Alabama Home Builders Self Insurers Fund, Inc. v. Christy Tumlin, as the personal representative of the Estate of Timothy Michael Tumlin, and as the dependent spouse of Timothy Michael Tumlin, (Appeal from Jefferson Circuit Court: CV-22-902792).

Rel: September 20, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS
SPECIAL TERM, 2024
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Alabama Home Builders Self Insurers Fund, Inc.

v.

Christy Tumlin, as the personal representative of the Estate of
Timothy Michael Tumlin, deceased, and as the dependent
spouse of Timothy Michael Tumlin, deceased

Appeal from Jefferson Circuit Court
(CV-22-902792)

HANSON, Judge.

Timothy Tumlin ("Tumlin") died as a result of a work-related

accident on March 18, 2019. Tumlin's employer, L & C General

Contractors, Inc. ("L & C"), filed in the Jefferson Circuit Court ("the trial
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court") a declaratory-judgment action ("the workers' compensation

action") seeking a determination of the amount of benefits it was required

to pay Tumlin's spouse, Christy Reems Tumlin, under the Workers'

Compensation Act ("the Act"), § 25-5-1 et seq., Ala. Code 1975.

Ultimately, as a result of that action, L & C and Christy Tumlin entered

into a settlement agreement pursuant to which Christy Tumlin, "on

behalf of the deceased employee," received $65,000 in workers'

compensation death benefits. On December 14, 2020, the trial court

entered a judgment in the workers' compensation action that

incorporated the terms of that settlement agreement.

On December 10, 2020, Christy Tumlin, acting in her capacity as

the personal representative of Tumlin's estate ("the estate"), filed in the

trial court an action ("the wrongful-death action") against Clements Dean

Building Co., LLC ("Clements"), and Billy Franklin Enterprises, Inc.

("Franklin Enterprise"). In the wrongful-death action, which was

assigned case number CV-20-904141, the estate alleged claims of

wrongful death, negligence, and failure to provide a safe workplace. On

February 16, 2021, the Alabama Home Builders Self Insurance Fund,

Inc. ("the Fund"), acting as L & C's workers' compensation insurer filed

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a motion in the wrongful-death action alleging that it had a

reimbursement interest in that action and seeking permission to

intervene in the wrongful-death action. The Fund attached to its motion

to intervene a copy of a proposed complaint in intervention. On March 2,

2021, the trial court entered in the wrongful-death action an order

stating: "The motion to intervene filed by [the Fund] is hereby granted,

and, as such, the [Fund] may proceed to file and serve its 'complaint in

intervention.' " It is undisputed that the Fund did not thereafter file

and/or serve on the parties a complaint in intervention in the wrongful-

death action.

After the trial court had directed the parties to the wrongful-death

action to mediate their dispute, the estate and Clements and Franklin

Emterprises, the two defendants to the wrongful-death action, reached a

settlement agreement pursuant to which the two defendants agreed to

pay the estate the sum of $812,500. The estate and the two defendants

then filed a joint motion seeking the dismissal of the wrongful-death

action. On September 19, 2022, the trial court entered a judgment

dismissing the estate's wrongful-death action with prejudice.

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On September 20, 2022, the Fund filed a motion in the wrongful-

death action requesting that the trial court "reopen" that action; it also

moved to strike the joint stipulation of dismissal entered into by the

estate and the two defendants to the wrongful-death action. The Fund

argued that it had not agreed to the settlement agreement in the

wrongful-death action and that it was entitled to reimbursement, from

the settlement proceeds, of death-benefit amounts that it had paid under

the Act. On October 17, 2022, the trial court entered in the wrongful-

death action an order providing, in part:

"Earlier in this litigation, the [Fund] asked for, and was
granted, permission to intervene in the case. Pursuant to the
Court's Order permitting intervention, the [Fund] was to file
and serve its proposed complaint in intervention. That never
happened so, in this court's opinion, the [Fund] is not a party
here. However, later in the case, and before the court entered
its final judgment of dismissal, [the estate] purported to add
the [Fund] into the case as a defendant with a declaratory-
judgment complaint.[1] At the request of the [estate], the
declaratory-judgment complaint was later withdrawn,
without prejudice, and refiled as a new civil action. That civil
action is ongoing herein this court as case number CV-22-
902792.

"Wherefore, in light of all of the above, the [Fund's] request to
reopen this case and strike the other parties' joint stipulation
of dismissal is denied, but the dismissal of this case is changed

1That document is not included in the record on appeal.

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to be without prejudice in light of the ongoing and active
dispute between the [estate] and the [Fund]."

As the above-quoted order indicates, on September 16, 2022, the

estate filed in the trial court a complaint seeking a declaratory judgment

to the effect that any claim by the Fund for reimbursement from the

proceeds of the settlement reached in the wrongful-death action was

barred by the applicable statute of limitations or because of the Fund's

failure to prosecute its claim. That action was assigned trial-court case

number CV-22-902792 and is hereinafter referred to as "the declaratory-

judgment action." On October 24, 2022, the Fund filed a counterclaim in

the declaratory-judgment action in which it sought reimbursement from

the settlement proceeds of the wrongful-death action for compensation it

had paid under the Act as a result of Tumlin's death.

The estate and the Fund submitted to the trial court a number of

joint stipulations in the declaratory-judgment action, many of which are

already set forth herein. The parties also agreed that there were no

factual disputes between them and that the declaratory-judgment action

involved only a question of law, and each party filed a motion for a

summary judgment in the declaratory-judgment action.

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On November 17, 2023, the trial court entered in the declaratory-

judgment action a judgment in which it concluded, as the estate had

requested, that the Fund's claim for reimbursement from the settlement

proceeds was barred by the statue of limitations. In granting the estate's

motion for a summary judgment, 2 the trial court adopted the reasoning

set forth in a proposed judgment submitted by counsel for the estate:

"[T]he dispositive issue in this case[] is whether [the Fund]'s
… claim under Ala. Code [1975,] § 25-5-11(a) is barred by Ala.
Code [1975,] § 6-2-38(l) … which imposes a two-year statute
of limitations on actions 'for any injury to the person or
property of another not arising from contract and not
specifically enumerated …'

"The Alabama Supreme Court [sic] has held that 'claims
filed pursuant to § 25-5-11 are tort claims for damages.' H&H
Wood Co. v. Monticello Ins. Co., 688 So. 2d 38, 40 (Ala. [Civ.
App.] 199[5]). More specifically, the Alabama Supreme Court
[sic] has held that a subrogee can acquire no greater rights
than those held by the principal, Hardin v. Metlife Auto &
Home Ins. Co., 982 So. 2d 522, 525 (Ala. Ci[v]. App. 2007), and
therefore the statute of limitations for a subrogated insurers'
claim begins to run on the date of the accident giving rise to
the underlying claim of its insured. Hardin, 982 So. 2d at 527.
In this case, that date is March 18, 2019.

"Because [the Fund] did not bring its claim until October
of 2022, more than three-and-a-half years after the accident
giving rise to [the estate's] claim, this Court finds and declares
that [the Fund's] claim … under Ala. Code[ 1975,] § 25-5-11 is

2The Fund's summary-judgment motion was expressly denied by

the trial court.
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barred by the two-year statute of limitations under Ala. Code
[1975,] § 6-2-38(l)."

The Fund filed a timely notice of appeal from the November 17, 2023,

judgment. The appeal is before this court pursuant to Ala. Code 1975,

§ 12-2-7(6).

On appeal, the Fund argues that the trial court erred in

determining that its claim for reimbursement is time barred. The parties

agree that a workers' compensation insurance carrier, such as the Fund,

that acts on behalf of an employer to pay monetary benefits to survivors

of a deceased employee may seek reimbursement under Ala. Code 1975,

§ 25-5-11(a), which provides, in pertinent part:

"(a) If the injury or death for which compensation is
payable … was caused under circumstances also creating a
legal liability for damages on the part of any party other than
the employer, whether or not the party is subject to this
chapter, the employee, or his or her dependents in case of
death, may proceed against the employer to recover
compensation under this chapter or may agree with the
employer upon the compensation payable under this chapter,
and at the same time, may bring an action against the other
party to recover damages for the injury or death, and the
amount of the damages shall be ascertained and determined
without regard to this chapter. … If the injured employee, or
in case of death, his or her dependents, recovers damages
against the other party, the amount of the damages recovered
and collected shall be credited upon the liability of the
employer for compensation. If the damages recovered and
collected are in excess of the compensation payable under

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this chapter, there shall be no further liability on the
employer to pay compensation on account of the injury or
death. To the extent of the recovery of damages against the
other party, the employer shall be entitled to reimbursement
for the amount of compensation theretofore paid on account
of injury or death. If the employee who recovers damages is
receiving or entitled to receive compensation for permanent
total disability, then the employer shall be entitled to
reimbursement for the amount of compensation theretofore
paid, and the employer's obligation to pay further
compensation for permanent total disability shall be
suspended for the number of weeks which equals the quotient
of the total damage recovery, less the amount of any
reimbursement for compensation already paid, divided by the
amount of the weekly benefit for permanent total disability
which the employee was receiving or to which the employee
was entitled. For purposes of this amendatory act,[3] the
employer shall be entitled to subrogation for medical and
vocational benefits expended by the employer on behalf of the
employee; however, if a judgment in an action brought
pursuant to this section is uncollectible in part, the
employer's entitlement to subrogation for such medical and
vocational benefits shall be in proportion to the ratio the
amount of the judgment collected bears to the total amount
of the judgment."

(Emphasis added.)

Notably, the Fund's statutory right to reimbursement under § 25-

5-11(a) from the proceeds secured by the estate's wrongful-death action

3As the Code Commissioner's Notes to Ala. Code 1975, § 25-5-11,

indicate, the reference to "amendatory act" is to Act No. 92-537, 1992 Ala.
Acts, which effected numerous procedural and substantive changes to
Alabama's workers' compensation laws.
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against the third-party tortfeasors persists even in the absence of the

Fund's "participation" in that action; indeed, only in rare situations does

Alabama law envision that the employer or workers' compensation

carrier would have an independent right to commence and maintain such

an action on behalf of the dependents of a deceased employee. See Buco

Bldg. Constructors, Inc. v. Myrick, 863 So. 2d 1130, 1134 (Ala. Civ. App.

2003) (plurality opinion) (indicating that "the employer's subrogation

rights are not foreclosed by its nonparticipation in [a] third-party

action"); cf. § 25-5-11(d), Ala. Code 1975 ("In the event the injured

employee, or his or her dependents, in case of death, do not file a civil

action against the other party to recover damages within the time

allowed by law, the employer or the insurance carrier for the employer

shall be allowed an additional period of six months within which to bring

a civil action against the other party for damages on account of the injury

or death").

The Fund posits that there is a difference between the terms

"reimbursement" and "subrogation in § 25-5-11(a). We agree. Our

supreme court has held that, for the purposes of § 25-5-11(a), there is

indeed a distinction between a party seeking subrogation and a party

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seeking reimbursement for compensation paid under the Act. That court

explained:

"Alabama Code 1975, § 25-5-11, provides, among other
things, an employee the right to maintain an action against
an employer for workers' compensation benefits in connection
with an on-the-job injury while at the same time pursuing an
action for damages against a third party for that same injury.
Section 25-5-11 further allows a dependent of a deceased
employee to file a wrongful-death action under Ala. Code
1975, § 6-5-410, against third parties for the wrongful death
of the employee. Millers Mut. Ins. Ass'n v. Young, 601 So. 2d
962 (Ala. 1992).

"… If an employer has paid workers' compensation
benefits to an employee or death benefits to the dependents of
a deceased employee, then the employer may be reimbursed
for those benefits from any damages award received in the
action against the third party: 'To the extent of the recovery
of damages against the other party, the employer shall be
entitled to reimbursement for the amount of compensation
theretofore paid on account of injury or death.' Ala. Code
1975, § 25-5-11(a).

"This Court has held that § 25-5-11(a) allows an
employer to intervene in a wrongful-death action to be
reimbursed for benefits or compensation it paid. Ex parte
Cincinnati Ins. Co., 689 So. 2d 47 (Ala. 1997); Millers Mut.
Ins. Ass'n v. Young, supra. Before 1992, § 25-5-11 allowed
reimbursement only for 'compensation,' which this Court had
concluded did not include medical expenses. See Liberty Mut.
Ins. Co. v. Manasco, 271 Ala. 124, 123 So. 2d 527 (1960).
Thus, although an employer could be reimbursed for any
workers' compensation benefits or death benefits paid to the
employee or the deceased employee's dependents, the
employer could not be reimbursed for medical benefits
expended to care for the injured employee. In 1992, § 25-5-

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11(a) was amended to add the following language, which is
pertinent in the instant case: 'For purposes of this
amendatory act, the employer shall be entitled to subrogation
for medical and vocational benefits expended by the employer
on behalf of the employee.' (emphasis added); see Ala. Acts
1992, No. 92-537, § 8 (effective May 19, 1992).

"….

"Section 25-5-11(a) provides that an employer has a
right to 'reimbursement' of compensation and benefits. As to
medical benefits, however, the Code section states something
different: 'the employer shall be entitled to subrogation for
medical and vocational benefits.' The use of two different
terms -- 'reimbursement' and 'subrogation' -- is a distinction
that we infer has meaning. The 1992 amendment specifically
used the term 'reimbursement' in reference to compensation
and 'subrogation' in reference to medical benefits. '[W]hen the
legislature uses certain language in one part of the statute
and different language in another, the court assumes different
meanings were intended.... The use of different terms within
related statutes generally implies that different meanings
were intended.' 2A Norman Singer, Sutherland on Statutes
and Statutory Construction § 46:06, at 194 (6th ed. 2000)
(footnotes omitted). We presume that the use of two different
words indicates that the legislature intended the two words
be treated differently.

" ' Reimbursement' is a broad term implicating a simple
repayment or indemnification. Black's Law Dictionary 1312
(8th ed. 2004). Prior decisions interpreting this term for
purposes of § 25-5-11(a) have interpreted it to refer to the
repayment of compensation from the proceeds of an action
against a third party, whether a negligence action or a
wrongful-death action. Thus, an employer who had paid
workers' compensation benefits, including disability or death
benefits, is entitled to be reimbursed for those payments, even
from a punitive-damages award. See, e.g., Millers Mut. Ins.

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Ass'n v. Young, supra (an employer may be reimbursed from
the punitive-damages award in a wrongful-death action filed
by a deceased employee's estate for death benefits the
employer has paid).

"This Court, however, has equated the word
'subrogation' in § 25-5-11(a) specifically with the equitable
doctrine of subrogation. …

"….

"The 1992 legislation amending [§] 25-5-11(a) used this
term [('subrogation')] instead of 'reimbursement,' which was
retained in other portions of the Code section, and we believe
that the legislature's use of two different words indicates a
distinction between the terms. We thus hold that the term
'subrogation' as used in § 25-5-11(a) refers to the equitable
doctrine of subrogation. [Ex parte] BE&K Constr. Co., 728 So.
2d 621, 623-24 (Ala. 1998).]

"Under the equitable doctrine of subrogation, 'a
subrogee steps into the shoes of its subrogor and that
subrogee only gets those rights that its subrogor has. The
subrogee can have no greater rights.' Star Freight, Inc. v.
Sheffield, 587 So. 2d 946, 958 n.5 (Ala. 1991). Because Liberty
Mutual would not be able to recover medical expenses from
Indiana Mills and Manufacturing if it were to step into Trott's
shoes in the wrongful-death action, we hold that the Liberty
Mutual's right to subrogation under § 25-5-11(a) similarly
would not allow the recovery of medical benefits from the
proceeds of Trott's wrongful-death action."

Trott v. Brinks, Inc., 972 So. 2d 81, 83-87 (Ala. 2007) (footnotes omitted).

In this case, it is undisputed that the Fund paid only death benefits,

i.e., compensation, see § 25-5-11(a) and Trott, supra, as a result of the

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workers' compensation action and that no amount of future medical

benefits or vocational benefits is at issue in this matter. Thus, under the

holding of Trott, supra, the Fund's claim under § 25-5-11(a) is more

properly categorized as one seeking reimbursement, as the Fund urges,

as opposed to asserting a subrogation claim, as the estate contends and

the trial court ruled. 4

Yet the question remains: did the trial court err in concluding that

the Fund's reimbursement claim was untimely asserted? Ala. Code 1975,

§ 6-2-30(a), provides that "[a]ll civil actions must be commenced after the

cause of action has accrued within the period prescribed in [Article 2 of

Chapter 2 of Title 6] and not afterwards, unless otherwise specifically

4In certain cases preceding Trott v. Brinks, 972 So. 2d 81 (Ala.
2007), our courts, in addressing rights of recovery set forth in § 25-5-11
inuring to the benefit of an employer or a workers' compensation
insurance carrier, have used the terms "reimbursement" and
"subrogation" interchangeably. See, e.g., Davidson v. Pet, Inc., 644 So.
2d 896, 898 (Ala. Civ. App. 1994); Millers Mut. Ins. Assoc. v. Young, 601
So. 2d 962 (Ala. 1992); State Farm Mut. Auto. Ins. Co. v. Cahoon, 287
Ala. 462, 252 So. 2d 619 (1971); Liberty Mut. Ins. Co. v. Manasco, 271
Ala. 124, 126, 123 So. 2d 527, 529 (1960); River Gas Corp. v. Sutton, 701
So. 2d 35, 39 (Ala. Civ. App. 1997); H&H Wood Co. v. Monticello Ins. Co.,
668 So. 2d 38, 40 (Ala. Civ. App.) (main opinion of a single judge of this
court), cert. denied, 668 So. 2d 40 (Ala. 1995). Trott specifically stated
that the two terms encompass different concepts, however, and we are
bound by that precedent, see Ala. Code 1975, § 12-3-16.
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provided for in this code." (Emphasis added.) Although the trial court

viewed the Fund's claim to portions of the proceeds obtained by the estate

in the third-party action as necessarily having accrued at the time of

Tumlin's death, the statutory right sought to be vindicated by the Fund

is expressly predicated upon the existence and extent of the estate's

"damages recovered and collected." Indeed, our legislature has mandated

that "the employer shall be entitled to reimbursement for the amount of

compensation theretofore paid on account of injury or death" if the estate

"recover[s] … damages against the [third] party" tortfeasor(s), and only

"[t]o th[at] extent." Ala. Code 1975, § 25-5-11(a); see also Harrell v. Pet,

Inc., Bakery Div., 664 So. 2d 204, 207 (Ala. Civ. App. 1994) (noting that

employer waived its right, in an action seeking compensation under the

Act, to seek a setoff pursuant to § 25-5-11(a) by failing to timely inject

issue of employee's recovery of damages against responsible third parties,

but adding that it would have been necessary for the employer to "not

only prove that such damages were recovered, but, also, that they have

been collected").

As Presiding Judge Moore aptly noted in his treatise on workers'

compensation law, § 25-5-11(a) "does not provide for any particular

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period in which an action to enforce a credit right must be brought or

otherwise establish any peculiar procedure to follow to decide a

controversy over the distribution of the proceeds of a third-party action."

2 Terry A. Moore, Alabama Workers' Compensation § 21:70.50 (2d ed.

2013). Assuming, without deciding, that the trial court correctly

determined that an estate's failure to reimburse a workers' compensation

insurance carrier is "an[] injury to the … rights of another not arising

from contract" within the two-year statute of limitations set forth in § 6-

2-38(l) (as opposed to, for example, a money-had-and-received claim

subject to a six-year statute of limitations, see Snider v. Morgan, 113 So.

3d 643, 656 (Ala. 2012)), that cause of action did not accrue for limitations

purposes until, in early September 2022, the estate received settlement

proceeds stemming from the wrongful-death action (which, in this case,

were stipulated to have been a gross amount of $812,500, although the

estate's counsel had a 40% contingency-fee agreement and incurred

$30,842.50 in litigation expenses). The Fund's counterclaim seeking to

enforce its reimbursement rights under § 25-5-11(a) was filed on October

24, 2022, well within two years of the accrual of the pertinent cause of

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action; thus, the trial court's judgment concluding that the Fund's

counterclaim was untimely is erroneous.

In reversing the trial court's judgment, we emphasize that we are

bound by the statutes enacted at the behest of our legislature and by the

decisions of our supreme court. Neither the choices of legislatures of

other states nor the decisions of foreign courts interpreting such

legislation are similarly binding considerations. The last time that our

legislature weighed in on the issue of employer rights in the context of

third-party tort recoveries was in 1992, and, at that time, the legislature

expressly provided for a means by which employers and workers'

compensation insurance carriers could be subrogated to an employee's

rights when the employer had expended medical and vocational benefits

on the employee's behalf. Whether further changes to the Act ought to

be made is a matter for the informed discretion of that august body,

rather than this court. As this court observed in Hill v. Campbell, 804

So. 2d 1107, 1116 (Ala. Civ. App. 2001), "[i]t is our job to say what the

law is, not what it should be."

For the reasons stated herein, the summary judgment entered in

favor of the estate is reversed. Because the Fund did not raise as an issue

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the correctness of that portion of the trial court's judgment denying its

own summary-judgment motion, we, rather than rendering a judgment

in favor of the Fund, deem it prudent to remand the cause to the trial

court for the entry of a judgment or for further proceedings consistent

with this opinion. Cf. Liberty Mut. Ins. Co. v. D & G Trucking, Inc., 966

So. 2d 266, 271 (Ala. Civ. App. 2006) (indicating that an appellant, for

purposes of appellate review in connection with a pretrial final judgment

in favor of an adversary, may raise issues based upon the trial court's

denial of the appellant's own summary-judgment motions).

REVERSED AND REMANDED.

Moore, P.J., and Fridy and Lewis, JJ., concur.

Edwards, J., concurs in the result, without opinion.

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