Phillips v. Unijax, Inc.

• Decision Date: 29 December 1978
• Docket Number: Civ. A. No. 77-407-P.
• Citation: 462 F. Supp. 942
• Parties: Jane Bartlett PHILLIPS, as Executrix of the Estate of Peter Richard Phillips, Deceased, etc., Plaintiff, v. UNIJAX, INC., et al., Defendant.
• Court: U.S. District Court — Southern District of Alabama

462 F. Supp. 942

Jane Bartlett PHILLIPS, as Executrix of the Estate of Peter Richard Phillips, Deceased, etc., Plaintiff, v. UNIJAX, INC., et al., Defendant.

Civ. A. No. 77-407-P.

United States District Court, S. D. Alabama, S. D.

December 29, 1978.

Richard Bounds, Mobile, Ala., for plaintiff.

James J. Duffy, Jr., E. L. McCafferty, III, Cooper C. Thurber and Mack B. Binion, Mobile, Ala., for defendant.

ORDER AND DECREE ON MOTIONS FOR SUMMARY JUDGMENT AND REMAND

PITTMAN, Chief Judge.

This action for wrongful death arises out of an automobile accident. In Counts One and Two, the plaintiffs seek damages from Unijax, Inc. for the alleged wantonness or negligence of Unijax's employee, the defendant Jerry B. Carner, which allegedly resulted in the death of plaintiffs' decedent. In Counts Three and Four, the plaintiffs have sued Carner alone on the same theories of wantonness and negligence. This action was commenced in the Circuit Court of Mobile County, Alabama, and removed, after severance of the claims against the two defendants, to this court pursuant to 28 U.S.C. § 1441. The defendant Unijax has moved for summary judgment on Counts One and Two. The defendant Carner has filed a motion to remand as to Counts Three and Four.

FINDINGS OF FACT

On April 9, 1974, the decedent, Peter Richard Phillips, and the defendant Carner were both employees of the defendant Unijax.

Phillips was a traveling salesman with most of his accounts in Mississippi. He worked irregular hours and his sole compensation consisted of commissions on sales he made to customers of Unijax. He did not receive travel pay.

Carner was operations manager for Unijax. His responsibilities included all facets of Unijax's local operations except sales. Carner was salaried, worked regular hours, and received reimbursement for his travel expenses.

Carner was not Phillips' supervisor.

On April 8, 1974, Phillips and Carner decided to travel to Pascagoula, Mississippi, the next day to call on one of Unijax's customers from whom Unijax had been experiencing difficulty obtaining payment for sales made by Phillips for Unijax. While in Pascagoula, Phillips was to call on other of his sales accounts.

Carner and Phillips had previously taken such trips together. On such occasions it was normal for them to travel in Phillips' automobile. On this occasion, however, Phillips' automobile was undergoing repairs and Carner agreed they would take Carner's automobile.

Pursuant to the above plan, on April 9, 1974, at about 8:15 a. m., Carner picked up Phillips at the latter's residence in Mobile and the two drove to Pascagoula.

In Pascagoula the two called on the troubling account as well as other regular customers of Phillips. Phillips made one new sale.

Carner and Phillips lunched in Pascagoula, Phillips having three or four martinis before lunch. Sometime between 1:00 and 1:30 p. m., the two started the drive back to Mobile. On the way back, Phillips consumed several drinks from a bottle of vodka.

On their arrival in Mobile, Phillips requested Carner to drive him to the garage which had been repairing his automobile—the automobile normally used by Phillips to call on customers.

Carner drove to the garage located in Prichard, a northern suburb of Mobile.

After stopping at the garage, the two drove back to Mobile, exited from Interstate Highway 65 onto Springhill Avenue, and traveled towards Phillips' residence.

The two had previously agreed to pick up some company equipment at Phillips' residence and return to work at the Unijax office. Carner had subsequently decided, however, that Phillips, because of the amount of alcohol he had consumed, should not return to the office that day. He had therefore planned to leave Phillips at home but had not communicated this unilateral decision to Phillips.

During the drive to Phillips' residence, Phillips requested Carner to stop at a service station on Springhill Avenue so Phillips could confer with persons there regarding the repairs being made to his automobile. Carner complied.

After Phillips conversed briefly with the service station personnel, he returned to Carner's automobile. They then proceeded to drive back onto Springhill Avenue.

While driving onto Springhill Avenue from the service station, according to Carner, he noticed another automobile coming toward him and about to collide with his automobile. To avoid the collision, Carner drastically accelerated his automobile. The sudden acceleration, along with other environmental conditions, caused Carner's automobile to flip over. Phillips, who had not put his seatbelt on after getting back into the automobile, was ejected and killed.

Following Phillips' death, plaintiff applied for and accepted Workmen's Compensation benefits from Unijax's Workmen's Compensation carrier.¹ Pursuant to such agreement she accepted benefits of $68.00 per week for a total of $11,932.00 as of September 26, 1977. In addition, Unijax paid plaintiff $1,000.00 in funeral benefits and paid $100.00 into the Second Injury Trust Fund of the State of Alabama.

Plaintiff has not repudiated her agreement to accept Workmen's Compensation payments nor sought to restore the status quo by returning the payments she received.

CONCLUSIONS OF LAW

Where the relationship of employer and employee exists in Alabama, an injury to the employee is presumably subject to the Alabama Workmen's Compensation Act (AWCA), Code of Alabama (1975), § 25-5-54; W. B. Davis & Son v. Ruple, 222 Ala. 52, 130 So. 772 (1930); De Arman v. Ingalls Iron Works Co., 258 Ala. 205, 61 So.2d 764 (1952). This rule is subject to certain definite exceptions. The AWCA does not automatically apply

"to domestic servants, to farm laborers whose employers have not filed an election to become subject to this chapter or to persons whose employment at the time of the injury is casual and not in the usual course of the trade, business, profession or occupation of the employer or to any employer who regularly employs less than three employees in any one business or to any municipality having a population of less than 2,000 according to the most recent federal decennial census or any school district."

Code of Alabama (1975), § 25-5-50.²

Except for those classes of employees disqualified by § 25-5-50, the AWCA "is an elective remedy ... substituted at the election of both employer and employee for other existing remedies . . .." Steele v. Aetna Casualty & Surety Company, 46 Ala.App. 705, 248 So.2d 745 (1971).³

In death damage cases, however, the AWCA is the exclusive remedy against the covered employer for "the death of any covered workman who is an employee of the same employer and whose injury or death is due to an accident while engaged in the service or business of the employer, the cause of which accident originates in the employment. . . ." Code of Alabama (1975), § 25-5-53. See, Slagle v. Reynolds Metals Company, 344 So.2d 1216 (Ala.1977); Patterson v. Sears-Roebuck & Co., 196 F.2d 947 (5th Cir. 1952). The rights and remedies granted by the AWCA exclude all other common law and statutory remedies of the employee and, inter alia, his dependents. Code of Alabama (1975), § 25-5-53. Among the rights granted the parties by the AWCA is "the right to settle all matters of compensation and all questions arising under the AWCA between themselves ...." Code of Alabama (1975), § 25-5-56.

The decedent Phillips was subject to the AWCA as his was not among the class of employments excluded from coverage by § 25-5-50. The plaintiffs were entitled to compensation for Phillips' death unless the accident causing the death did not "arise out of and in the course of", Code § 25-5-51, Phillips' employment or unless Unijax could assert one of the defenses enumerated in § 25-5-51.⁴ By settling with Unijax, the plaintiffs were relieved of the burden of proof on the issue of whether or not an employer-employee relationship existed between Phillips and Unijax. Moreover, the settlement precludes the plaintiffs from asserting in this action that the accident did not "arise out of and in the course of", Id., Phillips' employment. In National Cast Iron Pipe Co. v. Higginbotham, 216 Ala. 129, 132, 112 So. 734, 736 (1927), it is stated:

"It is further shown that plaintiff accepted compensation under the Act, paid him in many installments. He is precluded by this agreement from resorting to the other remedy, if such other remedy existed. ... The burden of proof that the injury arose out of and in the course of the employment was accepted by the plaintiff in his pleading, being a condition precedent to compensation in all cases. And, when acceded to by both parties, the claimant is bound by his election.

"If the facts be such that he may repudiate the agreement or partial settlement, he should restore the status quo by a return of the installment payments made and received by him under the terms of the Compensation Act. And, if such right of revocation exists, it is immaterial that such moneys were paid to the injured employee by the `insurance carrier.'" (Citations omitted). (Emphasis added).

Like the counts against Unijax, the case of Southern Railway Company v. McCamy, 270 Ala. 510, 120 So.2d 695 (1960), was an action for wrongful death brought pursuant to Code of Alabama (1975), § 6-5-410. There the court stated, 270 Ala. at 513, 120 So.2d 697:

"There is no question that Ruth McCamy, as administratrix of the estate of William P. McCamy, deceased, lacked the capacity to sue because she was receiving compensation under the Workmen's Compensation Act, and that act, § 25-5-53 excludes `all other rights and remedies of said employee, his personal representative,' and we have held that under such circumstances, the right of the administrator to sue under the homicide statute is withdrawn." (Citations omitted).

To the same effect is the case of Harris v. Louisville & N. R. Co., 237 Ala. 366, 369, 186 So. 771, 773:

"The common law right of action of an

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