Ex parte Burkes Mechanical, Inc.

          Wilcox Circuit Court, CV-18-900077

          PETITION FOR WRIT OF MANDAMUS

          STEWART, JUSTICE.

         Burkes Mechanical, Inc., petitions this Court for a writ of mandamus directing the Wilcox Circuit Court ("the trial court") to vacate its order denying Burkes's motion to dismiss claims of negligence, wantonness, and the tort of outrage asserted against Burkes by Alexsie McCoy and to enter an order dismissing those claims. We deny the petition.

         Facts and Procedural History

         On April 6, 2018, McCoy was injured during the course of his employment as an iron worker for Burkes. According to McCoy's complaint, McCoy and two other iron workers were working in a hot, confined space at a mill owned by International Paper Company ("IP") and were using welding torches to cut heavy metal plates in IP's debarking machine. A worker employed by another company broke a welding line, which ignited the air. McCoy sustained severe burn injuries. According to McCoy, Burkes failed to notify IP, which had an emergency-medical-response team on site to address workplace injuries. According to McCoy, a Burkes employee sprayed an "improper substance" on McCoy to treat the burn injury and refused McCoy's request to cut off McCoy's shirt. McCoy further alleged that, rather than calling an ambulance, Burkes transported McCoy by private vehicle to a local doctor's office. The doctor advised that the injuries were too severe to be treated at his office and that McCoy needed to be taken to a hospital. A Burkes employee transported McCoy to a drugstore to purchase over-the-counter burn cream and then to Grove Hill Memorial Hospital. That hospital determined that the burns were too serious to be treated there, and, as a result, McCoy was transported by ambulance to the University of South Alabama Medical Center in Mobile, where he was hospitalized for approximately one week.

         On September 20, 2018, McCoy sued Burkes and other defendants^[1] in the trial court seeking benefits under the Act and asserting claims of negligence, wantonness, and the tort of outrage against Burkes and the other defendants. McCoy's claims against Burkes were based on his assertions that Burkes failed to furnish appropriate medical care and to provide reasonable and prompt access to qualified health-care providers after his workplace accident. On October 24, 2018, Burkes filed an answer and asserted various affirmative defenses. That same day, Burkes filed a motion to dismiss McCoy's negligence and wantonness claims against it, asserting that § 25-5-52 and § 25-5-53, Ala. Code 1975, the exclusivity provisions of the Alabama Workers' Compensation Act, § 25-5-1 et seq., Ala. Code 1975 ("the Act"), barred those claims. Burkes also sought the dismissal of the tort-of-outrage claim because, it asserted, McCoy had not pleaded facts sufficient to constitute the tort of outrage. On January 27, 2019, the trial court entered an order denying Burkes's motion to dismiss. Burkes timely filed a petition for the writ of mandamus in this Court.

         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, ] 536 [(Ala. 2001)]."

Ex parte McWilliams, 812 So.2d 318, 321 (Ala. 2001).

         "This Court has repeatedly held that the denial of a motion to dismiss is reviewable by a petition for a writ of mandamus when the motion to dismiss asserts immunity under the exclusive-remedy provisions of the Workers' Compensation Act." Ex parte Tenax Corp., 228 So.3d 387, 390-91 (Ala. 2017)(citing Ex parte McCartney Constr. Co., 720 So.2d 910 (Ala. 1998), Ex parte Progress Rail Servs. Corp., 869 So.2d 459 (Ala. 2003), and Ex parte Rock Wool Mfg. Co., 202 So.3d 669 (Ala. 2016)).

"'"'In reviewing the denial of a motion to dismiss by means of a mandamus petition, we do not change our standard of review ....'" Drummond Co. v. Alabama Dep't of Transp., 937 So.2d 56, 57 (Ala. 2006) (quoting Ex parte Haralson, 853 So.2d 928, 931 (Ala. 2003)).

"'"In Newman v. Savas, 878 So.2d 1147 (Ala. 2003), this Court set out the standard of review of a ruling on a motion to dismiss for lack of subject-matter jurisdiction:

"'"'A ruling on a motion to dismiss is reviewed without a presumption of correctness. Nance v. Matthews, 622 So.2d 297, 299 (Ala. 1993). This Court must accept the allegations of the complaint as true. Creola Land Dev., Inc. v. Bentbrooke Housing, L.L.C., 828 So.2d 285, 288 (Ala. 2002). Furthermore, in reviewing a ruling on a motion to dismiss we will not consider whether the pleader will ...