In Ex parte Burkes Mechanical, Inc., 28 ALW 50-3 (1180402); 12/6/2019, 170-3 (2171022), 4/19/2019, the Employer, Burkes Mechanical, Inc., (Burkes Mechanical) petitioned the Alabama Supreme Court for a writ of mandamus directing the trial court to vacate its Order denying its Motion to Dismiss claims of negligence and wantonness asserted against it by Employee Alexsie McCoy, (McCoy) and to enter an Order dismissing those claims.  The Alabama Supreme Court denied the petition.

On April 6, 2018, McCoy sustained severe burn injuries while working in the course of his employment as an iron worker for Burkes Mechanical at a mill owned by International Paper Company (International Paper).  International Paper had an emergency medical response team on site to address on-the-job injuries, but McCoy claimed that Burkes Mechanical failed to notify International Paper about his injury and instead, he claimed, that a Burkes Mechanical employee sprayed an “improper substance” on him to treat the burn injury and refused his request that his shirt be cut off. 

Further, McCoy claimed that Burkes Mechanical failed to call an ambulance and had an employee drive him to a local doctor’s office instead.  The local doctor advised that his injuries were too severe to be treated at his office, and so, a Burkes Mechanical employee drove him to the local hospital where the physicians there also advised that his injuries were too severe to be treated there, and accordingly, McCoy was then transported by ambulance to the University of South Alabama Medical Center in Mobile, Alabama where he was treated as an in-patient for approximately one (1) week.

On September 20, 2018, McCoy sued Burkes Mechanical seeking benefits under the Alabama Workers’ Compensation Act and asserting claims of wantonness, negligence and tort of outrage.

On October 24, 2018, Burkes Mechanical filed an answer and affirmative defenses to McCoy’s Complaint and also, a Motion to Dismiss the negligence and wantonness claims against it asserting that that the exclusivity provisions of the Alabama Workers’ Compensation Act, Sections 25-5-52 and 25-5-53, Ala. Code 1975, barred those claims.

On January 27, 2019, the trial court entered an order denying Burkes Mechanical’s Motion to Dismiss, and Burkes Mechanical filed its timely petition for writ of mandamus.  A denial of a Motion to Dismiss is reviewable by petition for writ of mandamus when the Motion asserts immunity under the exclusivity provisions of the Alabama Workers’ Compensation Act.  Ex parte Tenax Corp., 228 So. 3d 387, 390-91 (Ala. 2017).

Burkes Mechanical argued that McCoy’s claims of negligence and wantonness were barred by the exclusivity provisions; however, these provisions cover only those injuries arising out of and in the course of the employment.  In the present case, the Court noted that after McCoy suffered his on-the-job injury, a Burkes Mechanical employee sprayed an improper substance on him, refused to notify International Paper’s on-site emergency response team and refused to cut off McCoy’s shirt as he requested.  Additionally, the Burkes Mechanical employee also failed to call an ambulance and instead of taking him to the hospital first, he drove McCoy to a local doctor’s office.  McCoy argued that these post-injury actions and omissions did not arise out of and in the course of his employment and occurred independently after the accident, and therefore, his claims were not barred by the exclusivity provisions.

In considering the allegations in McCoy’s Complaint most strongly in favor of the employee, as required by the Alabama Workers’ Compensation Act, the Alabama Supreme Court concluded that the trial court could have determined that McCoy’s negligence and wantonness claims arose out of post-injury events and did not arise from “an accident proximately resulting from, and that occurred while the employee was engaged in the actual performance of the duties of his employment.”  Quoting, Ex parte Shelby Ct. Health Care Auth., 850 So. 2d 332, 337 (Ala. 2002), and that accordingly, McCoy’s claims were not barred by the exclusivity provisions.  Additionally, Burkes Mechanical did not demonstrate a clear legal right to have these claims dismissed and accordingly, the Alabama Supreme Court denied the writ of mandamus filed by Burkes Mechanical.