Alabama’s Exclusivity Doctrine Fails to Protect Employer from Wrongful Death Claim Following Employee’s Fatal Heart Attack at Work

The Alabama Supreme Court recently denied a petition filed by a large retail chain for a Writ of Mandamus. The petition was filed as the result of the trial court denying the defendant employer’s motion for judgment on the pleadings. It was the position of the employer that its employee’s wrongful death claim was barred by the exclusive remedy provision of the Alabama Workers’ Compensation Act.  The only written opinion was authored by Justice Mitchell who dissented. Justice Mitchell explained that any injury that an employee suffers because of employer provided treatment following a work accident should be considered as arising out of the employment. He also noted that the Alabama Supreme Court had previously held that the existence of an employer/employee relationship between a decedent and a defendant at the time of death triggered the exclusivity doctrine and made workers’ compensation death benefits the sole remedy for the decedent’s dependents.

Alabama Supreme Court Makes Emergency Pandemic Rule Regarding Settlement Procedure Permanent

On December 30, 2021, the Alabama Supreme Court adopted Rule 47 of the Alabama Rules of Judicial Administration, providing that a Circuit Court shall dismiss any pending action seeking workers’ compensation benefits when (1) the parties have reached a settlement, (2) the settlement has been reviewed and approved by an Alabama Department of Labor Workers’ Compensation Division Ombudsman, and (3) the parties file the approved settlement agreement, along with a joint stipulation of dismissal with the Court.

About the Author

Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third-party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is the sole Alabama member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.

On August 22, 2021, the Alabama Supreme Court issued Administrative Order No. 13, which declared a temporary state of emergency for the entire Judicial Branch of the State of Alabama due to recent increases in COVID-19 infections.  The Order expressly provides that, subject to any party’s substantive or constitutional rights, any Alabama rule or statute that impedes a judge's or court clerk's ability to utilize available audio/visual technologies is suspended until November 29, 2021. 

Judges are now temporarily authorized to use their discretion to allow any discovery, testimony, appearance, proceeding, hearing, review, or bench trial to be conducted by audio/video technologies upon making a written finding that, for good cause shown, time is of the essence for the administration of justice.

About the Author

This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third-party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.

The Alabama Supreme Court recently released its opinion in Jackson v. Voncille Allen and Penn Tank Lines, Inc. The plaintiff, Patrick Jackson, was riding in the passenger seat of a commercial vehicle being operated by Valerie Allen, an owner/operator leased to Penn Tank Lines (PTL).  Allen was killed in the accident, and Jackson alleged severe injuries.  Jackson sued Allen’s estate, asserting that Allen’s negligence had caused the accident, and asserted claims of negligent hiring, training, and supervision against PTL, as well as vicarious liability for Allen’s actions through the doctrine of respondeat superior.   Allen’s estate claimed it was entitled to immunity pursuant to § 25-5-53 of The Alabama Workers’ Compensation Act, which provides that agents of the same employer are immune to civil liability, except those based on willful misconduct.  PTL claimed it was immune pursuant to § 25-5-52 and § 25-5-53 as Jackson’s employer and because Allen was PTL’s agent.  

In support of its position, PTL argued that it was leasing the commercial vehicle from Allen and had exclusive possession, control, and use of the vehicle.  PTL also asserted that Allen was training Jackson at the time of the accident, and that Allen was therefore an agent of PTL.  Finally, PTL asserted that under Federal Motor Carrier Safety Administration (FMCSA) regulations, an owner/operator of a commercial vehicle, despite her status as an independent contractor, is deemed to be an employee of the motor carrier while operating the commercial vehicle.  PTL and Allen’s estate both filed motions for summary judgment, and Jackson argued that there were genuine issues of material fact as to whether Allen’s estate and PTL were entitled to immunity.

In support of his position, Jackson pointed out that the independent owner/operator agreement between Allen and PTL specified that Allen would use her own judgment when conducting her work, PTL could not require Allen to accept specific assignments, and that PTL had not withheld taxes from Allen’s pay.  Jackson further asserted that although Allen had been required to comply with PTL’s policies and procedures, Allen was required to provide her own safety clothing, shoes, and equipment.  The trial court entered summary judgment in favor of both defendants, and Jackson subsequently appealed.  

The Supreme Court affirmed summary judgment in favor of PTL as Jackson’s employer, but reversed the trial court’s judgment to the extent that it found Allen was PTL’s agent as a matter of law.  The Supreme Court noted that the test for determining whether one is an agent or an independent contractor is whether the principal/employer retained a right of control, and that such determination was a question of fact that should generally be decided by the jury.  However, the decision was not unanimous.  Justices Bolin and Sellers concurred in part and dissented in part, stating that it is possible for someone to be both an independent contractor and an agent at the same time.  However, both agreed the undisputed material facts established that Allen was acting as an agent at the time of the accident. 

About the Author

This blog submission was prepared by Charley Drummond, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation.  Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at cdrummond@fishnelson.com, or calling him directly at (205) 332-3414.

On July 28, 2021, the Alabama Supreme Court issued Administrative Order No. 12, which extended its previous orders concerning workers’ compensation settlements. This means that the following rules will be in effect through October 29, 2021:

1. Any workers’ compensation settlement hearing in any court may be conducted telephonically or by videoconferencing.

2. Any workers’ compensation settlement may be approved by an ombudsman of the Alabama Department of Labor (ADOL) or by a circuit judge. If a workers’ compensation case pending in court is settled with written approval of an ombudsman from the ADOL, that settlement shall result in the dismissal of the workers’ compensation claim pending in court.

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This blog submission was prepared by Karen Cleveland, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third-party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Cleveland by e-mailing her at kcleveland@fishnelson.com or by calling her directly at 205-332-1599.

On July 30, 2021, the Alabama Court of Civil Appeals released an opinion in Kevin Patrick v. Mako Lawn Care, Inc. wherein it addressed the compensability of an assault by a co-employee.  The altercation was the result of a feud between two lawn care crews.  The member of one crew took the other crew’s mower home for personal use.  To retaliate, a member of the other crew did the same thing.  After that, words were exchanged.  The situation escalated into a physical fight resulting in injury.  The trial judge entered judgment for the employer because the altercation did not arise out of the employment, the employer did not benefit from the altercation, and that the plaintiff was an active participant and the aggressor.  The Court of Appeals agreed that the law was correctly applied to the facts but that it did not necessarily agree with all the language and reasoning in the trial court’s final order.

My Two Cents:

We may not have heard the last of this Lawncare Crew Feud.  The plaintiff argued that the Court’s reliance on a 1927 decision as controlling was misplaced because there were more recent decisions with a more liberal view on work altercations.  The Court, however, noted that the 1927 case was still controlling and the plaintiff would have to petition the Alabama Supreme Court to overrule the older case. Unless the parties reach a settlement, that the plaintiff may very well do that.

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About the Author

This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.

On July 15, 2021, the presiding judge of the 10th Judicial Circuit of Alabama, Jefferson County, entered an Administrative Order which extended the previously entered Order concerning the holding of non-jury court proceedings by video or audio conference.

The previous Order provided Jefferson County Circuit Judges with discretion to hold virtual court hearings in all non-jury proceedings which included workers’ compensation cases. 

The previous Order can be accessed at the following link:

 administrative-order-2020-031-virtual-court-proceedings.pdf (alacourt.gov)

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About the Author

This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third-party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.

As of July 1, 2021, the maximum workers’ compensation payable is increased to $983.00 per week and the minimum is increased to $270.00 per week.  The memorandum regarding the new minimum and maximum rates issued by the Director of the Alabama Department of Labor Workers’ Compensation Division, Steve Garrett, can be accessed at https://labor.alabama.gov/docs/guides/wc_weeklywage.pdf.

About the Author

This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.

In exchange for providing no fault workers’ compensation insurance, Alabama employers are afforded the protections of the Exclusivity Doctrine. While this doctrine serves to insulate employers from liability claims, Alabama Code § 25-5-11 provides a means for recovery against supervisors and safety personnel. To prevail, the employee must prove by clear and convincing evidence that the injuries resulted from a co-employee’s willful conduct. § 25-5-11(c)(1) requires a finding that the co-employee acted in a manner where he or she knew or should have known that someone would be injured. § 25-5-11(c)(2) requires a finding that the co-employee committed an overt act, such as removing a safety device that exposed the plaintiff to injury.

The Alabama Supreme Court recently reaffirmed the difficulty of proving co-employee willful conduct claims in its Means v. Glover opinion. In Means, the employee was burned by molten lead. At the time of the incident, he was using a forklift to pour a 55-gallon drum of sodium hydroxide into a hot kettle of molten lead and other metals. Because the process was newly developed and implemented, he did not know that he was adding the sodium hydroxide too quickly, or that doing so would cause it to react with the aluminum, form hydrogen gas, and explode. The employee asserted that his co-workers should have known of the dangers of mixing the substances, and that a safety windshield should have been installed on the forklift. However, he failed to produce the requisite clear and convincing evidence that his co-workers knew of the danger and instructed him to proceed with pouring the sodium hydroxide, with purpose of causing injury. For this reason, the trial court entered judgment in favor of the employer on the § 25-5-11(c)(1) claim.

Judgment was also entered in favor of the employer on the § 25-5-11(c)(2) claim because the evidence established that the forklift was purchased without a safety windshield. To prevail under this statutory provision, the safety mechanism must have been removed. There is no provision that an available safety mechanism must be added.

The Alabama Supreme Court found no error and affirmed the trial court’s Order.

About the Author

This blog submission was prepared by Karen Cleveland, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Cleveland by e-mailing her at kcleveland@fishnelson.com or by calling her directly at 205-332-1599.

The Alabama Court of Civil Appeals recently released an opinion in In re: Laura Register v. Outdoor Aluminum, Inc. wherein it reversed summary judgment in favor of the employer in a retaliatory discharge case.  While the decision itself did not create any new legal precedent, or narrow, or expand prior holdings, it did highlight the importance of communication between the employer and the workers’ compensation claim handler. 

In Register, the non-retaliatory reason asserted as the basis for the termination was absenteeism. In the usual case, assuming the employee was absent more than what would typically be allowed, such a reason would be considered legitimate and not pre-textual.  In Register, however, since the employee had not yet been medically released to return to work, the Court of Appeals determined that there was a contradiction between the work status and the alleged absenteeism.  As such, the Court held that there were material issues in dispute that needed to be decided by a jury. 

My Two Cents: As the prison captain said to Paul Newman’s character in Cool Hand Luke, “What we’ve got here is a failure to communicate.”  The effective handling of a workers’ compensation claim involves a partnership between the employer and the claims handler.  As with any good partnership, communication is the key to success.  In many cases, years of litigation and the time and expense associated with it can be avoided with a single e-mail or phone call.

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This blog submission was prepared by Karen Cleveland, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Cleveland by e-mailing her at kcleveland@fishnelson.com or by calling her directly at 205-332-1599.