Barr v. Preskitt

• Decision Date: 10 February 1975
• Docket Number: Civ. A. No. 74-67-E.
• Citation: 389 F. Supp. 496
• Parties: Mary Jean BARR, as Administratrix of the Estate of Jack Robinson, Deceased, Plaintiff, v. John PRESKITT et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

389 F. Supp. 496

Mary Jean BARR, as Administratrix of the Estate of Jack Robinson, Deceased, Plaintiff, v. John PRESKITT et al., Defendants.

Civ. A. No. 74-67-E.

United States District Court, M. D. Alabama, E. D.

February 10, 1975.

C. Neal Pope, Charles E. Floyd, Phenix City, Ala., for plaintiff.

W. G. Scrantom, Jr., and John T. Laney, III, Page, Scrantom, Harris, McGlamry & Chapman, Columbus, Ga., John V. Denson, Samford, Torbert, Denson & Horsley, Opelika, Ala., for defendants.

ORDER

VARNER, District Judge.

The instant suit is a suit brought by the administratrix¹ of the estate of a corporation's employee allegedly killed in the course of his employment. The president, vice-president and a co-employee of the corporation are the Defendants in the suit. The Plaintiff seeks to exercise a cause of action in tort against a third party tortfeasor while yet pursuing her decedent's workmen's compensation. It appears that Plaintiff may so proceed unless a definitive amendment to a statute is applied retrospectively. Applicability of the amendment is insisted upon by Defendants' motion to dismiss.

The question of primary importance in this case is whether the 1973 amendment to Code of Alabama, Title 26, § 312, is applicable to a cause of action which arose shortly before the amendment was passed and on which suit was filed shortly after the amendment was passed. Other sections of the workmen's compensation law of Alabama having provided for liability of the employer regardless of fault, § 312, at the time the cause of action arose, provided in workmen's compensation cases that:

"Where the injury * * * for which compensation is payable * * * was caused under circumstances also creating a legal liability for damages on the part of any person other than the employer * * *, the employee * * * may proceed against the employer to recover compensation * * * and at the same time may bring an action against such other party to recover damages for such injury or death * * *." (emphasis added)

In September, 1973, the section was amended so as to add, within the same sentence as that hereinabove quoted, the words:

"Provided, however, neither an officer, director, agent, servant or employee of the same employer nor his personal representative, shall be considered a party other than the employer against whom such an action may be brought."

This addendum did not change the wording of the remedy theretofore provided by § 312. It simply changed the definition of the term, "any person other than the employer", to exclude any person through whom the employer might be made liable, in fact if not at law.

This Court, therefore, approaches the questions whether or not the amendment may constitutionally be applied retrospectively and, if so, whether or not the Legislature so intended its application.

It is clear that a right of action may be vested, and if so, it becomes the property of him in whom it is vested, and the destruction of such a vested right is a violation of the due process clause of the Fourteenth Amendment. Gibbes v. Zimmerman, 290 U.S. 326, 54 S.Ct. 140, 78 L.Ed. 342; Graham v. Goodcell, 282 U.S. 409, 51 S.Ct. 186, 75 L.Ed. 415; Forbes Pioneer Boat Line v. Everglades Drainage District, 258 U.S. 338, 42 S.Ct. 325, 66 L.Ed. 647. It is equally clear that the State has complete control over the remedies which it offers to suiters in its courts, even to the point of making them applicable to rights or equities already in existence. Gibbes v. Zimmerman, supra; Hardware Dealers Mutual Fire Ins. Co. v. Glidden Co., 284 U.S. 151, 52 S.Ct. 69, 76 L.Ed. 214; League v. Texas, 184 U.S. 156, 22 S.Ct. 475, 46 L.Ed. 478. The problem often is one of drawing the distinction between remedial procedures and vested rights. Remedial or procedural statutes which do not create, enlarge, diminish, or destroy contractual or vested rights, but relate only to remedies or modes of procedure, are not within the general rule against retrospective operation and are generally held to operate retrospectively if so intended by the legislative body. Ohlinger v. United States, D.C., 135 F.Supp. 40; Ex parte Collett, 337 U.S. 55, 69 S.Ct. 944, 93 L.Ed. 1207.

Defenses, like causes of action, may be vested or they may be remedial. The following language appears in 16 Am. Jur.2d, Constitutional Law, § 425:

"The general rule may conveniently be summarized by stating that a vested right to an existing defense is protected in like manner as a right of action, with the exception only of those defenses which are based on informalities not affecting substantial rights.

"Illustrations abound of defenses which are clearly substantial and of which a party cannot be deprived. One who has actually satisfied a demand against him cannot be required to meet it again by having it revived against him. * * * A right of defense arising from res judicata is a vested right of which one cannot be deprived without a violation of constitutional guarantees.

"On the other hand, a party has no vested rights in the defense of usury and the repeal of a statute which permits the defense of usury acts retrospectively and does away with the defense in actions on contracts already made. It is a privilege that belongs to the remedy and forms no element in the rights that inhere in the contract. And it has been held that there is no property right in a defense to a promise or obligation to pay a debt where such defense arises from a lapse of time coupled with the bar of a statute of limitations. Similarly, a state may, consistent with due process of law, abolish the defense of contributory negligence, or require that the defense of contributory negligence or assumption of risk shall in all cases be left to the jury."

The statute here in question provides a clear defense to any officer, agent or employee of an employer responsible for an injury or death under the workmen's compensation laws. The defense given by the statute, in the view of this Court, is not one which as such has vested a right in any party but appears to be of the nature of an informality consisting of a matter which originally could have been dispensed with by the Legislature in the nature of remedial legislation. In that light, it would appear to be remedial, not a vested right.

Alabama courts have varied somewhat in determining whether or not various statutes are subject to retrospective application.

Alabama Power Co. v. Director of Industrial Relations, 36 Ala.App. 218, 54 So.2d 786,² involved a proceeding wherein the Director sought to award employee's benefits to an employee who, voluntarily and without good cause connected with such work, left his employment prior to expiration of the time which then would have entitled him to unemployment benefits (on February 22, 1948). By amendment adopted September 2, 1948, the law was changed to read that, where the employee leaves his work without good cause connected therewith, he may nonetheless become eligible for benefits provided he immediately takes another job on which he is employed for not less than the required eight weeks. The Department of Industrial Relations sought to tack the employment time served prior to the change of the law to the time served after the change of the law in order to award benefits to the employee. The question was whether or not the amendment should be retroactively construed so as to apply to those having theretofore permanently terminated their rights to compensation under pre-existing law. The Court determined that the amendment created a new and substantive right to compensation in favor of the employee which right did not exist prior to the amendment; that there was found therein no clear and indisputable expressions of legislative design to give the statute retroactive operation; and that, therefore, the Act should have no retroactive operation and the employee should be barred from the claimed benefits.

In Barrington v. Barrington, 200 Ala. 315, 76 So. 81, the Court faced the question of whether or not the statute authorizing divorce to a wife who has lived separate and apart and without support from the husband for five years next preceding the filing of the bill should be retroactively applied. In that case, the Court found that the statute gave a new legal effect to conduct or conditions existing prior to its enactment and that, even though it does not offend the Constitution by an impairment of the obligation of the contract or by creating a crime or punishment ex post facto, it will not be given retroactive effect unless by its express terms or by unmistakable implication the Legislature indicated that it so intended. Finding no such indication, the Court held that the time prior to the passage of the bill within which the wife had lived separate and apart from her husband without support therefrom could not be tacked to the time after passage of the statute for purposes of establishing the statutory five-year period.

In Bryce Hospital Credit Union, Inc. v. Warrior Dodge, Inc., 276 So.2d 602, the Court of Civil Appeals of Alabama found the provision of the amendment to Title 36, § 159, Code of Alabama 1940, adopted in September, 1971, was retrospective to the extent that it applied to allow the appellee, holder of a mechanic's lien on an automobile, to sell and pass clear title to said automobile "abandoned" on his premises as defined by provisions of § 159. The security interest by which appellant claimed a prior interest was duly filed in March, 1971, repairs to the car were completed by the appellee in August, 1971, the law under which the appellee contends he had a right to sell the vehicle was adopted...