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Ace American Insurance Company v. Rouse's Enterprises, LLC

Supreme Court of Alabama

December 21, 2018

Ace American Insurance Company
v.
Rouse's Enterprises, LLC, d/b/a Rouses Markets

          Appeal from Baldwin Circuit Court (CV-16-900890)

          BOLIN, Justice.

         Ace 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 Markets").

         Facts and Procedural History

         On 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.

         On 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.

         On 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 Markets'] store.
"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'] store.
"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."

         It 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.

         On April 24, 2018, the trial court entered an order granting Rouses Markets' motion to dismiss ...


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