Waters By and Through Alabama Forest Products Industry Workmen's Compensation Self-Insurer's Fund v. J.I. Case Co.

• Decision Date: 21 July 1989
• Docket Number: SELF-INSURER
• Citation: 548 So.2d 454
• Parties: Thomas Edison WATERS, By and Through the ALABAMA FOREST PRODUCTS INDUSTRY WORKMEN'S COMPENSATION'S FUND v. J.I. CASE COMPANY, et al. 88-233.
• Court: Alabama Supreme Court

Page 454

548 So.2d 454

Thomas Edison WATERS, By and Through the ALABAMA FOREST PRODUCTS INDUSTRY WORKMEN'S COMPENSATION SELF-INSURER'S FUND v. J.I. CASE COMPANY, et al.

88-233.

Supreme Court of Alabama.

July 21, 1989.

J. Doyle Fuller, Montgomery, for appellant.

Henry C. Chappell, Jr. of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellees.

ALMON, Justice.

This appeal arises from the dismissal of the plaintiff's complaint in an action arising out of an on-the-job injury. The primary issue is whether the trial court erred in dismissing the complaint on the grounds that it was barred by the statute of limitations.

On October 6, 1983, Thomas Edison Waters was injured when he became pinned between the hydraulic boom and the cab of a loader manufactured by J.I. Case Company ("Case"). As a result of these injuries, the Alabama Forest Products Industry Workmen's Compensation Self-Insurer's Fund ("the Fund") paid workmen's compensation and medical benefits to Waters on the basis of permanent and total disability. Waters did not bring an action against Case or any other party prior to the expiration of the statute of limitations. On April 3, 1985, this action was instituted by "Thomas Edison Waters by and through the Alabama Forest Products Industry Workmen's Compensation Self-Insurer's Fund" against Case. Case filed a motion to dismiss the complaint and on August 4, 1988, the trial court dismissed the complaint. This appeal followed.

Case contends that this appeal is due to be dismissed as untimely filed. The complaint was dismissed on August 4, 1988. On August 15, 1988, a "motion to reconsider" was filed. The court denied the motion on October 17, 1988. The notice of appeal was filed on November 17, 1988. Case argues that, because the notice of appeal was filed more than 42 days after the complaint was dismissed on August 4, 1988, the notice of appeal was untimely and the appeal is due to be dismissed. We disagree. The "motion for reconsideration" merely asked the court to vacate the judgment of dismissal. It was, therefore, a post-judgment motion under Rule 59(e), A.R.Civ.P., and was effective to suspend the running of the time for filing a notice of appeal under Rule 4, A.R.App.P. See Lockhart v. Phenix City Inv. Co., 488 So.2d 1353 (Ala.1986); Papastefan v. B & L Const. Co., 356 So.2d 158 (Ala.1978); Morris v. Merchants National Bank of Mobile, 359 So.2d 371 (Ala.1978). The notice of appeal was timely filed, being filed within 42 days of the date the court entered its order denying the post-judgment motion.

The next issue is whether the trial court erred in dismissing the action on the grounds that the statutory period of limitations had run.

It is undisputed that Waters did not file an action within one year of the date of his injury. ¹ However, the action was commenced within six months after the expiration of the statutory period of limitations. Ala.Code 1975, § 25-5-11(d), provides:

"In the event the injured employee or, in the case of his death, his dependents do not file a civil action against such other party to recover damages within the time allowed by law, the employer or the insurance carrier for the employer shall be allowed an additional period of six months within which to bring a civil action against such other party for damages on account of such injury or death. In the event the employer or the insurance carrier shall have paid compensation to such employee or his dependents, or in the event a proceeding is pending against the employer to require the payment of such compensation, such civil action may be maintained either in the name of the injured employee, or in the case of his death, in the name of his dependents, or in the name of the employer or the insurance carrier, and in the event the damages recovered in such civil action are in excess of the compensation payable by the employer under this chapter and costs, attorney's fees and reasonable expenses incurred by the employer in making such collection, the excess of such amount shall be held in trust for the injured...