Mercy Logging, LLC v. Odom

• Decision Date: 27 July 2012
• Docket Number: 2101061.
• Citation: 104 So.3d 908
• Parties: MERCY LOGGING, LLC v. Johnnie L. ODOM.
• Court: Alabama Court of Civil Appeals

104 So.3d 908

MERCY LOGGING, LLC

v.Johnnie L. ODOM.

2101061.

Court of Civil Appeals of Alabama.

July 27, 2012.

Steven T. McMeekin of Wainwright, Pope & McMeekin, P.C., Birmingham, for appellant.

William R. Stokes, Jr., of Stokes & Stokes, P.C., Brewton, for appellee.

PITTMAN, Judge.

In December 2009, Johnnie L. Odom filed a complaint seeking benefits under the Alabama Workers' Compensation Act, § 25–5–1 et seq., Ala.Code 1975 (“the Act”), on account of injuries he suffered from rattlesnake bites on his hands, which injuries, he alleged, arose out of and in the course of his employment with Mercy Logging, LLC (“Mercy”), and rendered him permanently and totally disabled. Odom further alleged that Mercy had paid him no compensation benefits and none of his medical expenses, which expenses totaled over $300,000. Mercy answered the complaint and denied that Odom's injuries were compensable under the Act.

Following a bench trial, the trial court entered a judgment determining that Odom's injuries were compensable; finding that Odom was permanently and totally disabled and awarding him benefits under the Act; and finding that Odom had incurred reasonable and necessary medical expenses of $310,994.57, for which Mercy was liable. The trial court further determined that the Alabama Medicaid Agency had paid a portion of Odom's medical expensesand was entitled to reimbursement. The trial court awarded Odom's counsel an attorney's fee of 15% of Odom's accrued disability benefits and future disability benefits reduced to present value. It also awarded Odom's counsel an additional attorney's fee based on the “common-fund” theory. The trial court concluded that Odom's counsel had created a fund consisting of the unpaid medical expenses that were owed to Odom's medical providers, less the deduction for the portion of those expenses that had been paid by the Alabama Medicaid Agency, from which fund Odom's counsel was entitled to an attorney's fee of 40%.

Mercy appeals, arguing (1) that the trial court erred in concluding that Odom's injuries arose out of and in the course of his employment and (2) that the additional attorney's fee awarded to Odom's counsel was not authorized by the Act or by the common-fund theory.

Factual Background

At the time of the trial of this case in May 2011, Odom was a 46–year–old high-school graduate who had been working in the logging business for more than 20 years. He began working for Mercy's predecessor, Perritt Logging, in February 2009. On the date of his injury, Odom was employed as a log-truck driver for Mercy; his duties included trimming, binding, and flagging loads and delivering the loads to timber and paper mills. On the morning of September 24, 2009, Odom and two other employees, Michael Raines and Riley Nelson, who were part of a logging crew under the supervision of crew foreman Aaron Perritt, the son of Mercy's owner, Winston Perritt, drove their personal vehicles and parked them at a service station in Brewton, where they were met by Aaron Perritt, who was driving the labor truck for Mercy. Perritt transported the logging crew in the labor truck to the job site where Mercy was cutting timber. The site was adjacent to a paved road in Monroe County, 59 miles from Brewton. The crew worked until 5:00 p.m. that day and then, at Perritt's instruction, returned to the labor truck for the ride back to Brewton, with Perritt driving the truck. Perritt drove north of the job site for a short distance to retrieve one of two “Trucks–Entering–Roadway” signs that had been placed on the road to warn traffic and then turned the vehicle around and drove south to retrieve the other sign. Two or three hundred yards beyond the point at which he had retrieved the second sign, Perritt saw a diamondback rattlesnake on the paved road in the northerly lane of traffic.

When Perritt saw the snake, he swerved the truck towards the snake in an attempt to run over it and kill it. When asked why he had intended to kill the snake, Perritt replied: “It's just [a logger's] nature to kill [snakes] because we feel they're a threat ... in the woods.” Odom agreed that snakes are an occupational hazard to loggers in the woods. Perritt stated that it had not been uncommon for him and his crew to encounter rattlesnakes in the woods, that he had killed 20 to 40 snakes while working, and that his father had kept a gun in his truck to shoot snakes. Perritt added that, several months earlier, when he had been driving a work crew away from a job site in the labor truck, he had stopped the truck so that one of the employees could kill a snake. Perritt stated that he had had a habit of running over snakes whenever he saw them on the road and that he had considered the snake he had seen in the road on September 24, 2009, particularly dangerous because it was in an area that was adjacent to (and its head was pointing in the direction of) the job site where he and his crew would be working the following day.

As Perritt veered the truck toward the snake to run over it, either Raines or Nelson called out: “Don't kill it; let's catch it.” Perritt then steered the truck away from the snake, stopped the truck on the side of the road a few feet past the snake, and turned off the ignition. When Perritt was asked why he had stopped the truck, he said: “I don't know. Just being a country boy, I guess; they said, ‘let's catch it.’ I mean, I wasn't going to put my hands on it, but....” When Perritt stopped the truck, all four men exited the truck, and, according to Odom, Nelson bent over the snake to catch it with his hands. Odom (who stated that his father had taught him how to catch snakes, that he had caught as many as 100 snakes in the past, and that he had never been bitten by a snake) testified that it had appeared to him that Nelson did not know how to catch a snake and was in danger of being bitten. Therefore, Odom said, he had instructed Nelson to “pin” the snake with a stick. Raines retrieved a forked stick and handed it to Odom, who placed the stick behind the snake's head. Perritt testified that, when he saw the snake strike at, or bite the stick, he told Odom not to catch the snake, but to “leave [the snake] alone” because it “was going to bite [Odom].” According to Perritt, Odom ignored the warning.¹ As Odom grasped the snake behind its head and dropped it into a bucket, he was repeatedly bitten on both hands. One of the crew members later measured the snake and determined that it was six feet, three inches long.

Perritt drove Odom to the hospital in Brewton and Odom was later airlifted to USA Medical Center in Mobile where he was hospitalized until November 3, 2009. Odom was in a coma for the first two weeks of his hospitalization. He remained in the intensive-care unit for 35 of the 40 days that he was in the hospital. He experienced, among other problems, a “frozen” shoulder and extensive and prolonged swelling of his hands and arms. After his discharge from the hospital, Odom participated in physical therapy at D.W. McMillan Memorial Hospital from January 15, 2010, until March 5, 2010. Before engaging in physical therapy, Odom had experienced no disabling pain in his neck or shoulders. During physical therapy, Odom complained of pain in his neck and upper back, and he experienced a popping in his neck. Odom also complained to his personal physician that physical therapy was causing him pain in his neck and upper back.

The trial court ultimately determined that Odom was permanently and totally disabled as a result of injuries to his hands, arms, shoulder, upper back, and neck. Because Mercy does not challenge on appeal the trial court's medical-causation or disability determinations, we have not set out the trial court's findings and conclusions with respect to those issues.

Standard of Review

Our review of this case is governed by the Act, which states, in pertinent part: “In reviewing the standard of proof ... and other legal issues, review by the Court of Civil Appeals shall be without a presumption of correctness.” Ala. Code 1975, § 25–5–81(e)(1). See also Ex parte Trinity Indus., Inc., 680 So.2d 262, 268 (Ala.1996). “In reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence.” Ala.Code 1975, § 25–5–81(e)(2). Substantial evidence is “ ‘evidence 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.’ ” Ex parte Trinity Indus., 680 So.2d at 269 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989), and citing § 12–21–12(d), Ala.Code 1975).

Discussion

For an injury to be compensable under the Act, the injury must be caused by “an accident arising out of and in the course of [the] employment.” § 25–5–51, Ala.Code 1975.

“Upon considering the meaning of the complete expression ‘arising out of and in the course of his employment,’ and of its separate component parts, it should be observed that while an accident arising out of an employment usually occurs in the course of it, such is not invariably true. Likewise, an accident which occurs in the course of an employment does not necessarily arise out of it. The words ‘arising out of’ involve the idea of causal relationship between the employment and the injury, while the term ‘in the course of’ relates more particularly to the time, place and circumstances under which the injury occurred. The phrases are not synonymous; where both are used conjunctively a double condition has been imposed, and both terms must be satisfied in order to bring a case within the act. 58 Am.Jur. 717. Generally, an injury arises out of an employment only when there is a causal connection between the injury and the conditions under which the work is required to be performed.”

Wooten v. Roden, 260 Ala. 606, 610, 71 So.2d 802, 805–06 (1954). We will address the second...