Ex parte Burkes Mechanical, Inc.
International Paper Company and Burkes Mechanical, Inc. In re: Alexsie McCoy
Circuit Court, CV-18-900077
PETITION FOR WRIT OF MANDAMUS
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.
and Procedural History
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.
September 20, 2018, McCoy sued Burkes and other
defendants 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.
"'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).
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
"'"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
"'"'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 ...