Fireman's Fund American Ins. Co. v. Coleman

Decision Date08 August 1980
Docket NumberNos. 78-365-78-370 and 78-388-78-393,s. 78-365-78-370 and 78-388-78-393
PartiesFIREMAN'S FUND AMERICAN INSURANCE COMPANY, a corporation, et al. v. John F. COLEMAN et al.
CourtAlabama Supreme Court

L. Merrill Shirley, Elba, Harry Cole & John M. Milling, Jr. of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, Huey D. McInish and Alan C. Livingston of Lee & McInish, Dothan, for appellants.

Gareth A. Lindsey, Elba, W. Sidney Fuller, Andalusia, James W. Kelly, Geneva, Frank J. Tipler, Jr., Andalusia, for appellees.

Francis H. Hare, Jr., Birmingham, for amicus curiae.

FAULKNER, Justice.

These appeals are from consolidated cases brought under the third party provisions of the Workmen's Compensation Act (§ 25-5-11, Code 1975) against four co-employees and Fireman's Fund. From adverse judgments below, each of the defendants appeals.

John Coleman, Raymond Chamblee, Jerome Flowers, Charles Smith, Wiley Williams, and Harold Weeks, Jr., plaintiffs, were employed by Dorsey Trailer, Inc., a corporation that manufactures flatbed and van type truck trailers. On July 15, 1977, while they were installing 24 -wide fiberglass scuff bands along the base of the interior walls of an unventilated van type trailer, using a highly flammable solvent-based glue, sparks from either the screwdrivers or the electric junction box into which the screwdrivers were plugged, came in contact with fumes from the glue, causing a flash fire within the trailer.

Plaintiffs and their wives filed individual suits against Fireman's Fund, the compensation carrier which was also the liability carrier of Dorsey, alleging negligent and/or wanton plant inspection; and against David Logan, a vice-president of Dorsey; Shelby Bryan, Line Supervisor; Mark Holt, Director of Personnel and Labor Relations; and George Kennedy, General Supervisor over Line Supervisors; alleging negligent failure to supervise, and to correct the operation of the adhesive application process. The cases were tried to a judge sitting without a jury. The judge, on January 25, 1979, entered judgments in favor of each plaintiff, and against all of the defendants as follows:

                Plaintiff               Judgment
                ---------               --------
                1.  John Coleman         $1,850,000.00
                2.  Mrs.John Coleman        150,000.00
                3.  Raymond Chamblee      1,600,000.00
                4.  Ellowayne Chamblee      150,000.00
                5.  Jerome Flowers        2,000,000.00
                6.  Wiley Williams          700,000.00
                7.  Wiley Williams, as
                     Administrator of
                     the Estate of
                     Dianne Williams        50,000.00
                8.  Charles Smith         1,000,000.00
                9.  Harold Weeks             75,000.00
                                Total:  $7,575,000.00

Appellants filed motions for new trial and motions for post-judgment discovery. They requested a continuance to complete post-judgment discovery and to make a showing of what they expected to prove. Fireman's Fund and Logan, Kennedy, Bryan, and Holt appeal from denials of their motions.

The principal issues presented for review are these:

1. Should Grantham v. Denke, 359 So.2d 785 (Ala.1978), be overruled? If it is not overruled, should it be extended to corporate officers and supervisory employees?

2. Should Grantham be extended to invalidate the statutory immunity granted to compensation carriers under § 25-5-11, Code of Alabama, 1975?

3. Is the adjudication of liability supported by sufficient evidence when tested against appropriate legal standards of liability?

4. Were the damages awarded excessive?


This Court held in Grantham that the statutory immunity for co-employeesviolated Next, the appellants argue that Grantham did not decide the question of immunity of supervisory employees and corporate officers. To that narrow statement, the answer is no, because the question of an officer's immunity was not raised. See Jones v. Watkins, 364 So.2d 1144 (Ala.1978). Moreover, that question was not raised in Jones. The dictum in Jones indicates that an officer's liability may depend on his function at the time of injury to an employee. We now decide that the immunity test under § 13 of the Alabama Constitution is equally applicable to all parties other than the employer (§ 25-5-11(a), Code of Alabama 1975); and, therefore, in the context of the instant case, we reaffirm Grantham and extend its holding as to the immunity provisions of § 25-5-11 as it relates to each of the parties defendant named herein, including the workmen's compensation insurance carrier. Cf. United States Fire Insurance Co. v. McCormick, 286 Ala. 521, 243 So.2d 367 (1970); Queen City Furniture Company v. Hinds, 274 Ala. 584, 150 So.2d 756 (1963).

§ 13, Constitution of Alabama, 1901, and was therefore void. The reasoning in Grantham does not need to be repeated here. Grantham was followed in Pipkin v. Southern Electrical & Pipefitting Co., Inc., 358 So.2d 1015 (Ala.1978), and Gardner v. Bethea, 364 So.2d 308 (Ala.1978).


We now determine the liability of the individual defendants David Logan, Mark Holt, George Kennedy, and Shelby Bryan.

David Logan was Vice-President in charge of manufacturing at Dorsey Trailers and was the immediate superior and supervisor of both Mark Holt and George Kennedy. He was responsible for personnel functions, industrial engineering functions, all manufacturing facilities and maintenance and production control scheduling. He also, as overall supervisor of the plant, was involved in the organizational aspects of providing for the safety of the men in the plant. Logan personally made the necessary safety rules and regulations for the workmen. Thus, the employer, Dorsey, had delegated its duty of providing a safe work place for its employees to its employee David Logan as one of his personal job duties.

Mark Holt was Director of Personnel and Labor Relations for Dorsey Trailers. His job duties included serving as supervisor in charge of plant safety for Dorsey. He assisted in coordinating the plant safety program, saw that safety meetings and safety inspections were held, investigated safety problems, and kept safety records. Holt, an employee at Dorsey, had also been delegated a portion of Dorsey Trailers', the employer's, duty to furnish a reasonably safe work place and suitable appliances and materials with which to work.

George Kennedy served as General Supervisor or Foreman over the line supervisors and was directly responsible to David Logan. He was generally responsible for getting the trailers out on schedule and had between 120 and 150 men, including seven supervisors, working under him. He testified at trial that one of his prime considerations was the safety of the men. On the job, Kennedy was told by his boss Logan what was safe after Logan developed the safety rules and then Kennedy advised the men what was and what was not safe and explained safety procedures and precautions. As a part of his employment responsibilities, Kennedy had also been delegated a portion of Dorsey's non-delegable duty to provide his co-employees with a reasonably safe work environment.

Shelby Bryan was the Line Supervisor in charge of Department 78, the area where the injured plaintiffs, Coleman, Chamblee, Flowers, Smith, Williams and Weeks worked. He was their immediate supervisor and in turn was under George Kennedy in Dorsey's supervisory hierarchy. Bryan assigned the men to the various jobs that needed to be done within the department, and saw that the work was performed according to the instructions of his supervisors, Logan and Kennedy, using the materials and tools supplied them by Dorsey. He was in charge of lining-out the van type Having determined that Logan, Holt, and Kennedy had as an element of their employment duties the duty to assure a reasonably safe work place for their co-employees, we examine the record to determine if this duty was breached by personal fault. David Logan testified at trial that he personally knew the solvent based glue, either DAP or Scotch Grip, was highly flammable. He was aware that it was dangerous for such glue to be used in the trailers as the injured men were using it because the top was off the gallon containers so that the fumes could escape and collect in the unventilated trailer, yet he did not post or have posted any signs warning of this danger. He testified the safest way to have installed the scuff bands using both the Scotch Grip glue and the screws would have been to let the glue fumes clear and then use the electric screwdriver, the only type screwdriver used by Dorsey.

truck trailers, including the application of the scuff bands using a solvent based adhesive and screws. Having reviewed the record we find no indication that Dorsey Trailers delegated to Bryan any portion of its duty to provide a reasonably safe place of employment nor did Bryan voluntarily assume any such duty.

Some two months before the fire Logan gave personal instructions to George Kennedy, the general foreman, and to two or three production people (none of them among the injured men) on the installation of the scuff bands in a trailer using the glue although not with the added screws. At that time the tops were off the glue cans. He told these people that the glue was dangerous but at trial could not recall anything he might have said relating to any particular things that might be done with reference to its use to minimize the danger. Logan also got the injured men the paint rollers they used to apply the glue.

Although he could not order new building materials, Logan could make recommendations. As a result of reading an article in trade literature, he suggested the testing of an emulsion based glue, the non-flammable Borden's brand, to replace the solvent based glue. The Borden's glue was approved by Dorsey's Research and Development Department two weeks prior to the fire and was on order at the time of the fire. Logan testified that he did not stop the finishing of the trailers by applying the scuff bands...

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