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)
242-4621), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2006-2007
Stanley B. Johnson
Jefferson Smurfit Corporation
Appeal from Escambia Circuit Court
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.
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.
MOORE, Judge, concurring specially.
I concur in the decision to affirm the judgment of the
trial court denying a claim for permanent-total-disability
totally disabled but, instead, had sustained a 33% permanent
partial disability due to a work-related shoulder injury.
employee himself testified that he was capable of working,
even arguing at one point that he could have returned to work
employer") as an electrician.
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
The employee contends that the employer deemed the
committee who administered the pension plan funded by 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
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
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.
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.
of jurisdictions hold that the original position must have
administrative proceeding. See 28 Am. Jur. 2d Estoppel § 75
Prior Alabama law agrees with this requirement.
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).
the language of Ex parte First Alabama Bank indicates that the
Supreme Court meant to deviate from that requirement; rather,
adoption of that requirement, that it intended to preserve
application to the present case.
The process by which the
retirement benefits is not described in the plan itself, and
the employee presented no evidence indicating that the plan
administrative process to reach its decision.
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.
Hence, the award
permanently and totally disabled for workers' compensation
purposes, because the prerequisites for receiving disabilityretirement benefits under the plan differ significantly from
disability award under the workers' compensation laws of this
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
Walter Res., Inc., 680 So. 2d 282 (Ala. Civ. App. 1996).
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.
construed as a conclusive admission by the employer that the
employee is permanently and totally disabled for workers'
As the trial court correctly concluded, the employee did
not establish the award was an admission by the employer.
trial court found that the employer did not take part in the
designated by a separate corporate entity awarded the employee
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
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)
The trial court amply and correctly explained
failed to prove any error.