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from Mobile Circuit Court (CV-15-900376), Jay A. York, J.
L. Kaffer of The Kullman Firm, P.C., Mobile, for appellant.
J. Dailey, Mobile; and Thomas M. OHara of OHara Watkins,
LLC, Daphne, for appellee.
Merchants FoodService, a foreign corporation
("Merchants"), appeals from a final judgment
entered by the Mobile Circuit Court following a jury verdict
in a retaliatory-discharge action filed by Denny Rice. The
jury awarded Rice compensatory damages of $ 314,862.88 and
punitive damages of $ 944,588.64. We affirm.
Merchants owns and operates a wholesale-food delivery
business throughout the southeastern United States. Rice
began working for Merchants in October 2012 as a delivery
driver in its Mobile, Alabama, shuttle yard. The Mobile yard
is in Merchants Clanton division, which coordinates
deliveries in Alabama for the company. Merchants largest
customer in the Mobile area was the Mobile School System.
Rice was injured on the job, and, when he returned to work
following his injury, Josh Averhart was the Clanton
divisions transportation manager. Immediately below Averhart
was Rices immediate supervisor, Brian Maryland.
July 24, 2014, after Rice had finished his own deliveries,
Rice decided to help another driver, Joe Paige, finish his
deliveries. Rice drove his personal vehicle to help Paige
unload food at Murphy High School in Mobile. The delivery for
Murphy High School was 600 cases, and Paige testified that
this required a driver to travel up and down the delivery
ramp 40 to 50 times to complete the delivery. According to
Paige, the ramp on the Merchants truck trailer that day did
not fit the trailer. When that is the case, Merchants
instructs its drivers to secure the ramp with straps, but,
according to Paige, the straps have
difficulty holding the weight of the cases, the cart, and a
driver. On one of Rices trips, as he was climbing up the
ramp, a strap broke loose, causing Rice and the ramp to hit
the ground. Rice landed awkwardly and jammed his neck and his
back. Paige telephoned Maryland to report the accident. Rice
attempted to work the next day, but with his injuries he was
not able to perform any heavy lifting.
saw a physician, who placed him on work restrictions. Because
the restrictions prevented Rice from commercial driving or
heavy lifting, there was no position at the Mobile shuttle
yard for Rice to perform. As a result, Rice was on leave from
work for approximately four and one-half months, and he
received full workers compensation benefits during that
period. Rice regularly informed Maryland of his medical
condition and return-to-work status during his absence.
During Rices absence, Merchants hired another driver to make
deliveries from the Mobile shuttle yard.
Wednesday, December 3, 2014, Rices physician released him to
return to work effective Monday, December 8, 2014. That same
day, Rice provided Maryland with his physicians
return-to-work clearance form, and, according to Rice,
Maryland told him that he would get with a supervisor and
place Rice back on the work schedule. Rice talked with
Maryland again on December 7, 2014, and Maryland told Rice
that he and Averhart wanted to meet with Rice at the Mobile
shuttle yard at 5:30 a.m. the following morning, which was
around Rices usual starting time for making deliveries. On
December 8, 2014, at 5:30 a.m., immediately after Rice got
out of his vehicle at the Mobile shipping yard, Averhart and
Maryland met Rice, and Averhart terminated Rices employment
with Merchants. According to Rice, Averhart told Rice that
"[a]t this point we have more drivers than we do routes
and we dont need you [any] more."
testified that, after he was fired, he felt shocked,
"like somebody had sucker punched me right in the
face." He said he felt a lot of self-doubt, a lot of
stress, and he was "was up at night trying to figure out
how Im going to take care of this, how am I going to fix
this, how am I going to pay the bills until [I get a
job]." At times, he would wake up in the middle of the
night in a sweat, and then he would pace up and down the
hallway. Rice testified that he developed trust issues as a
result of the firing. He also stated that he supports his
fiancée Michelle and her two daughters and that he
became a lot more irritable toward them after he lost his
job. He stated that he and Michelle had planned to get
married in 2015 but that their plans were indefinitely
postponed because of his trust issues.
Following the termination of his employment with Merchants,
Rice did not immediately begin looking for work because he
knew that it was not a good time of the year for drivers to
be hired. To meet expenses, Rice had to withdraw $ 20,000
from his 401(k) retirement account. Rice then studied for and
took Alabama Department of Transportation tests to add
further endorsements to his commercial drivers license
("CDL") so that he would be qualified to pull
double-trailers and to transport hazardous substances. He
knew that the added endorsements would make him a more
marketable commercial driver. Rice also reached out to
contacts in his field, including a friend who worked at Estes
Express Lines ("Estes").
spring of 2015, Rice applied for and obtained a job with
Estes. Rice testified that, during his interview with Estes
before he secured the job, most of his time was spent
discussing the termination of his employment with Merchants.
that that experience contributed to his belief that his
termination from Merchants could harm his future
employability if he were unable to remain with Estes.
began working for Estes on March 30, 2015. Estes pays its
drivers by the hour. When he was initially hired by Estes,
Rice earned $ 20.35 per hour. Eventually, he received a raise
to $ 24.33 per hour. For Estes, Rice works an average of 50
hours per week or more. It is undisputed that Rice works 18
hours or more per week more for Estes than he did for
Merchants, meaning that Rice works 936 hours more per year
with Estes than he did with Merchants. During his first full
year with Estes, Rice earned a total of $ 49,000.
does not pay drivers by the hour. Instead, it pays based on a
productivity formula consisting of cases delivered, number of
delivery stops, mileage, and whether the full load is
actually delivered. At trial, Rice testified that he worked
an average of 32 hours per week for Merchants. Rice testified
that he typically got off work in the early afternoon at one
or two oclock and that he had planned before he was injured
to start a side business mowing lawns. Rice further testified
that it was not possible to have such a side business with
the extra hours he works for Estes. According to Merchants
records, on average Rice earned $ 911.43 per week. According
to Rice, his effective hourly rate at Merchants was $ 28.48
per hour. During his last full year with Merchants, Rice
earned a total of $ 42,000.
February 6, 2015, Rice sued Merchants in the Mobile Circuit
Court alleging retaliatory discharge. Following discovery, on
June 2, 2017, Merchants filed a motion for a partial summary
judgment concerning the issue of "frontpay."
Frontpay refers to future earnings awarded in lieu of being
reinstated to a former position. In its motion, Merchants
conceded that, if Rice had been discharged for filing a
workers compensation claim, he would be entitled to seek
compensation for the earnings he would have received between
the date his employment was terminated by Merchants (December
8, 2014), and the date he was hired by Estes (March 30, 2015)
-- a total of $ 14,582.88. Merchants disputed, however, that
Rice was entitled (1) to an award of any future earnings from
the date he began working for Estes through a date just
before the trial began (June 9, 2017) -- a total Rice
calculated to be $ 14,824.00 -- or (2) to an award of future
earnings from the date of trial through Rices estimated date
of retirement at age 65 (April 1, 2031) -- a total Rice
calculated to be $ 190,855.71. Merchants argued that, as a
matter of law, Rice was not entitled to recover any future
earnings because "he makes more money in his new job
than he did with Merchants." In other words, Merchants
asserted that "Alabamas law makes clear that because
[Rice] currently takes home more money [with Estes] than
while employed by Merchants, he has suffered no future lost
wages or actual future economic damages that could entitle
him to a front pay award."
trial court heard Merchants argument on its motion for a
partial summary judgment before the trial began, and it
"Im going to let the evidence come out and you can
argue at the appropriate time. And you can, if you want to,
bring it up on a motion for a directed
verdict. At this point Im going to deny your
motion for a summary judgment on that point and Im going to
let the evidence come in."
June 6, 2017, Merchants filed a motion in limine in
which it sought, among other things, to exclude former
Merchants employee John Nims from testifying at trial. Nims
worked for Merchants as a driver at the Pensacola, Florida,
shuttle yard. On May 12, 2014, he was injured on the job,
and, like Rice, he was placed on restriction from work by his
physician for an extended period. During Nimss absence,
Merchants hired another driver at the Pensacola shuttle yard
to perform deliveries. On January 8, 2015, Nims was cleared
to return to work for Merchants. Nimss employment was
terminated on the day he returned to work, for the same
reason that had been given to Rice, i.e., Merchants no longer
had a position open for him because it had hired another
driver to fill his position. Merchants did not attempt to
place Nims in another position in the company. Nims filed a
retaliatory-discharge action against Merchants that
eventually was settled, with Merchants admitting no fault.
motion in limine, Merchants contended that Nimss
testimony should be excluded because, it argued, even if
Nimss employment termination was considered to be analogous
to Rices termination, one example does not establish a
"pattern or practice" of retaliatory discharge by
Merchants under Rule 404(b), Ala. R. Evid. Merchants
argued that, to fit within a "pattern or practice,"
there must be evidence of "a significant number of other
employees in the plaintiffs protected class" or
evidence indicating that retaliatory discharge "was
Merchants standard operating procedure. " (Quoting
Cooper v. Federal Reserve Bank of Richmond, 467 U.S.
867, 876, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984).) Rice
responded that he was offering Nimss testimony for the
purpose of establishing intent on Merchants part, not on the
issue of punitive damages.
hearing on pending motions held a few days before the jury
was empaneled, the trial court denied Merchants motion
in limine with regard to Nims, explaining:
"Lets talk about what happened to Mr. Nims. If you look
at the Alabama Rules of Evidence I think that in this
particular situation this other act can be offered for the
purpose for which [Rice is] offering this particular case to
show that Merchants, I guess, arguably was at least in these
two situations in the way they handled the return to work on
the part of the injured worker....
"... Im going to deny [the motion in limine ]
as to Nims."
trial, when Nimss video deposition was introduced, Merchants
raised several objections to specific portions of his
testimony but did not raise any objection predicated on the
notion that Nims should not be permitted to testify at all.
trial, Merchants defended its termination of Rices
employment by contending
that Rice was one of eight delivery drivers covering eight
delivery routes in Mobile; that Merchants could not hold
Rices delivery routes open during his lengthy medical leave,
part of which was during Merchants busiest delivery season;
and that, by the time Rice was cleared to return to work,
Merchants had a full complement of eight delivery drivers and
did not have enough volume to justify employing a ninth
introduced evidence indicating that Merchants employee
handbook contained a policy as to what should be done when an
employee returns to work following a leave in which the
employee received workers compensation benefits.
Specifically, Section 7.7 of the employee handbook provides:
"Any employee returning from non-FMLA medical leave of
absence under this Section will be allowed to return to his
or her former position if there is an opening available. If
there is no opening available, an effort will be made to
place the employee in another available position for which he
or she is qualified and capable of performing."
undisputed that Merchants did not follow the above-quoted
policy with regard to Rice because Averhart did not make any
effort to place Rice in another position in the company, even
though Averhart testified that he was aware of the policy.
Rice also introduced deposition testimony from one of
Merchants corporate witnesses, Jan Farve, who initially
denied that Merchants had a policy for employees returning
from workers compensation leave, but who later admitted that
Merchants managers should have followed the policy in Rices
case. Rice also introduced an e-mail sent from Farve to
Averhart, Maryland, and another supervisor on January 8,
2015, after Farve learned that Nimss employment had been
"With the changing federal WC [workers compensation]
laws....going forward we do not need to term someone right
off of WC Leave. If their position isnt open any longer, we
need to find something for them to do, and work the process.
Thanks guys....[T]his one will probably come back to bite us,
so stay tuned, Ill probably need yall."
(Ellipses in original.)
also introduced deposition testimony from Merchants employee
Charles Tillman, who testified that in October 2014 he was
placed in a new-driver recruiting position in Newberry, South
Carolina, to recruit drivers for new business Merchants had
acquired. Tillman stated that the Newberry location went from
employing around 10 drivers to employing over 40 drivers. On
November 19, 2014, Farve sent Merchants chief executive
officer Andy Mercier an e-mail asking him how many markets
Merchants needed to "ramp up" recruitment in at
that time, and Mercier responded: "All markets." In
a November 25, 2014, e-mail from Farve to a hiring recruiter,
Farve stated that "[w]e are in a spot where we need to
double our drivers for all branches." Rice also
introduced evidence indicating that on December 19, 2014, 11
days after Rices employment was terminated, Merchants posted
an opening for a delivery driver for its Mobile shuttle yard.
Rice also introduced other Merchants job postings for
drivers in Mobile and Pensacola between November 2014 and
close of Rices case-in-chief, Merchants made an oral motion
for a judgment as a matter of law solely with respect to the
issue of Rices claim for lost future earnings.
"MS. KAFFER [Merchants counsel]: Yes, sir. Your Honor,
we have a motion
[for a] directed verdict just on the issue of front pay
damages. The lost pay damages from the time Mr. Rice started
with the new employment.
"His own testimony is that in his new employment he
makes more money than his old employment. For that reason and
the undisputed evidence in the record he cannot prevail on
the claim for lost pay from the time he started his new
"Evidence that if [he] had more time off work he could
have earned money with the lawn care business is too
speculative to support the damages that hes claiming.
"THE COURT: Go ahead, Mr. OHara [Rices counsel]. Any
other motions besides that, Ms. Kaffer?
MS. KAFFER: No, sir.
"THE COURT: Go ahead and address that one issue on the
"MR. OHARA: Judge, the law of Alabama on retaliatory
discharge says that were entitled compensatory damage and
punitive damages just like any other tort. I believe that
because of the difference in pay systems between Merchants
and his new employer Estes we had to extract from Merchants
pay system an hourly wage, effective hourly wage, averaged
over the period that he worked there. Doing that we made a --
we presented substantial evidence of loss in earning capacity
and loss of wages. He made close to [$ 4.15] per hour less.
On that basis I believe we presented substantial and
sufficient evidence to allow the issue to go to the jury for
them to determine whether weve met our burden and whether
hes entitled to those lost future wages.
"THE COURT: Anything else, Ms. Kaffer?
"MS. KAFFER: No, Your Honor.
"THE COURT: Im going to deny [Merchants] motion and
let it go to the jury on that issue. I think the[re is a]
fact question[ ] with regard to the effect of the subsequent
employment as compared to his prior employment."
Following the presentation of evidence from Merchants, the
case proceeded to the jury-charge conference. Merchants did
not move for a judgment as a matter of law at the close of
all the evidence.
the charge conference, Rice submitted a proposed jury
instruction with regard to lost future earnings that tracked
Alabama Pattern Jury Instruction -- Civil 11.17 for
"Loss of Future Earnings or Future Earnings
Capacity." The trial
court rejected the proposed instruction in favor of its own
"On the future earnings charge it implies that part of
that is because of his physical limitations. Ive taken all
that out. Its strictly on his loss of earning capacity. They
can look at his physical condition kind of -- Let me see how
I put it in the charge so I can be clear on this. What I said
was this regarding future earnings. Denny Rices earning
power or capacity before his injury and what they are now --
This is what they can consider with regard to the future lost
wages. Denny Rices earning power or capacity before his
injury and what they are now, the type and degree of his
alleged financial loss and whether or not the jury is
reasonably satisfied there will be future financial loss and,
if so, how long it will last. Heres the only thing that I
think might be confusing to the jury. I disallowed [Rices]
expert. I dont know how else to handle this because its a
correct statement of the law. But if you decide that Denny
Rice will lose future earnings and has lost future earning
capacity, you must then determine the amount he is reasonably
certain to lose and reduce that to present value. Thats a
correct statement of the law. I dont know how they will do
it. Theyre just going to have to make their best effort at
it, I suppose. Theres been no testimony. Im not aware of
any formula to use as a matter of law. There may be one but
Im just not aware of it. I think they will have to use their
own discretion on that."
Neither party registered an exception to the trial courts
ruling on this instruction.
lost future earnings, the trial court instructed the jury as
"Denny Rice says that Merchants FoodServices conduct
caused him to lose future earnings. To decide that amount
with regard to the loss of future earnings, you must first
determine the effect, if any, the injury had on his future
earnings. To decide this question you must consider the
following. Number one, Denny Rices earning power or capacity
before this injury and what they are now and, two, the type
and degree of the financial loss and, three, whether or not
you are reasonably satisfied there will be future loss and
how long it will last. If you decide that Denny Rice will
lose future earnings then you must determine the amount that
he is reasonably certain to lose and reduce that amount to
its present value. Again,
I want to tell you that in determining the loss of earnings
it has nothing to do with his workmans compensation injury.
This only pertains to the claim that he is making against