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

_________________________

CL-2023-0901

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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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2

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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3

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 wrongfuldeath 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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4

On September 20, 2022, the Fund filed a motion in the wrongfuldeath 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 wrongfuldeath 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 declaratoryjudgment 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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5

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 declaratoryjudgment 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 declaratoryjudgment 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.
CL-2023-0901

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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 
CL-2023-0901

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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.
CL-2023-0901

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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 
CL-2023-0901

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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 
CL-2023-0901

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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.