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Ex parte Austal USA, LLC

Supreme Court of Alabama

March 3, 2017

Ex parte Austal USA, LLC
v.
Metabowerke GMBH et al. In re: Michael Keshock et al. Ex parte Austal USA, LLC In re: Michael Keshock et al.
v.
Metabowerke GMBH et al.

         Mobile Circuit Court, CV-15-901370.

          PETITION FOR WRIT OF MANDAMUS

          MAIN, Justice.

         Austal 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.

         I. Facts and Procedural History

         Austal 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."

         The plaintiffs filed this action against Austal and three other companies not parties to these petitions.[1] 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.

         Count 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.

         On June 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."

         On July 18, 2016, Austal moved to dismiss counts VIII, XII, XIII, XIV, and XV of the fourth amended complaint.[2] Again, Austal contended that the claims were barred by the exclusivity provisions of the Alabama Workers' Compensation Act and/or the LHWCA.

         On July 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).

         On 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.

         II. 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 (Ala. 2001).
"'"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 ...

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