Ex parte Progress Rail Services Corp.

• Decision Date: 20 June 2003
• Citation: 869 So.2d 459
• Parties: Ex parte PROGRESS RAIL SERVICES CORPORATION. (In re Daniel Pantoja Garcia, as dependent of Lydia Garcia, deceased; et al. v. Progress Rail Services Corporation et al.)
• Court: Alabama Supreme Court

869 So.2d 459

Ex parte PROGRESS RAIL SERVICES CORPORATION.

(In re Daniel Pantoja Garcia, as dependent of Lydia Garcia, deceased; et al. v. Progress Rail Services Corporation et al.)

1012357.

Supreme Court of Alabama.

June 20, 2003.

Samuel H. Franklin and Stephen J. Rowe of Lightfoot, Franklin & White, L.L.C., Birmingham; and Charles R. Hare, Jr., of Gullahorn & Hare, P.C., Albertville, for petitioner.

Rex W. Slate and Cathey E. Berardi of Hebson, Liddon & Slate, Birmingham; and E. Shane Hollaway of Hollaway Law Office, Guntersville, for respondents.

HARWOOD, Justice.

By its petition for a writ of mandamus filed on September 25, 2002, Progress Rail Services Corporation ("Progress Rail") seeks an order directing the Marshall Circuit Court to dismiss the plaintiffs' claims against it, on the basis that the claims were barred by the exclusivity and immunity provisions of the Alabama Workers' Compensation Act.

The tragic circumstances giving rise to the underlying action are as follows: Lydia Garcia and her husband, Daniel Pantoja Garcia, were both employees of Progress Rail, a company that, among other things, purchased old railroad cars and locomotives for scrap metal. Lydia's and Daniel's job responsibilities included cutting scrap metal with a cutting torch, described in the plaintiffs' complaint as a "blow torch." In November 2001, Progress Rail was in the process of cutting up several railroad box cars and a locomotive for scrap metal. The crew consisted of Lydia and Daniel and their supervisor, James Painter. Initially, Painter told the couple that one of the cars, which had a 4,000-gallon diesel fuel tank, would not be cut because there was fuel residue in the tank. Subsequently, however, on November 13, 2001, Painter retrieved the fuel tank and ordered Daniel and Lydia to cut it in half, apparently so that it would fit on a truck for transport. They began cutting the fuel tank, working on opposite ends. At a point in the operation, an explosion occurred and Lydia was engulfed in flames; she died of her injuries approximately 14 days later.

It is undisputed that at the time of the incident, Lydia was an employee of Progress Rail and that her injury and resulting death were caused by an accident arising out of and in the course of her employment. Subsequently, in a separate action filed in the Marshall Circuit Court, the circuit court determined that Daniel and the couple's three children were the "appropriate and sole dependents [of Lydia] to receive the benefits under the Alabama Workers' Compensation Act." Those benefits, both accrued and prospective, were declared by a judgment entered on March 13, 2002; that judgment contained the provision that "[f]ollowing the payment of the benefits set out herein, all obligations of [Progress Rail] to the dependents under the Alabama Workers' Compensation Act shall cease." Four days before that judgment was entered, Daniel and the three children, proceeding in various specified capacities (hereinafter collectively referred to as "the Garcias"), sued Progress Rail, Progress Energy Service Company, LLC, Painter, and three other of Lydia's co-employees.

The Garcias' five-count complaint asserted the following claims: Count I, alleging that the defendants, including Progress Rail, "intentionally and/or willfully caused the fatal injuries to the deceased," in violation of their duty to provide her with a safe place to work; Count II, alleging that Progress Rail intentionally and willfully failed to hire, train, and/or supervise the co-employee defendants; Count III, alleging that the co-employee defendants willfully and/or intentionally controlled and/or failed to control the method and manner by which the work was performed, entitling the Garcias to recover damages against all defendants; Count IV, alleging that Daniel was entitled to recover for loss of consortium; and Count V, alleging that Lydia's three minor dependent children were entitled to recover for loss of her services.

Progress Rail, jointly with the other defendants, filed a motion to dismiss, asserting that the various counts failed to state a claim upon which relief could be granted. Progress Rail specifically asserted that, as to it, the Garcias' claims were barred by the exclusive-remedy provisions of the Workers' Compensation Act, § 25-5-1 et seq., Ala.Code 1975 (hereinafter sometimes referred to as "the Act"). Progress Rail pointed out that it was undisputed that it was Lydia's employer and that her accident and injuries occurred while she was performing the duties of her employment; that it was an employer subject to the Act; and that, in fact, it was already paying benefits to the Garcias pursuant to the Act. On August 14, 2002, after conducting a hearing on the motion, the circuit judge denied the motion. Only Progress Rail challenges that ruling in this mandamus petition.

The issue presented, as framed by the petition, the Garcias' answer and brief, and Progress Rail's reply brief, may be paraphrased as follows:

"Where an employee is injured, and subsequently dies, as a result of an accident arising out of and in the course of her employment, which injury and death are covered under the Alabama Workers' Compensation Act, and her dependants receive temporary total disability benefits, medical benefits, death benefits, and burial expense benefits from the employer under the Act, may the dependents maintain a separate tort action against the employer alleging that the employer had intentionally and willfully failed to provide a safe place to work, in violation of § 25-1-1, Ala.Code 1975?"

Although the Garcias have asserted loss-of-consortium and loss-of-services claims, they do not argue those claims in their answer and brief. In fact, they argue only that the claims presented by Count I should be allowed to proceed. Even if the claims alleging loss of consortium and loss of services could otherwise be legally cognizable, they are derivative of, and dependent upon the outcome of, the direct claim arising out of Lydia's death. Therefore, if the exclusivity provisions of the Act are applicable to the direct claim, the derivative claims are likewise subject to the exclusivity provisions. See Murdock v. Steel Processing Servs., Inc., 581 So.2d 846 (Ala.1991). Given our disposition of the direct claim, we need not separately analyze the loss-of-consortium and loss-of-services claims.

Various sections of the Code of Alabama 1975 are pertinent to a proper analysis of the issue presented by this petition. Section 25-1-1(a), the first section of Article 1 of Chapter 1 of Title 25, "Industrial Relations and Labor," reads:

"(a) Every employer shall furnish employment which shall be reasonably safe for the employees engaged therein and shall furnish and use safety devices and safeguards and shall adopt and use methods and processes reasonably adequate to render such employment and the places where the employment is performed reasonably safe for his employees and others who are not trespassers, and he shall do everything reasonably necessary to protect the life, health and safety of his employees and others who are not trespassers."

Chapter 5 of Title 25 of the Alabama Code 1975, entitled "Workers' Compensation" contains the following pertinent sections:

Section 25-5-1(7): "Accident. The term, as used in the phrases `personal injuries due to accident' or `injuries or death caused by accident' shall be construed to mean an unexpected or unforeseen event, happening suddenly and violently, with or without human fault, and producing at the time injury to the physical structure of the body or damage to an artificial member of the body by accidental means."

Section 25-5-1(8): "Injuries by an accident arising out of and in the course of the employment. Without otherwise affecting either the meaning or interpretation of the clause, the clause does not cover workers except while engaged in or about the premises where their services are being performed or where their service requires their presence as a part of service at the time of the accident and during the hours of service as workers."

Section 25-5-11(a): "If the injury or death for which compensation is payable under Articles 3 or 4 of this chapter 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 a party, other than the employer, is a workers' compensation insurance carrier of the employer or any person, firm, association, trust, fund, or corporation responsible for servicing and payment of workers' compensation claims for the employer, or any officer, director, agent, or employee of the carrier, person, firm, association, trust, fund, or corporation, or is a labor union, or any official or representative thereof, or is a governmental agency providing occupational safety and health services, or an employee of the agency, or is an officer, director, agent, or employee of the same employer, or his or her personal representative, the injured employee, or his or her dependents in the case of death, may bring an action against any workers' compensation insurance carrier of the employer or any person, firm, association, trust, fund, or corporation responsible for servicing and payment of workers' compensation claims for the employer, labor union, or the governmental agency, or person, or his or her personal representative, only for willful conduct which results in or proximately causes the injury or

...