from Baldwin Circuit Court (CV-16-900890)
American Insurance Company ("Ace"), an intervenor
in the action below, appeals from the Baldwin Circuit
Court's dismissal of the action filed by Ace's
insured, Willie James Westbrook, against Rouse's
Enterprises, LLC, d/b/a Rouses Markets ("Rouses
and Procedural History
August 11, 2016, Westbrook sued Rouses Markets seeking to
recover damages for injuries he sustained as the result of
the allegedly negligent operation of a pallet jack by a
Rouses Markets' employee while Westbrook was delivering
goods to the Rouses Markets' location in Spanish Fort
during the course of his employment with Cardinal Logistics
Management Corporation ("Cardinal"). On that same
date, Westbrook noticed the taking of the depositions of a
Rouses Markets' representative and the employee who was
operating the pallet jack.
November 12, 2016, Ace filed a motion and complaint in
intervention in the action, alleging that it had paid
Westbrook $55, 679.19 in workers' compensation benefits
as Cardinal's workers' compensation insurer pursuant
to a workers' compensation insurance policy executed in
Louisiana. Ace asserted that, pursuant to La. R.S. §
23:1102, it was entitled to a reimbursement from the proceeds
of any recovery by Westbrook from Rouses Markets for those
amounts expended on behalf of Westbrook under the
workers' compensation insurance policy. On November 15,
2016, the trial court entered an order granting Ace's
motion to intervene.
March 27, 2018, Rouses Markets moved the trial court to
dismiss the complaint against it pursuant to Rule 41(b), Ala.
R. Civ. P., arguing that Westbrook has failed to prosecute
the case. Rouses Markets alleged:
"1. This case involves an alleged incident on January
14, 2016, wherein [Westbrook] claims he was injured while
delivering and helping to unload merchandise at [Rouses
"2. This lawsuit was initiated on August 11, 2016.
"3. During the course of the party and factual
discovery, no evidence was presented to indicate that
[Westbrook] was in fact ever injured at [Rouses Markets']
"4. Thereafter, on September 28, 2017, [Westbrook's]
counsel of record Lucy Elizabeth Tufts, Esq. filed her Motion
to Withdraw as counsel for [Westbrook], ... which this Court
granted on October 3, 2017.
"5. Since then, no new counsel of record has appeared
for [Westbrook] and [Westbrook] has otherwise made no further
attempt to prosecute this case since the withdrawal of his
counsel of record over five (5) months ago."
appears that on April 2, 2018, the trial court ordered
Westbrook to respond to the motion to dismiss by April 12,
2018. Westbrook did not respond. However, on April 12, 2018,
Ace filed a motion in response to Rouses Markets' motion
to dismiss, requesting that the trial court deny the motion
to dismiss and stating that it was filing the motion in
response to the motion to dismiss because Westbrook had
failed to respond; that it had paid to that date
approximately $150, 736.09 in workers' compensation
benefits on behalf of Westbrook; that it was entitled to
reimbursement of those funds expended from the proceeds of
any recovery by Westbrook from Rouses Markets; and that,
because Westbrook "apparently has chosen not to pursue
this matter, Ace request[ed] this Honorable Court to allow it
to proceed to obtain recovery of the of the [workers']
compensation it has paid and will pay" to Westbrook.
April 24, 2018, the trial court entered an order granting
Rouses Markets' motion to dismiss ...