REL: 4/6/2007 Johnson v. Jefferson Smurfit Corp.
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
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before the opinion is printed in Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2006-2007
_________________________
2050501
_________________________
Stanley B. Johnson
v.
Jefferson Smurfit Corporation
Appeal from Escambia Circuit Court
(CV-03-136 )
PITTMAN, Judge.
AFFIRMED.
NO OPINION.
See Rule 53(a)(1) and (a)(2)(A), Ala. R. App. P.; Ala.
Code 1975, § 25-5-81(c)(2); Ex parte Keao, 900 So. 2d 442
(Ala. 2004); Liberty Nat'l Life Ins. Co. v. Daugherty, 840 So.
2050501
2d 152, 161 (Ala. 2002); Ex parte Staggs, 825 So. 2d 820, 822
n.1 (Ala. 2001); Ex parte Golden Poultry Co., 772 So. 2d 1175,
1176 (Ala. 2000); Ex parte Trinity Indus., Inc., 680 So. 2d
262, 268 (Ala. 1996); and Newman v. State, 623 So. 2d 1171,
1172 (Ala. Civ. App. 1993).
Thompson, P.J., and Bryan and Thomas, JJ., concur.
Moore, J., concurs specially.
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2050501
MOORE, Judge, concurring specially.
I concur in the decision to affirm the judgment of the
trial court denying a claim for permanent-total-disability
benefits
filed
Substantial
by
Stanley
evidence
determination
that
fully
the
B.
Johnson
supported
employee
was
("the
the
not
employee").
trial
court's
permanently
and
totally disabled but, instead, had sustained a 33% permanent
partial disability due to a work-related shoulder injury.
The
employee himself testified that he was capable of working,
even arguing at one point that he could have returned to work
at
his
former
job
at
Jefferson
employer") as an electrician.
Smurfit
Corporation
("the
Surveillance videotapes showed
that the employee could perform a variety of physical tasks,
including operating heavy equipment.
The employee's treating
physicians agreed that the employee could return to work with
restrictions placing him in the light to medium category of
jobs that compose the vast majority of the labor market.
I write specially to address the employee's contention
that the doctrine of judicial estoppel precludes the employer
from denying that the employee is permanently and totally
disabled.
The employee contends that the employer deemed the
3
2050501
employee
to
be
permanently
and
totally
disabled
when
a
committee who administered the pension plan funded by the
employer
hence,
awarded
that
it
him
would
disability-retirement
be
inconsistent
and
benefits
unfair
for
and,
the
employer to assert that the employee is not permanently and
totally disabled for workers' compensation purposes.
In Ex parte First Alabama Bank, 883 So. 2d 1236 (Ala.
2003), our Supreme Court held that judicial estoppel applies
when:
(1)
proceeding
a
party
that
is
takes
a
clearly
position
in
inconsistent
a
later
with
judicial
its
earlier
position; (2) the party was successful in the prior proceeding
so that judicial acceptance of an inconsistent position in a
later proceeding would create the perception that either the
first or second court was misled; and (3) the party seeking to
assert
an
inconsistent
position
would
derive
an
unfair
advantage or impose an unfair detriment on the opposing party
if not estopped.
883 So. 2d at 1244-45 (quoting New Hampshire
v. Maine, 532 U.S. 742 (2001)).
In Ex parte First Alabama Bank, the Court noted that the
purpose of judicial estoppel is to protect the integrity of
the judicial system. 883 So. 2d at 1244 (quoting Rand G.
4
2050501
Boyers, Precluding Inconsistent Statements: The Doctrine of
Judicial Estoppel, 80 Nw. U. L. Rev. 1244, 1249-50 (1986)).
The Court also noted that it had adopted the judicial-estoppel
standards set forth in New Hampshire v. Maine in order to
conform to the mainstream of jurisprudence in dealing with the
doctrine of judicial estoppel. 883 So. 2d at 1246.
A majority
of jurisdictions hold that the original position must have
been
asserted
in
a
prior
judicial,
quasi-judicial,
or
administrative proceeding. See 28 Am. Jur. 2d Estoppel § 75
(____).
Prior Alabama law agrees with this requirement.
See,
e.g., Consolidated Stores, Inc. v. Gargis, 686 So. 2d 268
(Ala. Civ. App. 1996), overruled on other grounds, Bleier v.
Wellington Sears Co., 757 So. 2d 1163 (Ala. 2000); and Singley
v. Bentley, 782 So. 2d 799 (Ala. Civ. App. 2000).
Nothing in
the language of Ex parte First Alabama Bank indicates that the
Supreme Court meant to deviate from that requirement; rather,
the
Court
gave
every
indication,
other
than
an
express
adoption of that requirement, that it intended to preserve
that
requirement
as
a
necessary
judicial estoppel.
5
element
for
establishing
2050501
I
believe
the
doctrine
of
judicial
application to the present case.
plan
administrator
decides
estoppel
has
no
The process by which the
whether
to
award
disability-
retirement benefits is not described in the plan itself, and
the employee presented no evidence indicating that the plan
administrator
used
a
judicial,
quasi-judicial,
or
administrative process to reach its decision.
The pension
plan
to
provides
evidence
claim
no
either
of
mechanism
supporting
disability.
The
for
or
the
employer
contradicting
employee
an
presented
present
employee's
no
evidence
demonstrating that the employer had submitted any evidence to
the plan administrator or had taken any position regarding the
employee's disability claim during the determination process.
The plan administrator is a committee comprised of members
appointed by the board of directors of a corporate entity
separate and distinct from the employer.
itself
does
not
constitute
any
sort
of
did
not
Hence, the award
statement
by
the
employer.
In
addition,
inconsistent"
the
position
employer
by
denying
that
take
the
a
"clearly
employee
was
permanently and totally disabled for workers' compensation
6
2050501
purposes, because the prerequisites for receiving disabilityretirement benefits under the plan differ significantly from
the
legal
qualifications
for
receiving
a
permanent-total-
disability award under the workers' compensation laws of this
state.
The employer also did not prevail in the disability-
retirement determination process because the employee received
additional retirement benefits on account of his disability.
Finally, the employee was not prejudiced in the least by the
alleged change of position because he still had the burden of
proving a permanent total disability in this case regardless
of
his
disability-retirement
award.
See
Ellenburg
v.
Walter Res., Inc., 680 So. 2d 282 (Ala. Civ. App. 1996).
Jim
Only
the employer would be prejudiced if the employee's inability
to carry his burden of proof was excused by the mere fact that
he had been awarded disability-retirement benefits.
I
also
contention
write
that
the
specially
to
address
disability-retirement
the
award
employee's
should
be
construed as a conclusive admission by the employer that the
employee is permanently and totally disabled for workers'
compensation purposes.
7
2050501
As the trial court correctly concluded, the employee did
not establish the award was an admission by the employer.
The
trial court found that the employer did not take part in the
disability-retirement
determination
but
that
a
committee
designated by a separate corporate entity awarded the employee
disability-retirement benefits.
That award by the committee
cannot be considered an admission by the employer under Rule
801(d)(2) of the Alabama Rules of Evidence.
Even if it could,
the trial court correctly reasoned that the award could not be
considered
a
conclusive
"judicial
admission"
but,
rather,
amounted merely to an "ordinary admission" that the trial
court could properly consider as only one piece of evidence to
be weighed along with the other evidence. See Liberty Nat'l
Life Ins. Co. v. Daugherty, 840 So. 2d 152, 161 (Ala. 2002)
(discussing
admissions).
the
reason
the
distinction
between
judicial
and
factual
The trial court amply and correctly explained
it
did
disability-retirement
not
give
award.
conclusive
Therefore,
failed to prove any error.
8
effect
the
to
the
employee
has
