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Banks v. Premier Service Co., Inc.

Alabama Court of Civil Appeals

August 22, 2014

Donna C. Banks
v.
Premier Service Company, Inc.

Appeal from Bibb Circuit Court (CV-10-900099).

DONALDSON, Judge.

This appeal arises from a judgment denying benefits under the Alabama Workers' Compensation Act, Ala. Code 1975, § 25-5-1, et seq. ("the Act"), to an adult daughter of a deceased employee. The material facts of this case are not in dispute. Thomas D. Banks was murdered by a coworker on October 8, 2010, while at work for his employer, Premier Service Company, Inc. ("Premier"). Thomas was survived by his wife, Catalina Banks, and his adult daughter, Donna C. Banks. Donna was a 22-year-old student at the University of Alabama at the time of Thomas's death. Donna and her fiancé, Nick Taggart, were living with their infant child in a trailer owned by Thomas. Taggart was employed full time. Thomas provided some financial support for Donna at the time of his death. Donna was neither physically nor mentally incapacitated at any relevant time. Catalina and Donna filed a complaint against Premier in the Bibb Circuit Court ("the trial court"), seeking benefits under the Act and also seeking damages for tort claims.[1]

The workers' compensation claims were tried on January 30, 2013. At trial, the parties stipulated:

"The parties are subject to the Workers' Comp Act. Number 2., Thomas D. Banks was killed on October the 8th, 2010. He was murdered by a coworker while working within the line and scope of his employment and working for [Premier]. Number 3, the average weekly wage of the decedent, Thomas D. Banks, was 775.60. Number 4, with the payment today of $5, 626.51, [Premier] has paid the widow, Catalina Banks, all sums to which she is entitled as of this date which are equivalent to a sum of 50 percent of Thomas D. Banks's average weekly wage. And Number 5, [Premier] will continue to pay to the widow this set amount for as long as she is eligible under the Workers' Compensation Act which is the maximum of 500 weeks until suspended upon either the death or remarriage of the widow, Catalina Banks."

The trial court admitted transcripts from the depositions of Catalina and Donna, and it also received testimony from Donna. At the close of the trial, the court stated:

"[I]t does appear that the law -- the way I see it and the way it has been represented to me about how the partial dependents are dealt with -– you have to have been a dependent prior -- at the time of death. And, of course, that's not the case here. That's the stipulated fact. And, so, I have no choice but to rule in favor of [Premier], and I grant [its] motion we talked about. You can prepare me an order specifying and making those findings for me because, you know, to me, clearly I think all of the evidence of the [Donna's], that is, of the emotionally incapacitated, should I say, came after the death of her father. You know, clearly [Donna] was dependent on her father. I mean, without a doubt, all these other -- matter of fact, Defendant's Exhibit 3 about the situation in Tuscaloosa, there's no consequence to the issue of that. Clearly, she was a dependent in my mind. But the question is, she doesn't fit the statute of already being emotionally challenged and not able to earn at that time, so. Of course, I wanted to see if I could have found coverage for the grandchild, but the grandchild is not a party. So we had to move forward. So that will be my order. I really appreciate you all and thank you all for coming."

On February 5, 2013, the trial court entered a judgment containing written findings of fact and conclusions of law. The trial court found:

"The Court finds that plaintiff Donna Banks was the daughter of decedent Thomas D. Banks. Donna Banks was born on November 12, 1987. At the time of decedent Thomas D. Banks's October 8, 2010, death, Donna Banks was twenty-two (22) years of age. The Court finds that she was partially dependent and being supported by her father, but was neither physically handicapped nor mentally handicapped at the time of her father's death. At the time of her father's death, Donna Banks was living in a trailer with her fiancé Nick Taggart, and their infant child, Nathaniel Taggart. The Court finds that Nick Taggart was working full time at Blue Beacon Truck Wash at the time of Thomas D. Banks's October 8, 2010, death.
"The Court further finds that in addition to maintaining a household with her fiancé and infant child -- Donna Banks was pursuing a double major in Marine Science and Geology with a special focus in Paleontology at The University of Alabama at the time of her father's death. Following her father's death, Donna Banks continued to pursue her studies at The University of Alabama and graduated with a double major in Marine Science and Geology in December 2012. The Court finds that Donna Banks did not sustain emotional trauma and loss as a result of Thomas D. Banks's October 8, 2010, death. She has not been able to concentrate and adequately pursue gainful employment."

Based on its findings of fact, the trial court entered the following judgment:

"It is therefore the finding and conclusion of this Court, after having taken into consideration the testimony and after considering all of the evidence and applicable law, that the plaintiff Donna Banks is not a dependent of decedent Thomas D. Banks as defined by the Alabama Workers' Compensation Act. The Court finds that Donna Banks, decedent's daughter, was 22 years of age at the time of the October 8, 2010, murder. The Court further finds that she was not physically or mentally incapacitated from earning at that time as the definition is stated in the Code. Accordingly, Donna Banks is barred from recovering workers' compensation death benefits as a result of her father's death pursuant to Ala. Code, § 25-5-65 (1975)."

On February 28, 2013, Donna filed a motion to alter, amend, or vacate the judgment or, in the alternative, for a new trial. Those motions were denied by operation of law, and Donna filed a timely notice of appeal on July 9, 2013.[2] On appeal, Donna raises a single issue -- whether the trial court erred in ruling that she was not entitled to death benefits under the Act.

Because the material facts are undisputed and the resolution of this appeal involves the application of the provisions of the Act to those facts, we review the trial court's judgment without a presumption of correctness. ยง 25-5-81(e)(1) ("In reviewing the standard of proof set forth herein and other legal issues, review by the Court of Civil Appeals ...


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