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03/31/95 EX PARTE LUMBERMEN'S UNDERWRITING ALLIANCE

March 31, 1995

EX PARTE LUMBERMEN'S UNDERWRITING ALLIANCE (IN RE: DAVID PHILLIPS
v.
LUMBERMEN'S UNDERWRITING ALLIANCE AND M. C. DIXON LUMBER COMPANY, INC.)



(Barbour Circuit Court, CV-92-88). William H. Robertson, TRIAL JUDGE, Barbour Circuit Court.

Rehearing Denied June 9, 1995.

Butts, Shores, Kennedy, Ingram, and Cook, JJ., concur.

The opinion of the court was delivered by: Butts

PETITION FOR WRIT OF MANDAMUS

BUTTS, JUSTICE.

A defendant, Lumbermen's Underwriting Alliance ("Lumbermen's Alliance"), petitions this Court for a writ of mandamus directing Judge William H. Robertson, of the Barbour Circuit Court, to grant its motion to dismiss plaintiff David Phillips's claim alleging intentional infliction of emotional distress, otherwise known as the tort of outrage. *fn1

I.

Phillips suffered a work-related injury while employed by M. C. Dixon Lumber Company, Inc. ("Dixon"), on April 26, 1991. Lumbermen's Alliance, as administrator of Dixon's workers' compensation insurance plan, handled Phillips's claim for benefits. Lumbermen's Alliance began paying Phillips weekly payments of $233. However, Phillips and Lumbermen's Alliance could not agree as to the degree of his disability and the benefits due him. Phillips filed a workers' compensation claim against Dixon in the Barbour Circuit Court. The issue before the trial court was the percentage of Phillips's disability. On March 8, 1993, Judge Robertson entered an order granting Phillips permanent total disability benefits.

On May 20, 1993, after its post-judgment motion was denied, Dixon filed a notice of appeal to the Court of Civil Appeals. With its appeal, Dixon also posted a supersedeas bond in accord with Rule 8, Ala.R.App.P, which was approved by the circuit clerk. After the bond was approved, Lumbermen's Alliance discontinued making weekly workers' compensation payments to Phillips; those payments were his only source of income. On January 7, 1994, in M. C. Dixon Lumber Co. v. Phillips, 642 So. 2d 477 (Ala.Civ.App. 1994), the Court of Civil Appeals affirmed the trial court's judgment holding that Phillips was permanently and totally disabled. Thereafter, Dixon petitioned this Court for a writ of certiorari, which was denied on May 20, 1994. Lumbermen's Alliance made no workers' compensation payments to Phillips during the pendency of appellate review of the trial court's judgment.

On January 21, 1994, Phillips sued Dixon and Lumbermen's Alliance, alleging intentional infliction of emotional distress and outrageous behavior, breach of a third-party beneficiary contract, bad faith, fraud, misrepresentation, and "prima facie tort." The basis for each of Phillips's claims was that Dixon and Lumbermen's Alliance were guilty of wrongful conduct by failing to continue making weekly workers' compensation payments to Phillips during the time required for appellate review and had caused him to suffer economic loss and severe mental anguish. The defendants responded by filing a motion to dismiss Phillips's complaint. The trial court granted the defendants' motion as to all counts, except the allegation of intentional infliction of emotional distress, or the tort of outrage. Thereafter, the trial court denied the defendants' request to seek an appeal, by Rule 5, Ala.R.App.P., of the ruling denying a dismissal of Phillips's outrage claim. On June 22, 1994, Dixon and Lumbermen's Alliance jointly petitioned for a writ of mandamus, seeking an order requiring Judge Robertson to dismiss Phillips's outrage claim. However, on July 20, 1994, the trial court granted Dixon's motion for a summary judgment as to that claim. Thus, Lumbermen's Alliance is now the sole petitioner in this Court.

II.

The writ of mandamus is an extraordinary remedy, and it will be issued only when there is "1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court." Ex parte United Service Stations, Inc., 628 So. 2d 501, 503 (Ala. 1993). Additionally, a writ of mandamus will not be issued if the matter complained of can ultimately be resolved by an appeal. Ex parte Spears, 621 So. 2d 1255 (Ala. 1993).

This Court has previously granted a writ of mandamus ordering a circuit Judge to dismiss a plaintiff's complaint where it was clear the petitioner had a legal right to the dismissal, but we also have denied such a writ where the facts available for review were insufficient to determine whether the petitioner had a clear legal right to dismissal of the action. See Ex parte City of Birmingham, 624 So. 2d 1018 (Ala. 1993), and Ex parte State Farm General Ins. Co., 549 So. 2d 484 (Ala. 1989). Thus, the issue we must address is whether, under the ...


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