Ex Parte the Salvation Army.(in Re Roy Williams v. First Choice Pers. Llc

• Decision Date: 18 February 2011
• Docket Number: 2100033.
• Parties: Ex parte The SALVATION ARMY.(In re Roy Williamsv.First Choice Personnel, LLC, and The Salvation Army).
• Court: Alabama Court of Civil Appeals

72 So.3d 1224

Ex parte The SALVATION ARMY.(In re Roy Williams

v.First Choice Personnel, LLC, and The Salvation Army).

2100033.

Court of Civil Appeals of Alabama.

Feb. 18, 2011.Certiorari Denied June 10, 2011

Alabama Supreme Court 1100638.

Patricia J. Ponder and Katie L. Hammett of Hand Arendall LLC, Mobile, for petitioner.Patrick J. Ballard of Ballard Law Office, Birmingham, for respondent.BRYAN, Judge.

The Salvation Army seeks a writ of mandamus ordering the Etowah Circuit Court to enter a summary judgment in its favor with respect to Roy Williams's tort claims against it. The Salvation Army contends that it is immune to those claims under the exclusive-remedy provisions of the Alabama Workers' Compensation Act, § 25–5–1 et seq., Ala.Code 1975 (“the Act”). We grant the petition and issue the writ.

Williams was employed by First Choice Personnel, LLC (“First Choice”), a temporary-employment agency. In September 2006, First Choice assigned Williams to work for The Salvation Army, a client of First Choice. Williams worked as a general laborer for The Salvation Army for approximately the next 10 weeks. On November 21, 2006, Williams was allegedly injured in an automobile accident while performing work for The Salvation Army.

On October 2, 2007, Williams sued First Choice and The Salvation Army. Williams alleged a claim for workers' compensation benefits against First Choice, and he alleged claims of negligence and wantonness against The Salvation Army. The Salvation Army filed an answer asserting, among other things, that “the claims in [Williams's] Complaint are barred by the exclusivity provisions of the ... Act.” On April 9, 2010, The Salvation Army filed a motion for a summary judgment, asserting that it was Williams's “special employer” under the Act and, therefore, that the exclusive-remedy provisions of the Act bar Williams's tort claims against The Salvation Army. Following a hearing, the trial court entered an order denying The Salvation Army's summary-judgment motion. The Salvation Army petitioned the supreme court for a writ of mandamus directing the trial court to enter a summary judgment dismissing the tort claims on the ground that those claims are barred under the exclusive-remedy provisions of the Act. The supreme court then transferred the petition to this court on the ground that the petition fell within this court's jurisdiction.

“A writ of mandamus is an extraordinary remedy, and it will be ‘issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.’ Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993). A writ of mandamus will issue only in situations where other relief is unavailable or is inadequate, and it cannot be used as a substitute for appeal. Ex parte Drill Parts & Serv. Co., 590 So.2d 252 (Ala.1991).”

Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala.1998).

“In reviewing the disposition of a motion for summary judgment, ‘we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact,’ Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988), and whether the movant was ‘entitled to a judgment as a matter of law.’ Wright v. Wright, 654 So.2d 542 (Ala.1995); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797–98 (Ala.1989). Evidence is ‘substantial’ if it is of ‘such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ Wright, 654 So.2d at 543 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993); Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).”

Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997).

Initially, we address whether we may review, by a petition for a writ of mandamus, the trial court's denial of The Salvation Army's summary-judgment motion. The Salvation Army moved for a summary judgment on the ground that it is immune from tort liability under the exclusive-remedy provisions of the Act. “Mandamus review of the denial of a summary-judgment motion ‘grounded on a claim of immunity’ is an exception to the general rule against interlocutory review of the denial of summary-judgment motions. Ex parte Auburn Univ., 6 So.3d 478, 483 (Ala.2008).” Ex parte Simpson, 36 So.3d 15, 22 (Ala.2009) (emphasis omitted) (reviewing by mandamus petition the denial of a summary-judgment motion concerning legislative immunity and immunity under the Noerr–Pennington doctrine, under which “those who petition any department of the government for redress are generally immune from statutory liability for their petitioning conduct,” Sosa v. DIRECTV, Inc., 437 F.3d 923, 929 (9th Cir.2006)). See also Ex parte Wood, 852 So.2d 705 (Ala.2002) (reviewing by mandamus petition the denial of a summary-judgment motion grounded on State-agent immunity).

Citing Ex parte South Carolina Insurance Co., 412 So.2d 269 (Ala.1982), Williams argues that the denial of a summary-judgment motion grounded on a claim of immunity under the exclusive-remedy provisions, as opposed to some other types of immunity, is not reviewable by mandamus petition. In that case, certain defendants, following the denial of their summary-judgment motions, petitioned the supreme court for a writ of mandamus, arguing that the Act provided them immunity from the claims against them. The supreme court denied the petition, stating that “it is obvious that the defendants are seeking to do by mandamus that which can be done on appeal” and that “[m]andamus cannot be used as a substitute for appeal.” 412 So.2d at 270. Accordingly, Williams has filed a motion to dismiss the mandamus petition.

However, in two subsequent cases, Ex parte McCartney Construction Co., 720 So.2d 910 (Ala.1998), and Ex parte Progress Rail Services Corp., 869 So.2d 459 (Ala.2003), our supreme court reviewed by a mandamus petition the issue of employer immunity under the Act. Those two cases concerned the denials of motions to dismiss, unlike Ex parte South Carolina Insurance Co., which concerned the denial of a summary-judgment motion. However, whether a claim of immunity is denied following a motion to dismiss or a summary-judgment motion appears to be immaterial to the issue whether such a denial may be reviewed by mandamus. See Ex parte Haralson, 853 So.2d 928, 931 n. 2 (Ala.2003) (“The denial of a motion to dismiss or a motion for a summary judgment generally is not reviewable by a petition for writ of mandamus, subject to certain narrow exceptions, such as the issue of immunity.”); compare, e.g., Ex parte Butts, 775 So.2d 173, 176 (Ala.2000) (reviewing the denial of motion to dismiss grounded on State immunity and State-agent immunity and stating generally that “a petition for a writ of mandamus is an appropriate means for seeking review of an order denying a claim of immunity”); and Ex parte Wood, supra (reviewing by mandamus petition the denial of a summary-judgment motion grounded on State-agent immunity). In light of the holdings in the more recent cases— Ex parte McCartney Construction Co. and Ex parte Progress Rail Services Corp.—we conclude that the trial court's order denying The Salvation Army's summary-judgment motion based on its assertion of immunity under the exclusive-remedy provisions of the Act is subject to mandamus review. See also Ex parte Simpson, supra; and Ex parte Wood, supra. Accordingly, we deny Williams's motion to dismiss the mandamus petition.

In Bechtel v. Crown Central Petroleum Corp., 451 So.2d 793, 795 (Ala.1984), our supreme court concluded that an employer's immunity under the exclusive-remedy provisions of the Act is an affirmative defense and, therefore, is subject to the pleading requirements of Rule 8(c), Ala. R. Civ. P. In its answer, The Salvation Army generally asserted the exclusive-remedy affirmative defense by stating that “the claims in [Williams's] Complaint are barred by the exclusivity provisions of the ... Act.” Williams argues, however, that The Salvation Army was required to plead the exclusive-remedy defense with particularity. Williams contends, as he did before the trial court, that The Salvation Army insufficiently pleaded that defense by failing to plead it with particularity, and, consequently, argues Williams, the defense was waived.

In support of his argument that the exclusive-remedy defense must be pleaded with particularity, Williams cites cases concerning the affirmative defense of estoppel. Our supreme court has stated that estoppel must be pleaded with particularity. RLI Ins. Co. v. MLK Ave. Redevelopment Corp., 925 So.2d 914, 925–26 (Ala.2005); Water Works & Sewer Bd. of Wetumpka v. City of Wetumpka, 773 So.2d 466, 469 (Ala.2000); Ex parte Luverne Geriatric Ctr., Inc., 480 So.2d 562, 568 (Ala.1985); and Kimbrell v. City of Bessemer, 380 So.2d 838, 839 (Ala.1980). Additionally, all averments of fraud, including an affirmative defense of fraud, must be pleaded with particularity. Rule 9(b), Ala. R. Civ. P.; and Patterson v. Liberty Nat'l Life Ins. Co., 903 So.2d 769, 782–83 (Ala.2004). However, estoppel and fraud defenses notwithstanding, Rule 8(c) simply requires that affirmative defenses must be “affirmatively set forth” in a responsive pleading....