Circuit Court, CV-15-901370.
PETITION FOR WRIT OF MANDAMUS
USA, LLC ("Austal"), filed two petitions for a writ
of mandamus directing the Mobile Circuit Court to dismiss
certain claims asserted against it by plaintiffs Michael
Keshock, Martin Osborn, Richard Fitzgerald, Tyrone Lucas,
Riley Bodiford, Tommie Brandon, Justin Reed, and William
White (hereinafter referred to collectively as "the
plaintiffs"). We deny the petitions.
Facts and Procedural History
operates a shipyard in Mobile that builds naval vessels. Each
of the plaintiffs is an employee of Austal who claims to have
been injured while working in the course of his or her
employment. Specifically, each plaintiff claims to have been
injured by a tool known as a "Miller saw."
plaintiffs filed this action against Austal and three other
companies not parties to these petitions. The
plaintiffs' third amendment complaint asserted two counts
against Austal. Count I asserted a tort-of-outrage claim
against Austal. Austal filed a Rule 12(b)(6), Ala. R. Civ.
P., motion to dismiss the tort-of-outrage claim. The trial
court granted the motion to dismiss count I and entered an
order dismissing that claim with prejudice; the
tort-of-outrage claim is not now before us.
VII of the third amended complaint alleged a claim of
"intentional misconduct, " specifically alleging
that Austal had "intentionally provided Plaintiff[s]
with a dangerous and defective Miller saw with the specific
intent that it would cause injury to Plaintiffs." Austal
filed a separate Rule 12(b)(6) motion seeking to dismiss
count VII. Austal argued that it was immune from the claim
asserted in count VII by virtue of the exclusivity provisions
of the Longshore & Harbor Workers' Compensation Act,
33 U.S.C. § 901 et seq. ("the LHWCA"), and the
Alabama Workers' Compensation Act, § 25-5-1 et seq.,
Ala. Code 1975. On June 16, 2016, the trial court entered an
order denying Austal's motion to dismiss count VII. On
June 27, 2016, Austal moved the trial court to vacate its
order or to certify its order for a permissive appeal under
Rule 5, Ala. R. App. P.
28, 2016, the plaintiffs filed a fourth amended complaint.
The plaintiffs' fourth amended complaint restated the
count VII "intentional-misconduct" claim and added
five more counts, each alleging that Austal intentionally
injured them. Count VIII asserted a claim of assault and
battery against Austal. Count XII asserted a claim of fraud
and alleged that Austal "intentionally made false
statements regarding the safety of the Miller Saw" and
that those statements were made "with the conscious and
deliberate intent to injure its workmen, including
plaintiffs, with the Miller Saw so that it could build its
ships without having to incur the costs associated with
finding a safer alternative method to perform the work."
Count XIII alleged that Austal fraudulently "suppressed,
concealed, hid or withheld important facts from the
Plaintiffs regarding the known safety hazards associated with
the Miller Saw ... and that Austal knew the tool was unsafe
and had made the conscious and deliberate decision to
intentionally injure its workmen with the tool so that it
could build its ships without having to incur the costs
associated with finding a safer alternative method to perform
the work." Count XIV alleged that, after the injured
plaintiffs returned to work, Austal "intentionally made
false statements regarding the safety of the Miller saw with
a conscious and deliberate intent directed to the purpose of
inflicting severe emotional distress on the Plaintiffs by
inducing them to use the same Miller Saws in their work that
had previously caused serious injury to Plaintiffs."
Count XV, a fraudulent-suppression claim, similarly alleged
that Austal "intentionally suppressed, concealed, hid or
withheld important facts from the Plaintiffs regarding the
safety of the Miller saw with a conscious and deliberate
intent directed to the purpose of inflicting severe emotional
distress on the Plaintiffs by inducing them to use the same
Miller Saws in their work that had previously caused serious
injury to Plaintiffs."
18, 2016, Austal moved to dismiss counts VIII, XII, XIII,
XIV, and XV of the fourth amended complaint. Again, Austal
contended that the claims were barred by the exclusivity
provisions of the Alabama Workers' Compensation Act
and/or the LHWCA.
19, 2016, the trial court granted Austal's motion to
certify for permissive appeal the question whether count VII
of the third amended complaint stated a claim upon which
relief could be granted. On August 2, 2016, Austal filed with
this Court a petition for permission to appeal or, in the
alternative, for a writ of mandamus (no. 1151138).
August 30, 2016, the trial court denied Austal's motion
to dismiss counts VIII, XII, XIII, XIV, and XV, but also
certified for immediate appeal the question whether those
counts asserted claims upon which relief could be granted. On
September 8, 2016, Austal filed with this Court a second
petition for permission to appeal or, in the alternative, for
a writ of mandamus (no 1151244). This Court consolidated both
petitions. We elected to treat the two petitions for
permissive appeal as petitions for the writ of mandamus and
ordered answers and briefs.
Standard of Review
"'"'The writ of mandamus is a drastic and
extraordinary writ, to 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 Serv. Stations, Inc.,
628 So.2d 501, 503 (Ala. 1993); see also Ex parte
Ziglar, 669 So.2d 133, 134 (Ala. 1995).' Ex
parte Carter, [807 So.2d 534');">807 So.2d 534, ] 536 [(Ala. 2001)]."
"'Ex parte McWilliams, 812 So.2d 318, 321
"'"Subject to certain narrow exceptions ..., we
have held that, because an 'adequate remedy' exists
by way of an appeal, the denial of a motion to dismiss or a
motion for a summary judgment is not reviewable by petition
for writ of mandamus." Ex parte Liberty Nat'l