Billy Barnes Enterprises, Inc. v. Williams

• Citation: 982 So.2d 494
• Decision Date: 28 September 2007
• Docket Number: 1050183.
• Parties: BILLY BARNES ENTERPRISES, INC. v. Herman Gerald WILLIAMS.
• Court: Alabama Supreme Court

982 So.2d 494

BILLY BARNES ENTERPRISES, INC. v. Herman Gerald WILLIAMS.

1050183.

Supreme Court of Alabama.

September 28, 2007.

David M. Wilson and Irene E. Blomenkamp of Wilson & Berryhill, P.C., Birmingham, for appellant.

Taylor T. Perry, Jr., of Manley, Traeger, Perry & Stapp, Demopolis, for appellee.

SMITH, Justice.

Billy Barnes Enterprises, Inc. ("Billy Barnes"), the defendant below, appeals from the judgment of the trial court enforcing a settlement agreement between Billy Barnes and the plaintiff, Herman Gerald Williams, in this personal-injury action stemming from a railroad accident. We reverse and remand.

Facts and Procedural History

Williams worked as a "switchman" for Railserve, Inc. ("Railserve"), a company that provides railroad switching services. On April 12, 2001, Williams was riding on the rear railcar of a train operating on the grounds of a lumber mill owned by Weyerhaeuser Company ("Weyerhaeuser") and located in Pine Hill. The train was moving in reverse, and Williams was providing directions over a radio to the engineer operating the train's engine, Alex D. Young, who could not see the rear of the train.

As the train neared a road crossing, a truck approached the crossing at a high rate of speed and failed to yield to the train. Williams activated an emergency brake in an attempt to stop the train and avoid a collision with the truck. The emergency brake caused the train to jerk, and Williams was thrown off the train and onto the tracks, where the train rolled over one of his legs, causing significant injury. Williams radioed Young for help, and Young contacted the guard shack at the lumber mill to send medical assistance. Gladys Dobbs, a nurse employed by Weyerhaeuser, responded with an ambulance. Dobbs later completed an occupational-injury report and recorded that the accident was reported at 8:05 p.m.

On February 13, 2003, Williams sued Billy Barnes. In his complaint, Williams alleged that the truck that failed to yield and thereby contributed to the accident was owned and operated by Billy Barnes. Thus, Williams alleged, Billy Barnes was liable for his injuries.

In February 2004, Billy Barnes filed a motion for a summary judgment. With its motion, Billy Barnes submitted evidence from the computerized gate log at the lumber mill and the scale receipts that demonstrated that three Billy Barnes trucks had been at the lumber mill at various times on the day of the accident, but that the last truck had left the facility at 6:37 p.m., well before the accident was reported to Dobbs at 8:05 p.m. Thus, Billy Barnes argued that it was entitled to a summary judgment because, it said, none of its trucks were involved in the accident.

In response to the summary-judgment motion, Williams filed an affidavit in which he stated that the accident occurred shortly after 6:00 p.m. and that he could clearly see the words "Billy Barnes" written on the side of the truck. Williams further stated that it took a substantial amount of time for help to arrive after the accident occurred. The trial court subsequently denied the motion for a summary judgment.¹

In April 2004, counsel for Billy Barnes sent a proposed nonparty subpoena to counsel for Railserve, requesting worker's compensation documents relating to Williams's accident including, among other things, any statement obtained from Williams. Railserve answered with an objection but also produced numerous medical and worker's compensation documents. The materials do not mention whether a statement was taken from Williams. In August 2004, counsel for Billy Barnes requested additional information not found in the worker's compensation documents, including whether anyone had obtained a statement from Williams. Billy Barnes asserts that in response to this letter, Railserve's counsel indicated that no statements from Williams were provided by the workers' compensation carrier.

Williams was deposed in December 2004, and he testified that he had given no statement regarding the accident. Williams gave a detailed description of the truck that failed to yield at the crossing, stating that he was able to read the words "Billy Barnes Trucking," which were written in white and red letters. Williams further testified that the accident occurred sometime between 6:15 p.m. and 7:00 p.m. Williams stated that he could not immediately contact anyone on the radio for help, and that a period of time passed before he received any aid. Williams further stated that he first told someone that a Billy Barnes truck was involved when Rick Delloma — a Railserve employee — and an "insurance person" visited him at the hospital after the accident.² Williams was then asked: "Q: ... Have you given any kind of verbal statement to anybody, that was recorded to your knowledge, about what happened?" Williams answered: "No."

In May 2005, The Marmon Group, LLC ("Marmon"), the parent corporation of Williams's employer, Railserve, filed a complaint seeking to intervene in the case as a plaintiff. Specifically, Marmon alleged that it had paid over $140,000 in worker's compensation benefits in connection with Williams's injury and that it was therefore entitled to certain subrogation rights to any award Williams would receive in his action against Billy Barnes.

In June 2005, Railserve was served with subpoenas by Billy Barnes to disclose any statements or reports concerning the accident. In a letter dated July 20, 2005, counsel for Railserve responded to the subpoenas and indicated that he was "not aware of any non-privileged documents" that had not already been produced. Billy Barnes's counsel responded with a letter indicating that, because he did not know what materials counsel was claiming were privileged or nondiscoverable, he requested a "privilege log" supporting any claim of privilege and to clarify whether any statements existed and, if so, whether the statements could be voluntarily produced. Billy Barnes asserts that Railserve refused to voluntarily provide a privilege log. Billy Barnes thus filed a motion to compel, seeking production of the privilege log.

The trial court held a hearing on the motion on August 8, 2005. At the hearing, Billy Barnes's counsel expressed the opinion that it was unusual that neither Marmon nor its subsidiary Railserve took recorded statements from any witnesses in anticipation of a future worker's compensation action by Williams. Furthermore, Alex Young had stated in his deposition that Rick Delloma had taken a statement from him, but neither Railserve nor Marmon had produced such a statement in response to the subpoenas.

Counsel representing both Marmon and Railserve stated in open court that they were not aware of any such statements and that they had been told that none existed. Nevertheless, the trial court explicitly ordered Marmon and Railserve's counsel to turn over a privilege log and any recorded statements:

"If there are any recorded statements ... if there are statements taken, if there is anything done ... in the way of an investigation of this accident, then I would require that those things be produced.... If somebody has been tape-recording conversations, and I require that the tape-recorded conversation be produced ...."

Billy Barnes received a privilege log from counsel for Marmon and Railserve on August 9, 2005. On August 11, Billy Barnes filed two motions asking the trial court to compel production of certain materials listed on the privilege log, including a "Memo to the File" authored by Delloma regarding his investigation of the accident. Billy Barnes also filed a general request to compel Marmon to produce any statements relating to Williams's accident.

Trial was scheduled to start on August 29, 2005. On August 19, 2005, the parties held a mediation conference. On August 22, a conference call was held with the parties and the trial court, during which Billy Barnes again argued its motions to compel. Regarding the August 22 conference call, Billy Barnes's counsel stated in an affidavit:³

"[The trial court] verbally ordered [Marmon and Railserve's counsel] to produce the `Memo to the File' authored by Mr. Rick [Delloma], and further to determine whether any worker's compensation carrier or third party administrator was in possession of any recorded statements. If so, [counsel] was to produce the statements."

Billy Barnes's counsel "received the Memo to the File via facsimile at approximately 3:00 p.m. on August 22. There was no mention of any recorded statement having been taken from Mr. Williams...." Later that day, Billy Barnes and Williams agreed to a settlement in the amount of $500,000.

On August 23, 2005 — the next day — counsel for Marmon and Railserve contacted Billy Barnes and indicated that two audiotapes of recorded statements had been located and were being transcribed, but that the identities of the persons giving and taking the statements were unknown. On August 25, 2005, Billy Barnes received transcripts of recorded statements by Young and by Williams. In Williams's statement, which was apparently taken on April 18, 2001, several days after the accident, Williams stated: (1) that he was aware that his statement was being recorded and that it was being recorded with his permission; (2) that the accident occurred "close to 8:30"; and (3) that when he looked at the truck that caused the accident he "couldn't see a name" written on it.

On September 7, 2005, Billy Barnes filed a motion to set aside the settlement agreement and to restore the case to the trial docket. In the motion, Billy Barnes argued that it had "steadfastly maintained" that it did not have a truck present at the lumber mill at the time of the accident and that the only person who purportedly saw a Billy Barnes truck in the lumber mill at the time of the accident was Williams. Williams, however, had testified that a Billy Barnes truck caused the accident. Additionally, Billy Barnes noted in the motion that Williams's sworn...