Hubbard v. Liberty Mut. Ins. Co.
| Decision Date | 15 May 1992 |
| Parties | Tommy HUBBARD and Mary Hubbard v. LIBERTY MUTUAL INSURANCE COMPANY and The Home Insurance Company. Tommy HUBBARD and Mary Hubbard v. Wade ROE, et al. 1901915, 1910220. |
| Court | Alabama Supreme Court |
Jack Drake of Drake and Pierce, Tuscaloosa, and Bruce J. McKee and Scott A. Powell of Hare, Wynn, Newell & Newton, Birmingham, for appellants.
George M. Van Tassell, Jr. and Robert H. Sprain, Jr. of Sadler, Sullivan, Herring & Sharp, P.C., Birmingham, for appellee Liberty Mut. Ins. Co.
Clarence L. McDorman and Phillip Ted Colquett of Yearout, Myers & Traylor, Birmingham, for appellee Home Ins. Co.
Jasper P. Juliano and David A. Lee of Parsons, Lee & Juliano, P.C., Birmingham, and Wilbor J. Hust, Jr. of Zeanah, Hust, Summerford, Davis & Frazier, Tuscaloosa, for appellees Wade Roe, George Miljus, Edward Gomes, Tom McLaughlin, Steven Fair and David Small.
The issue in this case is whether the plaintiffs' third-party claims, filed pursuant to Ala.Code 1975, § 25-5-11(b), are barred by the two-year statute of limitations set forth in § 6-2-38(g). 1
Tommy Hubbard was employed by Atrax-Newcarb, Inc., in Tuscaloosa County, working on wet grinder machines used to polish the exterior of tungsten-cobalt tools. His last day of work, hence his last day of exposure was August 21, 1987. Shortly thereafter, on September 1, 1987, he was diagnosed with "interstitial lung disease" (hard metals disease) caused by his exposure to tungsten carbide. Hubbard filed for and received worker's compensation benefits from Atrax, receiving them as late as September 12, 1988.
On August 30, 1989, more than two years after the date of his last exposure, Hubbard and his wife, pursuant to the provisions of § 25-5-11, sued Atrax supervisory co-employees Wade Roe, George Miljus, Edward Gomes, Steven Fair, David Small, and Tom McLaughlin, and they also sued Home Insurance Company and Liberty Mutual Insurance Company. In their complaint against the co-employee defendants, the Hubbards claimed that those defendants willfully and intentionally failed to install various safety devices on the equipment being operated by Hubbard and that this conduct on their part proximately caused his injuries. In their suit against the compensation carriers, they claimed that each carrier negligently, willfully, and intentionally failed to require Atrax and the other defendants to take steps necessary to protect the worker from cobalt exposure, including, but not limited to, taking dust reduction measures, providing protective clothing, and providing ventilating devices and warnings.
Each of the defendants filed motions for a summary judgment, asserting that the two-year statutory period of limitations had run. In granting each of the motions for summary judgment, the trial judge did not specifically state upon what ground he granted the motion. On this appeal, we will address only what the appellants describe in their brief as the primary issue: "Is time for filing a third-party suit pursuant to Ala.Code § 25-5-11 (1975) tolled or affected by compensation payments made to the injured worker (plaintiff), as such payments are referenced in Ala.Code 1975, § 25-5-117?"
We answer the question posed by the appellants in the negative, for the reasons we will set out in this opinion.
The Hubbards filed a claim against the defendants pursuant to the provisions of § 25-5-11(b), which states, in part, the following:
"If personal injury or death to any employee results from the willful conduct, as defined in subsection (c) herein, of any officer, director, agent, servant or employee of the same employer or any worker's compensation insurance carrier of the employer ... responsible for servicing and payment of workers' compensation claims for the employer ..., the employee shall have a cause of action against such person, workers' compensation carrier or labor union."
It is undisputed that this suit was filed more than two years after Tommy Hubbard was last exposed to the alleged injury-causing mist and discovered his injury and its cause. However, the Hubbards did file their suit less than one year after Hubbard received his last workman's compensation payment. The Hubbards argue that their suit was timely filed, because they say, the running of the two-year statutory period of limitations is tolled during the time a worker is receiving worker compensation benefits, and they argue that the provisions of § 25-5-117, stating that limitations shall not take effect until one year from the time of making the last compensation payments, are applicable. 2
Section 25-5-117 states in pertinent part:
The defendants, on the other hand, argue that the applicable statute of limitations is § 6-2-38(g), which states that "[a]ny action brought under section 25-5-11(b) must be brought within two years of such injury or death." Typical of the defendants' arguments is one made by Liberty Mutual in its brief--that "[t]he Alabama Legislature, as evidenced by the clear wording of § 6-2-38(g), intended third-party tort suits filed under § 25-5-11 to be brought within two years from the date of injury or death."
We agree with the defendants that the two-year statute of limitations, as set out specifically in § 6-2-38(g), is applicable to these third-party suits authorized under the provisions of the Worker's Compensation Act.
This Court has held that a claim filed pursuant to § 25-5-11, as these claims were, is a tort action for damage, and...
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