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Ex parte Texas Loss Control Sys., LLC

Alabama Court of Civil Appeals

October 10, 2014

Ex parte Texas Loss Control Systems, LLC; In re: Christy Ruiz
v.
National Dairy, LLC, et al.

Released for Publication June 10, 2015.

(Houston Circuit Court, CV-10-900141). Henry D. Binford, Trial Judge.

PETITION TRANSFERRED.

For Petitioner: Eris Bryan Paul, Robert M. Girardeau, Vishal H. Shah, Huie, Fernambucq & Stewart, LLP, Birmingham.

For Respondent: Roger L. Lucas, Thomas M. Powell, Marsh, Rickard & Bryan, P.C., Birmingham.

All the judges concur.

Page 603

PETITION FOR WRIT OF MANDAMUS

Per Curiam.

Texas Loss Control Systems, LLC (" TLCS" ), has filed a petition seeking a writ of mandamus directing the Houston Circuit Court (" the trial court" ) to enter a summary judgment in favor TLCS in a wrongful-death action filed by Christy Ruiz. The Alabama Supreme Court transferred the petition to this court; we transfer the petition back to the supreme court for disposition.

The materials filed in support of or in opposition to the petition demonstrate the following facts. On July 20, 2009, Gerald Ruiz (" the employee" ) received severe personal injuries in an accident arising out of and in the course of his employment with Dairy Fresh of Alabama, LLC (" the employer" ), when a truck driven by a co-employee struck him. On April 23, 2010, the employee and his wife, Christy, filed a civil action against the employer and several fictitiously named defendants. The employee later died, and Christy substituted herself, in her capacity as the personal representative of the employee's estate, as a plaintiff.[1] On May 24, 2012, Christy amended the complaint to substitute TLCS for one of the fictitiously named defendants. Christy alleged that TLCS had entered into a contract with National

Page 604

Dairy Holdings, LLC, alleged to be a parent company of the employer, pursuant to which TLCS undertook to inspect and/or review the operations, facility, and safety program of the employer and to implement and monitor compliance with safety policies and procedures at the plant where the employee had worked. Christy asserted that TLCS had breached that contract by failing to use reasonable care in that undertaking, thereby proximately causing the injuries to, and the death of, the employee. Christy further alleged that TLCS was a successor in interest to one or more other defendants and that, as such, TLCS was liable for the conduct of those other defendants, which, she alleged, had proximately caused the injuries to, and the death of, the employee.

On March 14, 2014, TLCS filed a motion for a summary judgment; it filed an amended motion on April 15, 2014. In that motion, as amended, TLCS argued, in pertinent part, that it was immune from civil liability based on Ala. Code 1975, § 25-5-53, which, it contended, precludes civil actions against " a company ... making a safety inspection on behalf of a self-insured employer." The trial court denied the motion on June 26, 2014. TLCS filed a petition for a writ of mandamus with the Supreme Court of Alabama on August 7, 2014; that court transferred the petition to this court on August 14, 2014, stating:

" It appearing to the Court that this cause is within the original appellate jurisdiction of the Court of Civil Appeals, pursuant to Ala. Code 1975, 12-3-10, IT IS, THEREFORE, ORDERED that this cause is ...

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