Twilley v. Daubert Coated Products, Inc.

• Citation: 536 So.2d 1364
• Parties: 3 IER Cases 1775, 4 IER Cases 731 Marvin TWILLEY v. DAUBERT COATED PRODUCTS, INC. DAUBERT COATED PRODUCTS, INC. v. Marvin TWILLEY. 86-1503, 86-1554.
• Decision Date: 30 September 1988
• Court: Supreme Court of Alabama

Page 1364

536 So.2d 1364

3 IER Cases 1775, 4 IER Cases 731

Marvin TWILLEY v. DAUBERT COATED PRODUCTS, INC.

DAUBERT COATED PRODUCTS, INC. v. Marvin TWILLEY.

86-1503, 86-1554.

Supreme Court of Alabama.

Sept. 30, 1988.

Rehearing Denied Dec. 16, 1988.

Charles F. Norton, Jr., of Falkenberry & Whatley, Birmingham, for appellant/cross-appellee.

John W. Clark, Jr., and Larry Bradford of Clark & Scott, Birmingham, for appellee/cross-appellant.

MADDOX, Justice.

This case involves the interpretation of the retaliatory termination section of Alabama's Workman's Compensation Act, Ala.Code "No employee shall be terminated by an employer solely because the employee has instituted or maintained any action against the employer to recover worker's compensation benefits under this chapter...."

1975 § 25-5-11.1, which provides in pertinent part as follows:

On November 7, 1984, Marvin Twilley sustained an injury to his back while working for Daubert Coated Products, Inc. He filed a claim for worker's compensation benefits, and he received total temporary worker's compensation benefits until July 23, 1985. On August 29, 1985, Daubert and Sentry Insurance Company, the worker's compensation carrier, instituted this action, seeking a declaration that Twilley was "not entitled to any further or additional compensation benefits" as compensation for his injury. Twilley counterclaimed, seeking further benefits and alleging: "On or about July 15, 1985, Twilley attempted to return to work with Daubert; however, Daubert and Sentry constructively terminated Twilley's employment in retaliation for Twilley having initiated an action to recover worker's compensation benefits." He claimed he was wrongfully discharged and asked for both compensatory and punitive damages.

Upon agreement of the parties, the claims relating to worker's compensation benefits were dismissed, and the only claim upon which trial proceeded was Twilley's claim for retaliatory termination. The trial judge had previously granted Sentry's motion for summary judgment on the retaliatory discharge claim.

The case was tried before a jury, the trial commencing on June 9, 1987.

At the trial, Twilley presented evidence that he claimed showed that he was willing and able to return to work on July 15, 1985, and that Daubert "constructively terminated" him by refusing to allow him to return to work.

Daubert presented evidence that showed that Twilley was still receiving worker's compensation benefits on July 15, 1985, and that the purpose of the July 15th meeting was to discuss Twilley's return to work in light of his recent evaluation by a doctor, who had seen him at the request of the compensation carrier.

Daubert also presented evidence that showed that its policy on July 15, 1985, was that an employee could not return to work without a medical release that did not contain any restrictions, and that Twilley did not meet this criterion. Daubert also presented evidence that Twilley was treated as an employee by it after the July 15th meeting.

As can be seen, the evidence was conflicting on whether Twilley was actually "terminated," within the meaning of § 25-5-11.1. Twilley contends, of course, that he only had to show he was "constructively terminated."

The events that transpired are, to say the least, unusual. From a review of the record, it appears to us that the jury, during its deliberations, asked the Court to instruct them again on what constituted "constructive termination". They then returned a general verdict in favor of the plaintiff for $26,000, but there is a sharp dispute between the parties as to whether the trial court actually accepted this verdict.

The jury had returned to the courtroom and asked the judge to instruct them again on "constructive termination." When they retired to the jury room, the following occurred, according to the record:

"(Jury retires back to the jury room, 11:13 a.m.)

"MR. CLARK: I want this on the record.

"THE COURT: I've submitted two interrogatories to the jury. The first one being, 'Do you find that the plaintiff was terminated?' and the jury has answered the question, 'Yes, constructively terminated.' And the second being--the second interrogatory being, 'If yes, was that termination solely because the plaintiff instituted or maintained an action against his employer to recover workmen's compensation benefits?' The answer to that question being, 'No, there were other contributing factors according to the evidence presented.' It's dated "And along with that, they returned their previous question. And they had--they had a question. By the way, I don't know whether y'all know this or not. I meant to tell you.

June 12, 1987. And its signed by L.W. Smith, the foreman.

"They had earlier asked ... a question about constructive termination. I have brought them back and answered their question. And then they sent back No. 2, 'Why is it compulsory for the jury to answer those questions since the decision has been rendered?' And I sent Eric back with a note because I wanted them to answer--because I required that the questions be answered, the interrogatories be answered.

"So they sent back their note with those two questions on it and a verdict form of $26,000.

"What I'll do is just let them make a report and let them go is what I'm going to do.

"I can't--I have to enter a judgment for the defendant notwithstanding the verdict under the circumstances. That's what I'm caught with. The--that's what I'm going to do.

"MR. NORTON: Let me object to the use of the interrogatories without any--let me collect my thoughts.

"THE COURT: Yeah, go ahead and think about it.

"MR. NORTON: Your Honor, I object to the use of these interrogatories since in the jury charge conference, it was my understanding that you were not going to use special interrogatories, and to use those interrogatories only after the verdict had been rendered.

"You know, in order to cure any defects, you've obviously created an appealable issue no matter how it goes.

"The jury has rendered a verdict that essentially states that the motivating reason was this action that the plaintiff took. I would request at least they be allowed to have some sort of modifying instructions so that they understand the importance of what has been asked to them. Solely means nothing more than the motivating reason. They would have done nothing other than to say that there [was] other evidence presented, obviously.

"It was a dispute, but they made their decision.

"THE COURT: Well, yeah, I think they did too. And I'm going to do what I said I was going to do.

"MR. NORTON: It's going to go up anyway.

"THE COURT: It's a very frustrating case. Well, it ought to go up, you know. You need some answers.

"Bring them on back and line them up at the rail, Eric.

"(Jury lined up against the rail, 12:09 p.m.)

"THE COURT: Okay. Mr. Smith, I understand that you're the foreperson of the jury; is that correct?

"JUROR SMITH: Yes, sir.

"THE COURT: And you've reached a verdict. And also, I sent back to you a couple of what we call interrogatories which you've answered.

"So would you read to us, please, your verdict, and the questions and answers to those two interrogatories.

"JUROR SMITH: The verdict first?

"THE COURT: Either way. That's fine.

"JUROR SMITH: I'll read this one here first.

"THE COURT: All right, sir.

"JUROR SMITH: The question, 'Do you find that the plaintiff was terminated. Yes, constructively terminated.'

" 'If yes, was that termination solely because the plaintiff instituted or maintained an action against his employer to recover worker's compensation benefits?'

"Our answer, 'No, there were other contributing factors according to the evidence presented.'

"THE COURT: All right, sir. Now your verdict, please, sir.

"JUROR SMITH: The verdict of Twilley against Daubert Coated.

" 'We, the jury, find for the plaintiff against the defendant and assess the "THE COURT: All right, sir. Now, Mr. Holt, I'm going to just sort of start with you and go down the line, and, please, consider that I'm asking each of you this question as I go down the line. And the question is going to be, is this your verdict? And what I'm looking for really is an answer to three things. One, is your answer to the interrogatories what your foreperson has indicated to me, and then is the money verdict your verdict also?

plaintiff's damages in the sum of $26,000.'

"So, I'm, in effect, asking you to tell me yes or no is this your verdict in the sense of the three things?

"So starting with you, please sir, is this your verdict?

"(All jurors polled indicated in the affirmative.)"

Twilley filed a motion to strike the interrogatories that the trial judge had propounded to the jury, and the trial court granted his motion, and entered the following order:

"The court was called upon to consider this morning a motion by Marvin Twilley, characterized in the trial of this case as plaintiff, to strike and exclude interrogatories and jury's answers thereto and also to reconsider this court's order granting judgment notwithstanding the verdict, in which the court entered a judgment in behalf of Daubert Coated Products, Inc., styled as defendant.

"After hearing argument from counsel, the court is of the opinion that the Motion to Strike and Exclude Interrogatories and Jury's Answers thereto should be and [it] hereby is granted.

"The court's earlier order granting judgment for defendant, Daubert, notwithstanding the jury's verdict for plaintiff, Marvin Twilley, not having been based upon the jury's answers to the interrogatories propounded them, but rather on the court's conviction that it should have granted defendant's motion for directed verdict, the motion for reconsideration is hereby denied.

"DONE and ORDERED this the 31st day of July, 1987."

Our standard of review of a JNOV is well settled. A motion for JNOV should be denied if there is any conflict in the evidence for the jury to resolve, and the existence of such a...