Keshock v. Metabowerke GMBH (Ex parte Austal USA, LLC)

• Decision Date: 03 March 2017
• Docket Number: 1151244,1151138
• Citation: 233 So.3d 975
• Parties: EX PARTE AUSTAL USA, LLC (In re Michael Keshock et al. v. Metabowerke GMBH et al.) Ex parte Austal USA, LLC (In re Michael Keshock et al. v. Metabowerke GMBH et al.)
• Court: Alabama Supreme Court

233 So.3d 975

EX PARTE AUSTAL USA, LLC

(In re Michael Keshock et al.

v.Metabowerke GMBH et al.)

Ex parte Austal USA, LLC

(In re Michael Keshock et al.

v.Metabowerke GMBH et al.)

1151138

1151244

Supreme Court of Alabama.

March 3, 2017

Rehearing Denied April 21, 2017

John C. Neiman, Jr., and Prim F. Escalona of Maynard, Cooper & Gale, P.C., Birmingham; and Brian P. McCarthy and Anne Laurie McClurkin of McDowell Knight Roedder & Sledge, LLC, Mobile, for petitioner.

David G. Wirtes, Jr., Brian Duncan, Jr., and William E. Bonner of Cunningham Bounds, LLC, Mobile, for respondents.

Ed R. Haden and Michael Taunton of Balch & Bingham LLP, for amici curiae Business Council of Alabama and the Mobile Area Chamber of Commerce, in support of the petitioner.

C. Britton Bonner of Adams & Reese LLP, Mobile, for amicus curiae Shipbuilders' Council of Alabama, in support of the petitioner.

Marc James Ayers and Stephen C. Parsley of Bradley Arant Boult Cummings LLP, Birmingham; Allen M. Estes of Balch & Bingham, LLP, Birmingham; and Mark D. Hess of Hand Arendall, LLC, Birmingham, for amicus curiae Alabama Defense Lawyers Association, in support of the petitioner.

MAIN, Justice.

Austal USA, LLC ("Austal"), filed two petitions for a writ of mandamus directing the Mobile Circuit Court to dismiss certain claims asserted against it by plaintiffs Michael Keshock, Martin Osborn, Richard Fitzgerald, Tyrone Lucas, Riley Bodiford, Tommie Brandon, Justin Reed, and William White (hereinafter referred to collectively as "the plaintiffs"). We deny the petitions.

I. Facts and Procedural History

Austal operates a shipyard in Mobile that builds naval vessels. Each of the plaintiffs is an employee of Austal who claims to have been injured while working in the course of his or her employment. Specifically, each plaintiff claims to have been injured by a tool known as a "Miller saw."

The plaintiffs filed this action against Austal and three other companies not parties to these petitions.¹ The plaintiffs' third amendment complaint asserted two counts against Austal. Count I asserted a tort-of-outrage claim against Austal. Austal filed a Rule 12(b)(6), Ala. R. Civ. P., motion to dismiss the tort-of-outrage claim. The trial court granted the motion to dismiss count I and entered an order dismissing that claim with prejudice; the tort-of-outrage claim is not now before us.

Count VII of the third amended complaint alleged a claim of "intentional misconduct," specifically alleging that Austal had "intentionally provided Plaintiff[s] with a dangerous and defective Miller saw with the specific intent that it would cause injury to Plaintiffs." Austal filed a separate Rule 12(b)(6) motion seeking to dismiss count VII. Austal argued that it was immune from the claim asserted in count VII by virtue of the exclusivity provisions of the Longshore & Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq. ("the LHWCA"), and the Alabama Workers' Compensation Act, § 25–5–1 et seq., Ala. Code 1975. On June 16, 2016, the trial court entered an order denying Austal's motion to dismiss count VII. On June 27, 2016, Austal moved the trial court to vacate its order or to certify its order for a permissive appeal under Rule 5, Ala. R. App. P.

On June 28, 2016, the plaintiffs filed a fourth amended complaint. The plaintiffs' fourth amended complaint restated the count VII "intentional-misconduct" claim and added five more counts, each alleging that Austal intentionally injured them. Count VIII asserted a claim of assault and battery against Austal. Count XII asserted a claim of fraud and alleged that Austal "intentionally made false statements regarding the safety of the Miller Saw" and that those statements were made "with the conscious and deliberate intent to injure its workmen, including plaintiffs, with the Miller Saw so that it could build its ships without having to incur the costs associated with finding a safer alternative method to perform the work." Count XIII alleged that Austal fraudulently "suppressed, concealed, hid or withheld important facts from the Plaintiffs regarding the known safety hazards associated with the Miller Saw ... and that Austal knew the tool was unsafe and had made the conscious and deliberate decision to intentionally injure its workmen with the tool so that it could build its ships without having to incur the costs associated with finding a safer alternative method to perform the work." Count XIV alleged that, after the injured plaintiffs returned to work, Austal "intentionally made false statements regarding the safety of the Miller saw with a conscious and deliberate intent directed to the purpose of inflicting severe emotional distress on the Plaintiffs by inducing them to use the same Miller Saws in their work that had previously caused serious injury to Plaintiffs." Count XV, a fraudulent-suppression claim, similarly alleged that Austal "intentionally suppressed, concealed, hid or withheld important facts from the Plaintiffs regarding the safety of the Miller saw with a conscious and deliberate intent directed to the purpose of inflicting severe emotional distress on the Plaintiffs by inducing them to use the same Miller Saws in their work that had previously caused serious injury to Plaintiffs."

On July 18, 2016, Austal moved to dismiss counts VIII, XII, XIII, XIV, and XV of the fourth amended complaint.² Again, Austal contended that the claims were barred by the exclusivity provisions of the Alabama Workers' Compensation Act and/or the LHWCA.

On July 19, 2016, the trial court granted Austal's motion to certify for permissive appeal the question whether count VII of the third amended complaint stated a claim upon which relief could be granted. On August 2, 2016, Austal filed with this Court a petition for permission to appeal or, in the alternative, for a writ of mandamus (no. 1151138).

On August 30, 2016, the trial court denied Austal's motion to dismiss counts VIII, XII, XIII, XIV, and XV, but also certified for immediate appeal the question whether those counts asserted claims upon which relief could be granted. On September 8, 2016, Austal filed with this Court a second petition for permission to appeal or, in the alternative, for a writ of mandamus (no 1151244). This Court consolidated both petitions. We elected to treat the two petitions for permissive appeal as petitions for the writ of mandamus and ordered answers and briefs.

II. Standard of Review

" ‘ " ‘The writ of mandamus is a drastic and extraordinary writ, to 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) ; see also Ex parte Ziglar, 669 So.2d 133, 134 (Ala. 1995).’ Ex parte Carter, [807 So.2d 534,] 536 [ (Ala. 2001) ]."

" ‘ Ex parte McWilliams, 812 So.2d 318, 321 (Ala. 2001).

" ‘ "Subject to certain narrow exceptions ..., we have held that, because an ‘adequate remedy’ exists by way of an appeal, the denial of a motion to dismiss or a motion for a summary judgment is not reviewable by petition for writ of mandamus." Ex parte Liberty Nat'l Life Ins. Co., 825 So.2d 758, 761–62 (Ala. 2002).'

" Ex parte Kohlberg Kravis Roberts & Co., 78 So.3d 959, 965–66 (Ala. 2011)."

Ex parte MERSCORP, Inc., 141 So.3d 984, 990 (Ala. 2013). One of the exceptions to the general rule prohibiting mandamus review of the denial of a motion to dismiss is where the motion to dismiss asserts a defense of immunity based on the exclusivity provisions of the Alabama Workers' Compensation Act. Ex parte Rock Wool Mfg. Co., 202 So.3d 669, 671–72 (Ala. 2016). See also Ex parte McCartney Constr. Co., 720 So.2d 910 (Ala. 1998).

" ‘ "In reviewing the denial of a motion to dismiss by means of a mandamus petition, we do not change our standard of review ...." ’ Drummond Co. v. Alabama Dep't of Transp., 937 So.2d 56, 57 (Ala. 2006) (quoting Ex parte Haralson, 853 So.2d 928, 931 (Ala. 2003) ).

" ‘In Newman v. Savas, 878 So.2d 1147 (Ala. 2003), this Court set out the standard of review of a ruling on a motion to dismiss for lack of subject-matter jurisdiction:

" ‘ "A ruling on a motion to dismiss is reviewed without a presumption of correctness. Nance v. Matthews, 622 So.2d 297, 299 (Ala. 1993). This Court must accept the allegations of the complaint as true. Creola Land Dev., Inc. v. Bentbrooke Housing, L.L.C., 828 So.2d 285, 288 (Ala. 2002). Furthermore, in reviewing a ruling on a motion to dismiss we will not consider whether the pleader will ultimately prevail but whether the pleader may possibly prevail. Nance, 622 So.2d at 299."

" ‘ 878 So. 2d at 1148–49.’" Pontius v. State Farm Mut. Auto. Ins. Co., 915 So.2d 557, 563 (Ala. 2005). We construe all doubts regarding the sufficiency of the complaint in favor of the plaintiff. Drummond Co., 937 So.2d at 58."

Ex parte Alabama Dep't of Transp., 978 So.2d 17, 21 (Ala. 2007).

III. Analysis

There is no dispute that each of the plaintiffs was engaged in maritime employment sufficient to qualify for coverage under the LHWCA. Austal argues that, because the plaintiffs were injured within the line and scope of their maritime employment, Austal enjoys immunity from tort claims by virtue of the exclusivity provision of the LHWCA.³ In Rodriguez–Flores v. U.S. Coatings, Inc., 133 So.3d 874 (Ala. 2013), we described the exclusivity provision of the LHWCA:

"Section 904 of the LHWCA provides, in part, that ‘[e]very employer shall be liable for and shall secure the payment to his employees of the compensation payable under sections 907, 908, and 909 of this title’ and that such compensation ‘shall be payable irrespective of fault as a cause for the injury.’ Section 905(a) of the LHWCA provides, in part, that ‘[t]he liability of an employer prescribed in section 904 of this title shall be exclusive and in place

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