from Baldwin Circuit Court (CV-16-900890), Scott P. Taylor,
Byron Carter III, Jackson, Mississippi, for appellant.
McClurkin of Vernis & Bowling of Southern Alabama, LLC,
Mobile, for appellee.
American Insurance Company ("Ace"), an intervenor
in the action below, appeals from the Baldwin Circuit Courts
dismissal of the action filed by Aces insured, Willie James
Westbrook, against Rouses Enterprises, LLC, d/b/a Rouses
Markets ("Rouses Markets").
Facts 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
Cardinals 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 Aces 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, [Westbrooks]
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