hospital, 425 So.2d 1065 (Ala. 1982), this Court stated:

"The legislature first enacted a medical malpractice statute of limitations in 1953. Act of Sept. 17, 1953, No. 766, 1953 Ala. Acts 1027 (codified at Ala. Code Tit. 7 § 25(1) (1940)). Act No. 766 provided:
" 'Section 1. All actions against physicians and surgeons, and dentists for malpractice, error, mistake, or failure to cure, whether based on contract or tort, must be commenced within two years next after the act or omission or failure giving rise to the cause of action, and not afterwards. Provided that if the cause of action is not discovered and could not reasonably have been discovered within such period, then the action may be commenced within six months from the date of such discovery or the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier, provided further that in no event may the action be commenced more than six years after such act.
" 'Section 2. Section 1 of this act shall be subject to all existing provisions of law relating to the computation of statutory periods of limitation for the commencement of actions; namely, Title 7, Sections 18, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 40, 42, 43, 44, 47, 48 of the Code of 1940.'
"This act was the precursor to the statute of limitations provision enacted in the Medical Liability Act by the legislature in 1975. Act of Sept. 23, 1975, No. 513, § 4, 1975 Ala. Acts 1149, 1150 (codified at Ala. Code § 6-5-482 (1975))."

425 So.2d at 1068-69 (emphasis added). As the above-emphasized language shows, Title 7, Section 44, of the Code of 1940 was referenced in the original version of what eventually became § 6-5-482. Section 44 was later recodified at § 6-2-6, Ala. Code 1975. Thus, when the original version of what is now § 6-5-482 was enacted, it was, without additional proviso, subject to the proposition that the limitations period applicable to a cause of action by a principal against its agent "does not commence to run until the liability of the principal for the act or omission of such deputy or agent is ascertained by an action of the party aggrieved against the principal." In 1975 when it adopted the AMLA, the legislature added the additional language stating that, "notwithstanding any provisions of [the listed Code sections, including what is now § 6-2-6 ], no action shall be commenced more than four years after the act, omission, or failure complained of."

In its appellee's brief, Benchmark does not specifically discuss § 6-5-482(b) or its reference to § 6-2-6. Accordingly, Benchmark has provided no alternative explanation as to why the legislature would include in § 6-5-482 a reference to that Code provision, other than in anticipation of indemnity actions like the one involved in the present case. Based on the history and language of the relevant statutes, this Court concludes that § 6-5-482 is applicable to Benchmark's indemnity claim against McNamara. Although precedent from other jurisdictions is not entirely consistent, courts have applied medical-malpractice statutes of limitations or repose to indemnity actions brought against medical providers responsible for medical injuries. See, e.g., Uldrych v. VHS of Illinois, Inc., 239 Ill.2d 532, 347 Ill.Dec. 694, 942 N.E.2d 1274 (2001) (holding that a hospital's indemnity claim against two doctors, which was predicated on a medical-malpractice claim against the hospital based on vicarious liability for the doctors' negligence, was subject to a statute of repose applicable to medical-malpractice claims); Columbia/CSA-HS Greater Columbia Healthcare Sys. v. South Carolina Med. Malpractice Liab. Joint Underwriting Ass'n, 394 S.C. 68, 713 S.E.2d 639 (Ct. App. 2011) (same); Christus St. Vincent Reg'l Med. Ctr. v. Duarte-Afara, 267 P.3d 70 (N.M. Ct. App. 2011) (same). But see Avera St. Luke's Hosp. v. Karamali, 848 F.Supp.2d 1017 (D. S.D. 2012) (holding that a statute of limitations applicable to medical-malpractice actions did not apply to a hospital's indemnity claim against a physician).

Section 6-5-482(b), by referencing § 6-2-6, indicates that the applicable limitations period is subject to the proposition that the deadline by which a principal must commence an indemnity action for its agent's action begins to run when the principal's liability "is ascertained by an action of the party aggrieved." The statute further provides, however, that "no action shall be commenced more than four years after the act, omission, or failure complained of." It is clear to this Court that the phrase "act, omission, or failure complained of" refers to the act or omission of the health-care provider that resulted in a medical injury to the patient. In the present case, that act or omission occurred more than four years before Benchmark commenced its action against McNamara.

In an argument that appears to be based partly on policy considerations, Benchmark asserts that its indemnity action against McNamara did not accrue until "Benchmark paid the settlement to the Avants on behalf of Southern Medical in February 2014" and that the "trial court correctly rejected McNamara's request to implement a statute of limitations that would have expired before Benchmark paid any claims." As Benchmark points out, there is precedent construing the periods of § 6-5-482(a) as beginning to run when a medical-malpractice claim "accrues." See generally Crosslin v. Health Care Auth. of Huntsville, 5 So.3d 1193, 1196 (Ala. 2008). Although Benchmark provides citations to precedent discussing the accrual of third-party indemnity claims, it does not discuss any authority dealing with the accrual of an indemnity claim by a principal against its agent. The Court does note, however, that, in Alabama Kraft Co. v. Southeast Alabama Gas District, 569 So.2d 697, 700 (Ala. 1990), in discussing indemnity between a principal and an agent, the Court stated that "a right to indemnity does not arise ... until a master or principal pays damages arising from his servant's or agent's negligent or fraudulent acts." Consistent with the proposition that a principal's indemnity action does not necessarily accrue at the time of the act or omission of the agent, § 6-2-6, Ala. Code 1975, provides that the statute of limitations applicable to a principal/agent indemnity claim "does not commence to run until the liability of the principal for the act or omission of ... [the] agent is ascertained by an action of the party aggrieved against the principal." That section, however, is one of the provisions § 6-5-482(b) specifically incorporates, but subjects to the further proviso that "no action shall be commenced more than four years after the act, omission, or failure complained of." Because the act complained of occurred in January 2010 and Benchmark sued McNamara in February 2014, we must conclude that Benchmark's indemnity action is time-barred under § 6-5-482. Thus, the trial court erred in entering a summary judgment in favor of Benchmark and in denying McNamara's motion for a summary judgment.

REVERSED AND REMANDED.

Stuart, C.J., and Main and Wise, JJ., concur.

Bolin, Parker, Shaw, and Bryan, JJ., concur in the result.

Murdock, J., dissents.

SHAW, Justice (concurring in the result).

I concur in the result.

The dispositive issue in this case is whether the statute of limitations for an action under the Alabama Medical Liability Act ("the AMLA"), specifically, Ala. Code 1975, § 6-5-482, applies in this case and thus bars an indemnity action by Benchmark Insurance Company ("Benchmark"), the subrogee of Southern Medical, Inc. ("Southern Medical"), against Joseph L. McNamara, Jr., Southern Medical's employee. Specifically, McNamara, a pharmacist, allegedly improperly filled a prescription that harmed a patient, Ricky Avant. That resulted in a lawsuit by Avant and his wife against Southern Medical on the theory of, among other things, respondeat superior based McNamara's alleged malpractice in filling the prescription.

After purportedly giving McNamara notice of its participation in mediation, Southern Medical settled the suit by the Avants; Benchmark, Southern Medical's insurer and subrogee, then filed an indemnity action against McNamara, seeking damages for, among other things, the amount of the settlement. The indemnity action was commenced more than four years after McNamara allegedly improperly filled the prescription and Avant was injured. The trial court entered a summary judgment against McNamara, and he appeals, arguing, among other things, that Benchmark's indemnity action, because it was commenced more than four years after the alleged malpractice, was barred by the four-year limitations period of Ala. Code 1975, § 6-5-482(b).

Benchmark maintains that the AMLA, and its statute of limitations, does not apply to its indemnity action in this case. As noted in the main opinion, the AMLA has been considered to apply in "medical-malpractice" actions that seek the redress of a "medical injury." Benchmark argues, however, that it is seeking only indemnification and that "any argument [by McNamara] contesting liability in the underlying action is improper and cannot be considered." Benchmark's brief, at 21. If this is true, and there is truly no material issue as to whether liability for medical malpractice exists or whether McNamara is liable for indemnification, then I would tend to agree. However, it appears that the issue whether McNamara committed malpractice is material and unresolved and, thus, that the AMLA applies to this determination.

Stated generally, when a principal is liable for damages caused by its agent's tortious conduct, the principal may seek indemnification from the agent. Line v. Ventura, 38 So.3d 1, 13 (Ala. 2009) ("[A] principal is entitled to indemnification from its agent for damages caused by the agent's tortious conduct."). The elements of a common-law indemnification claim are as follows: "(1) the party seeking indemnity must be liable to a third party; (2) the prospective indemnitor must also be liable to the third party; and (3) as between the prospective indemnitee and indemnitor, the obligation ought to be discharged by the indemnitor." 41 Am. Jur. 2d Indemnity § 20 at 408 (2015). See also Allstate Ins. Co. v. Amerisure Ins. Cos., 603 So.2d 961, 963 (Ala. 1992).

This burden is altered depending on whether the alleged indemnitor had notice of and the ability to participate in the underlying action and its settlement. When an indemnitor has no notice of either the original suit or of the settlement by the indemnitee, the general rule is that the indemnitee, as part of its indemnity action, has the burden of establishing that the indemnitee was actually liable to the original plaintiff and that the settlement of its liability was reasonable. Watts v. Talladega Fed. Sav. & Loan Ass'n, 445 So.2d 316, 320 (Ala. Civ. App. 1984). "However, if the indemnitor is notified of the action against the indemnitee, particularly if a party therein, and can exercise his right to present [the] indemnitee's defenses under Rule 14, [Ala. R. Civ. P., then] he is precluded from contesting the indemnitee's liability in a subsequent indemnity or third-party action." Id.

When the indemnitor has the requisite notice and an opportunity to participate in the underlying action, the indemnitee, in its indemnity action, does not have to show its actual liability to the original plaintiff, i.e., that its agent was responsible and that, as the principal, it was in turn liable to the original plaintiff. Instead, " 'when the indemnitor has notice of the claim and refuses to defend, the indemnitor is bound by any good faith reasonable settlement, and the indemnitee need only show potential liability.' " Stone Bldg. Co. v. Star Elec. Contractors, Inc., 796 So.2d 1076, 1090 (Ala. 2000) (quoting 41 Am. Jur. 2d Indemnity § 46 at 382-83 (1995) (footnotes omitted in Stone; emphasis omitted)). See also Star Elec. Contractors, Inc. v. Stone Bldg. Co., 863 So.2d 1071, 1077 n.3 (Ala. 2003) (holding that, although an indemnitee was not required to prove its actual liability to the original plaintiff as part of its burden of proof in its indemnification case and the indemnitor was precluded from contesting the indemnitee's liability to the original plaintiff in a settlement for which the indemnitor had notice, the indemnitee was still required to meet its "burden of proof" as to its "potential liability" to the original plaintiff). This requirement to show "potential liability" exists to prevent the indemnitee from becoming a "volunteer" and settling a claim without risk of exposure to liability:

"A party seeking indemnification must establish that the settlement of a claim against the indemnitee was made based on a potential liability to the plaintiff, and a showing of potential liability is required because the indemnitee must not be a mere volunteer who has settled the underlying claim when there was no exposure to legal liability that obligated him or her to do so."

41 Am. Jur. 2d Indemnity § 27 at 417 (2015).

In the instant case, Benchmark, as the indemnitee (as Southern Medical's subrogee), has the burden of establishing its "potential liability" to Avant; in other words, it must establish its "potential liability" for McNamara's alleged malpractice. Whether McNamara committed malpractice is still at issue; therefore, I see no reason why the AMLA's statute of limitations would not apply. Alabama Code 1975, § 6-5-482(a), provides that an AMLA action against certain health-care providers must be commenced within two years, provides a discovery rule allowing the action to be commenced within six months of discovery of "the act, or omission, or failure giving rise to the claim," but then limits the commencement of the action to no more than four years after the occurrence of those acts, omissions, or failures. Section 6-5-482(b) then incorporates certain other Code sections "relating to the computation of statutory periods of limitation for the commencement of actions," but nevertheless maintains the four-year limitation: "[N]otwithstanding any provisions of such sections, no action shall be commenced more than four years after the act, omission, or failure complained of ...." The statute of limitations for indemnification actions, Ala. Code 1975, § 6-2-6, is one of the Code sections "relating to the computation of statutory periods of limitation for the commencement of actions" incorporated by 6-5-482(b).

Section 6-5-482(b) has been described as incorporating "tolling" provisions-Code sections that interrupt the running of a statute of limitations -but nevertheless limiting the application of such provisions to no more than four years from the act, omission, or failure of the medical provider. Jones v. McDonald, 631 So.2d 869, 871 (Ala. 1993). In fact, in Jones, § 6-2-6 was specifically mentioned as an example of a Code section that, in the context of § 6-5-482(b), "tolls the running of the limitations period for an action by a principal against an agent until the principal's liability is ascertained in an action by the aggrieved party." See also Ex parte Sonnier, 707 So.2d 635, 642 (Ala. 1997) (See, J., concurring in part and dissenting in part) ("[ Section] 6-5-482(b) limits the scope of operation of the various tolling provisions by stating that 'notwithstanding any provisions of such sections, no action shall be commenced more than four years after the act, omission, or failure complained of.' ") (quoting § 6-5-482(b) ). Thus, § 6-5-482(b) has generally been described as barring recovery in any AMLA action commenced more than four years after the provider's act, omission, or failure occurred, despite these tolling provisions: "[W]e construe § 6-5-482(b) and the proviso therein as barring recovery for all medical malpractice actions commenced more than four years after the wrongful act or omission producing the injury." Bowlin Horn v. Citizens Hosp., 425 So.2d 1065, 1070 (Ala. 1982) ; see also Ex parte Sonnier, 707 So.2d at 637 ("This Court has held that the four-year period of repose in the AMLA is an 'absolute bar to all medical malpractice claims which are brought more than four years after the cause of action accrues.' ") (quoting Bowlin Horn, 425 So.2d at 1070 ).

The application of § 6-5-482(b) has the curious effect of possibly barring as untimely an indemnity action before the statute of limitations under § 6-2-6 actually starts running. Section 6-2-6 provides:

"When an injury arises from the act or omission of a deputy or agent, the time for the limitation of an action by the principal against such deputy or agent does not commence to run until the liability of the principal for the act or omission of such deputy or agent is ascertained by an action of the party aggrieved against the principal."

In my view § 6-2-6 is not a tolling provision in the sense that it interrupts or tolls the running of an otherwise applicable statute of limitations; rather, it simply sets a two-year statute of limitations to begin to run at the time the action accrues. See American Commercial Barge Line Co. v. Roush, 793 So.2d 726, 729 (Ala. 2000) ("[I]n an action seeking indemnification the limitations period does not begin to run until liability has become fixed. The date the cause of action accrued, then, depends on when the liability became fixed."), and Alabama Kraft Co. v. Southeast Alabama Gas Dist., 569 So.2d 697, 700 (Ala. 1990) ("[A] right to indemnity does not arise, however, until one acting as surety satisfies his principal's obligation, or until a master or principal pays damages arising from his servant's or agent's negligent or fraudulent acts."). An indemnity action is unique in that it often springs into being at the conclusion of a separate action but is based on the same act or omission at issue in that prior action; although it stems from the same wrongdoing, the statute of limitations under § 6-2-6 does not begin to run until a later time.

Section 6-5-482(b) clearly modifies the statute of limitations in indemnity actions involving AMLA claims. When applying a statute,

" ' "[w]ords used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect." ' "

DeKalb Cty. LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270, 275 (Ala. 1998) (quoting Blue Cross & Blue Shield v. Nielsen, 714 So.2d 293, 296 (Ala. 1998), quoting in turn IMED Corp. v. Systems Eng'g Assocs. Corp., 602 So.2d 344, 346 (Ala. 1992) ).

Section 6-5-482(b) states that "notwithstanding" any provision of § "6-2-6," "no action shall be commenced more than four years after the act, omission, or failure complained of." The main opinion states: "It is clear to this Court that the phrase 'act, omission, or failure complained of' refers to the act or omission of the health-care provider that resulted in a medical injury to the patient." 261 So.3d at 219. I agree. The phrase "act, omission, or failure complained of" is virtually the same language used in § 6-5-482(a) specifying when the statute of limitations for an AMLA action begins to run. Section 6-2-6 states that its limitations period begins to run when the liability of the principal "for the act or omission" of its agent is ascertained by an action. Both refer to the same act or omission, but each sets a different triggering date for when the limitations period begins to run. The limitations period for an indemnity action under 6-2-6 does not begin to run at the time of the act or omission of the indemnitor; instead, it begins to run when the liability of the indemnitee is ascertained. In contrast, the four-year limitations period in § 6-5-482(b) cannot be said to start the moment that liability is ascertained-that is a different point than the point identified by the language of § 6-5-482(b), and that Code section trumps § 6-2-6. Therefore, "the act, omission, or failure complained of" in § 6-5-482(b) that starts the four-year limitations period must refer to the medical provider's acts, omissions, or failures, despite anything in § 6-2-6.

In the instant case, the plain language of § 6-5-482(b) means that the statute of limitations for Benchmark's indemnity action began when McNamara allegedly committed malpractice and not, as would normally be the case under § 6-2-6 outside the context of an AMLA action, when Southern Medical's (and thus Benchmark's) liability was fixed. Under the facts of this case, the statute of limitations expired under § 6-5-482(b) before the limitations period under § 6-2-6 began to run. This is odd, but we have stated:

"It is true that when looking at a statute we might sometimes think that the ramifications of the words are inefficient or unusual. However, it is our job to say what the law is, not to say what it should be."

DeKalb Cty. LP Gas Co., 729 So.2d at 276. The result of the plain language is unusual under the specific facts of this case, but it is not an "absurd and unjust result that is clearly inconsistent with the purpose and policy of the statute." City of Bessemer v. McClain, 957 So.2d 1061, 1075 (Ala. 2006). Before the 1975 amendment to what became § 6-5-482(b), discussed in the main opinion, the precursor statute to § 6-2-6 would have allowed an indemnitee to commence an action against an indemnitor within two years after the indemnitee's liability had been established. As the instant case demonstrates, this could be well after the indemnitor's malpractice had occurred. The 1975 amendment and its proviso, however, provided a cut-off point for filing an action under § 6-2-6 -no more than four years after the malpractice occurred. Bowlin Horn, 425 So.2d at 1070 ("[T]he proviso [of § 6-5-482(b) ] bar[s] recovery for all medical malpractice actions commenced more than four years after the wrongful act or omission producing the injury."). It is not clear whether the legislature anticipated, in setting the four-year maximum, that the statute of limitations for filing an indemnity action under the AMLA could end before the limitations period under § 6-2-6 started. However, that is the result of the language used. "[W]e cannot change those words to say what we believe the legislature actually intended to say. To do so would 'turn this Court into a legislative body, and doing that, of course, would be utterly inconsistent with the doctrine of separation of powers.' " Johnson Controls, Inc. v. Liberty Mut. Ins. Co., 160 So.3d 249, 271 (Ala. 2014) (Shaw, J., dissenting) (quoting DeKalb County, 729 So.2d at 276 ).

Nevertheless, I also note that caselaw suggests that an indemnitee may nevertheless file a third-party action and join an indemnity claim against its indemnitor in the course of the original action. In Ex parte Athens-Limestone Hospital, 858 So.2d 960 (Ala. 2003), the plaintiff, Wilson, sued a hospital, alleging that it was liable for the medical malpractice of its employee, Dr. Teng. The hospital filed a third-party complaint against Dr. Teng seeking indemnification. Among other things, Wilson argued that the "indemnity claim [was] not ripe and that there [was] no justiciable controversy." Ex parte Athens-Limestone, 858 So.2d at 965. This Court rejected that argument:

"The plain language of Rule 14 [, Ala. R. Civ. P.,] discounts Wilson's argument that the Hospital's indemnity claim [against Dr. Teng] is not ripe for consideration. Rule 14 was designed for third-party claims like the Hospital's, because it provides for impleader of 'a person not a party to the action who is or may be liable to the third-party plaintiff for all or part of the plaintiff's claim against the third-party plaintiff.' Rule 14, Ala. R. Civ. P. See also Committee Comments on 1973 Adoption to Rule 14 ('But where there is a substantive right over, Rule 14 does permit acceleration of liability by allowing the original defendant to implead a third-party claimed to be liable over to him, although there may be no liability to the original defendant unless and until the original defendant is held liable to the original plaintiff.') (emphasis added)."

858 So.2d at 965. See also generally Ex parte Stonebrook Dev., L.L.C., 854 So.2d 584, 590-91 (Ala. 2003) (stating that Rule 14 was " 'adopted to prevent third-party claims, which are contingent on the outcome of original actions against third-party plaintiffs, from being dismissed as premature when brought in the same proceeding as the original action' ") (quoting Matthews Bros. Constr. Co. v. Stonebrook Dev., L.L.C., 854 So.2d 573, 579 n.3 (Ala. Civ. App. 2001) ); Capital Assurance Co. v. Johnson, 578 So.2d 1263, 1264 (Ala. 1991) (wherein a defendant filed a cross-claim seeking indemnity against its codefendant/purported agent alleging that, if the defendant was found liable to the plaintiff, then that liability would be based solely on the codefendant's negligence); and FMR Corp. v. Howard, 227 So.3d 444, 451 (Ala. 2017) (Shaw, J., concurring specially) ("I note that, generally, an indemnification claim is ripe for consideration even if the indemnitee has not yet been held liable for a claim that the indemnitor might be required to pay.").

Bolin, J., concurs.

MURDOCK, Justice (dissenting).

I respectfully dissent. I cannot conclude that a corporate employer's claim for indemnity from its employee for financial losses suffered by the employer when it was held vicariously liable for its employee's breach of duty to a third party is itself an action under the Alabama Medical Liability Act, § 6-5-480 et seq. and § 6-5-540 et seq., Ala. Code 1975 ("the AMLA"). If it is not a claim under the AMLA, then the provisions of § 6-5-482, Ala. Code 1975, regarding the running of the statute of limitations are inapplicable.

An AMLA action, by definition, entails a claim by a patient against a medical provider for alleged lack of care in providing medical services to the patient, with a resulting "medical injury" to the patient. Here, Benchmark Insurance Company stands "in the shoes" of Joseph L. McNamara, Jr.'s employer, Southern Medical, Inc. ("SMI"), pursuant to its subrogation rights, to sue McNamara for losses suffered by SMI when SMI settled an action alleging that it was vicariously liable for McNamara's breach of his duty of care as a pharmacist to a patient. It sues McNamara, then, not in McNamara's capacity as the plaintiff's medical provider, but as the plaintiff's employee. SMI was not a patient of McNamara's; it is a corporation. It did not receive medical services from the medical provider it now sues, and it did not suffer a "medical injury." If Alabama recognizes the noncontractual cause of action for indemnity by an employer against its employee in this case, perhaps as a common-law claim of some sort (something that no party to this action challenges), it is not an AMLA claim.

I recognize that § 6-5-482 references § 6-2-6, Ala. Code 1975, which governs indemnity claims generally. But nowhere does § 6-5-482, much less § 6-2-6, say that a corporate employer has a claim under the AMLA for medical malpractice. Although § 6-2-6 is referenced, it is referenced as part of a long list of statutes in which the legislature appears to have gathered up all conceivably germane limitations-related provisions of Title 6, Chapter 2. Although a tenet of statutory construction is that we give each word or phrase in a statute meaning "if possible," we ask far too much of this brief reference in this circumstance. Our search for a field of operation for a reference such as this buried in a litany of what appears to be all the limitations provisions that could potentially be applicable to a medical-malpractice dispute, cannot justify the implicit conclusion reached today: that the legislature intended by this briefest of references to modify the fundamental nature of an AMLA action and create a new cause of action by which an employer qua employer-a corporation no less-can sue for medical malpractice when it has not suffered any medical injuries by a physician or other provider as a result of negligent provision of medical care to that employer. To me, to accept that such a reference does this represents a classic case of "the tail wagging the dog."

      It is undisputed in this case that pharmacists are health-care providers for purposes of the AMLA. See Cackowski v. Wal-Mart Stores, Inc., 767 So.2d 319, 325 (Ala. 2000).

      Apparently Section 2 of Act No. 766 was inadvertently omitted from the Code after it was enacted but was later added via a 1965 supplement to the Code.

      Mr. Avant's injury also occurred more than four years before Benchmark filed its action against McNamara.

      See Ala. Code 1975, § 6-5-480 et seq. and § 6-5-540 et seq.

      It appears undisputed that an action by the Avants against McNamara directly for allegedly improperly filling the prescription would be subject to the AMLA.

      See "tolling statutes," Black's Law Dictionary 1716 (10th ed. 2014).

      Entirely collateral to what I would consider to be the axiomatic premises stated above for this conclusion, I note the impracticalities-impossibilities, really-the contrary view creates. Foremost among them is the scenario in this very case, which Justice Shaw aptly describes as follows: "Under the facts of this case, the statute of limitations expired under § 6-5-482(b)[, Ala. Code 1975,] before the limitations period under § 6-2-6[, Ala. Code 1975,] began to run." 261 So.3d at 224 (Shaw, J., concurring in the result).

      See, e.g., Michael v. Beasley, 583 So.2d 245, 249 (Ala. 1991) ("The general rule of statutory construction is that effect should be given, if possible, to each word and each section of the statute being construed." (emphasis added)). But see Ex parte Employees' Ret. Sys. of Alabama, 644 So.2d 943 (Ala. 1994) (noting that, in applying the clear meaning of a statute, a court must look at the entire statutory scheme rather than at isolated phrases or clauses).