Anthony Devero v. North American Bus Industries
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REL: 08/09/2013
REL: 02/28/2014 (as modified on denial of rehearing)
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ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2013-2104
_________________________
2120133
_________________________
Anthony Devero
v.
North American Bus Industries
Appeal from Calhoun Circuit Court
(CV-05-104.80)
PITTMAN, Judge.
Anthony Devero appeals from a summary judgment in favor
of his employer, North American Bus Industries ("NABI"), in an
action in which Devero initially asserted claims purporting to
be outside the scope of the Alabama Workers' Compensation Act,
2120133
§ 25-5-1 et seq., Ala. Code 1975 ("the Act"), but in which
Devero ultimately sought benefits under the Act.
Devero worked as a bus painter at NABI for two years.
In
February 2005, a complaint was filed in the Calhoun Circuit
Court on behalf of Devero and seven other plaintiffs alleging
various tort claims against NABI and two other defendants, PPG
Industries, Inc., and E.I duPont de Nemours & Co.
The
complaint was amended several times thereafter; as of March
2005, the complaint alleged fraud, negligence, wantonness,
failure-to-warn, infliction-of-emotional-distress, and civilconspiracy claims against NABI stemming from the exposure of
the plaintiffs in the workplace to hazardous chemicals.
In
January 2006, the trial court entered an order stating that
the complaint as last amended was
"a hodge-podge of allegations cast in such a way as
to attempt to circumvent the reach of the ... Act.
It is not denied that the claimed injuries to the
various plaintiffs (or those claiming for or through
them) arose out of their employment at [NABI's]
production facility in Calhoun County, Alabama. As
such, it appears that all the claims against NABI
are governed by the exclusivity provisions of th[e]
Act."
The trial court ordered Devero to restructure his complaint to
state claims under the Act and ordered each of the plaintiffs
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to file separate complaints, in essence effecting a severance
of all plaintiffs' claims except Devero's from the action.
Devero filed a new complaint asserting only a claim against
NABI under the Act in which Devero alleged that, during his
employment with NABI, he had been exposed to toxic chemicals,
deadly solvents, and sandblasting and spray-paint particles
that had damaged his internal organs and caused him to develop
pneumoconiosis.
NABI filed an answer, denying all Devero's
allegations.
Following discovery, NABI moved for a summary judgment,
asserting that there was no evidence indicating that Devero
had been exposed to any toxic chemical at work and that he
could not, therefore, establish legal causation so as to
warrant an award of benefits under the Act; NABI also asserted
that there was no evidence indicating that Devero suffered
from any illness or occupational disease related to his
employment and that he could not, therefore, establish medical
causation so as to warrant such an award.
motion,
NABI
submitted
portions
of
In support of its
Devero's
deposition
testimony; the medical records of Devero's personal physician,
Dr. Jose M. Oblena; the records of Northeast Alabama Regional
3
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Medical Center, where Devero had been hospitalized on two
occasions
in
2004;
and
the
application
for
short-term-
disability benefits that Devero had filed while he was working
for NABI.
Devero's responsive filings adduced no other
evidence apart from affidavits from himself and his wife.
The trial court held a hearing on NABI's motion at which
Devero
testified
arguments.
and
the
parties'
counsel
made
legal
On May 2, 2012, the trial court entered the
following judgment:
"This matter came before the court on [NABI's]
motion for summary judgment.
This is a workers'
compensation case in which [NABI] has asserted it is
entitled to a judgment as a matter of law because
there is no evidence of legal or medical causation.
The court has considered [NABI's] motion for summary
judgment, the memorandum of law in support of the
motion for [a] summary judgment, as well as [NABI's]
supplemental evidence offered in support of the
motion for summary judgment.
The court has also
considered [Devero's] response to the motion for
summary judgment as well as the first and second
supplemental response to the motion for summary
judgment.
"The court has considered all the pleadings
filed in support of and in opposition to [NABI's]
motion for [a] summary judgment and has thoroughly
reviewed extensive documents and exhibits offered
into evidence by both parties. The court has also
heard and considered oral arguments by the parties
on [NABI's] motion for [a] summary judgment.
[substituted p. 4]
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"After consideration of all the evidence,
[NABI's] motion for [a] summary judgment is GRANTED.
The court hereby finds there is no genuine issue of
material of fact and [NABI] is entitled to a
judgment as a matter of law."
Devero
filed
a
postjudgment
motion
that
was
denied
by
operation of law, see generally Rule 59.1, Ala. R. Civ. P.,
after which he appealed from the summary judgment.
Before we consider the issues presented by Devero in his
appellate brief, we must first address the threshold matter of
whether this court may properly review the summary judgment in
its current form.
The trial court's judgment contains no
findings of fact or conclusions of law expressly addressing
whether Devero is suffering from an injury or disease that
arose out of and in the course of his employment.
Rule
52(a),
Ala.
R.
Civ.
P.,
expressly
However,
provides
that
"[f]indings of fact and conclusions of law are unnecessary on
decisions of motions under Rules 12 or 56," Ala. R. Civ. P.
(emphasis added).
Notwithstanding the clear language of that portion of
Rule 52(a), this court, at least since Farris v. St. Vincent's
Hospital, 624 So. 2d 183 (Ala. Civ. App. 1993), has purported
to recognize an exception to Rule 52(a) applicable only to
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2120133
summary judgments entered pursuant to Rule 56 in workers'
compensation cases.
In Farris, the two-judge majority opined
that Ala. Code 1975, § 25-5-88, provided that "[a] final
judgment in [such a] case must contain a statement of the law,
the facts, and the conclusions of the trial court," and held
that that requirement applied even to summary judgments.
So. 2d at 185.
624
However, as our opinion in Alpine Associate
Industrial Services, Inc. v. Smitherman, 897 So. 2d 391 (Ala.
Civ. App. 2004), noted:
"§ 25-5-88, Ala. Code 1975, ...
pertinent
part
(emphasis
added
Associate]):
provides, in
[in
Alpine
"'[A worker's compensation] action shall
proceed in accordance with and shall be
governed by the same rules and statutes as
govern civil actions, except as otherwise
provided in this article and Article 2 of
this chapter, and except that all civil
actions filed hereunder shall be preferred
actions and shall be set down and tried as
expeditiously as possible. At the hearing
or any adjournment thereof the court shall
hear such witnesses as may be presented by
each party, and in a summary manner without
a jury, unless one is demanded to try the
issue of willful misconduct on the part of
the employee, shall decide the controversy.
This determination shall be filed in
writing with the clerk of said court, and
judgment shall be entered thereon in the
same manner as in civil actions tried in
the said circuit court and shall contain a
6
2120133
statement of the law and facts and
conclusions as determined by said judge.'
"This language indicates that our Legislature
intends that 'this determination,' i.e., a trial
court's decision entered after a nonjury trial in a
case arising under the Act, should contain 'a
statement of the law and facts.'
".... [T]his court has placed a judicial gloss
on § 25-5-88 so as to require that any final
judgment in a workers' compensation case entered
beyond the initial pleadings, including a summary
judgment, must comply with that portion of § 25-5-88
requiring the trial court to state findings of fact
and conclusions of law. This court's gloss has been
criticized on the rationale that, '[o]n review of a
summary judgment in a workers' compensation case,
the finding of facts would not be conclusive or even
persuasive' on a reviewing court. 2 Terry A. Moore,
Alabama Workers' Compensation § 24:55 (West 1998)."
Alpine Associate, 897 So. 2d at 394-95 (footnote and some
citations omitted).
After considering the language and intent of both § 25-588 and Rule 52(a), we conclude that the time has come to
discard the gloss placed upon § 25-5-88 by the majority in
Farris to which this court, despite authoritative criticism,
has adhered for the two decades since Farris was decided.
Both the Rules of Civil Procedure and the Rules of Appellate
Procedure, taken together, counsel decision of all cases
justly, speedily, and inexpensively on their merits when
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possible, see Rule 1(c), Ala. R. Civ. P., and Rule 1, Ala. R.
App. P. –– an aspiration that Farris and its progeny thwarts
by encouraging sua sponte reversals by our appellate courts
based solely upon noncompliance with a form requirement that
is required of summary judgments in practically no other class
of cases (which reversals, as a practical matter, invite
second,
duplicative
appeals
in
nearly
all
such
cases).
Although we acknowledge that there may be valid reasons in
certain
cases
for
deeming
particular
orders,
including
nonfinal orders pertaining to compensability, to be tantamount
to "determination[s] ... entered after ... nonjury trial[s]"
in cases arising under the Act so as to trigger the findingsand-conclusions requirement, cf. Ex parte Cowabunga, Inc., 67
So. 3d 136, 139 (Ala. Civ. App. 2011), the summary judgment
entered in this case, which is based primarily upon written
submissions of the parties and limited testimony from Devero
at the motion hearing,1 is due to be reviewed on its merits
rather than reversed under Farris and its progeny, which we
1
Limited testimony may indeed be considered by the trial
court in connection with deciding a summary-judgment motion.
See, e.g., Middaugh v. City of Montgomery, 621 So. 2d 275,
279-80 (Ala. 1993) (citing Rule 43(e), Ala. R. Civ. P.).
8
2120133
hereby
overrule
to
the
extent
that
those
cases
are
inconsistent with our decision in this case.
We now consider the arguments advanced by Devero in his
brief on appeal.
In his four-page argument, Devero first
appears to assert that the summary judgment improperly denied
him a "day in court" and that the trial court's failure to
hold a trial or to vacate the summary judgment amounted to
acts outside the scope of that court's discretion.
However,
the sole authorities cited by Devero in support of those
contentions are Shealy v. Golden, 959 So. 2d 1098, 1103 (Ala.
2006), and Eubanks v. Hale, 752 So. 2d 1113, 1122 (Ala. 1999);
those cases are cited solely for the general proposition that
there is no presumption of correctness applicable on appeal
from
a
judgment
entered
by
a
trial
court
based
upon
documentary evidence alone.
Rule
28(a)(10),
Ala.
R.
App.
P.,
mandates
that
the
argument section of an appellant's brief must set out "the
contentions of the appellant/petitioner with respect to the
issues presented, and the reasons therefor, with citations to
the cases, statutes, other authorities, and parts of the
record relied on."
Its purpose "'is to conserve the time and
9
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energy of the appellate court and to advise the opposing party
of the points he or she is obligated to make.'"
Van Voorst v.
Federal Express Corp., 16 So. 3d 86, 92 (Ala. 2008) (quoting
Ex parte Borden, 60 So. 3d 940, 943 (Ala. 2007)).
To that
end,
"'"[i]t
is
well
established
that
general
propositions of law are not considered 'supporting
authority' for purposes of Rule 28." [An appellate
court] will not "create legal arguments for a party
based
on
undelineated
general
propositions
unsupported by authority or argument." Further, it
is well settled that "'[w]here an appellant fails to
cite any authority for an argument, [an appellate
court] may affirm the judgment as to those issues,
for it is neither [that court's] duty nor its
function to perform all the legal research for an
appellant.'"'"
Harris v. Owens, 105 So. 3d 430, 436 (Ala. 2012) (citations
omitted; quoting Allsopp v. Bolding, 86 So. 3d 952, 960 (Ala.
2011), quoting in turn earlier cases).
Devero's argument
falls far short of setting forth anything more than mere
general propositions of law pertaining to standards of review
rather
than
citing
any
pertinent
authorities
mandating
reversal of the summary judgment in favor of NABI on Devero's
claim under the Act.
See Harris, 105 So. 3d at 436-37 (noting
that although petitioning school officials seeking writ of
mandamus
from
appellate
court
10
had
cited
cases
generally
2120133
pertaining to harmless error in administrative proceedings,
those parties had nonetheless violated Rule 28(a)(10) because
they had not cited "any authority that support[ed] their
specific contention that the harmless-error rule would apply
to their failure to comply with the procedures set forth in
the [school's] handbook").
Based on those authorities, we
will not consider Devero's contention that the trial court
erred in entering a summary judgment as to his claim under the
Act.
Devero also contends, in the remaining two pages of his
argument, that the trial court erred in failing to allow him
to proceed on his tort claims purportedly outside the scope of
the Act in which, he says, he asserted the existence of
egregious conduct on the part of NABI and disregard for the
safety and lives of NABI's employees.
Contrary to NABI, we
deem the trial court's January 2006 ruling as a nonfinal
adverse ruling concerning Devero's right to maintain his tort
claims against NABI as a matter of law under Rule 54(b), Ala.
R. Civ. P., and we note that "[o]n an appeal from a judgment
or order a party shall be entitled to a review of any
judgment, order, or ruling of the trial court" (Rule 4(a),
11
2120133
Ala.
R.
App.
P.);
we
thus
perceive
no
procedural
or
jurisdictional impediment to considering Devero's argument,
which draws substantive support from a statement made in
Lowman v. Piedmont Executive Shirt Manufacturing Co., 547 So.
2d 90, 95 (Ala. 1989), to the effect that a claim asserting an
employer's
intentional
tortious
conduct
that
has
been
committed beyond the bounds of the employer's proper role is
not barred by principles of exclusivity endorsed by the terms
of the Act.
That we deem Devero's argument to have been properly
preserved in the trial court and presented in this court does
not, however, reflect any agreement by this court with the
proposition that it has any merit.
Rather, we deem the tort
theories alleged by Devero to be barred by the exclusivity
provisions of the Act, see Ala. Code 1975, §§ 25-5-52 and 255-53, just as we held in Hudson v. Renosol Seating, LLC, 73
So. 3d 1267, 1271 (Ala. Civ. App. 2011), claims asserted by
the plaintiff workers in that case to be barred that had
alleged similar conduct, i.e., that the employer of the
workers had "'intentionally, willfully, negligently and/or
wantonly caused or allowed the [workers] to be subjected
12
2120133
and/or
exposed
to
hazardous
and/or
harmful
chemicals,
substances and/or conditions'" and that the employer had
"fraudulently
made
certain
misrepresentations
or
had
suppressed certain facts" concerning the safety of the factory
and chemicals used therein.
Relying heavily on the binding
authority of Ex parte Progress Rail Services Corp., 869 So. 2d
459 (Ala. 2003), we reasoned:
"Progress Rail ... stands for the proposition
that when an employee's claim is otherwise within
the scope of the Act, the exclusivity provisions
cannot be avoided by the mere expedient of alleging
that the conduct of the employer giving rise to the
claim was willful or intentional. In recognizing
that principle, the opinion in Progress Rail
distinguished Lowman, which was described as
involving an employee's claims of fraud, conspiracy
to defraud, and intentional infliction of emotional
distress against her employer that '[arose] out of
... refusing to allow the injured employee to seek
workers' compensation benefits for her on-the-job
injury' and attempting to coerce that employee to
'"file her disability claim as for an off-the-job
injury."' Progress Rail, 869 So. 2d at 469 (quoting
Lowman, 547 So. 2d at 92).
Progress Rail makes
clear that, regardless of the holding in Lowman that
the exclusivity provisions do not apply to claims
alleging
'"intentional
tortious
conduct
...
committed beyond the bounds of the employer's proper
role,"' they do apply to bar tort claims arising
from 'conduct committed within the bounds of the
employer's proper role.'
869 So. 2d at 470
(emphasis in Progress Rail).
to
"Progress Rail, then, compels judicial attention
the
objective
nature
of
the
particular
13
2120133
transaction or occurrence giving rise to the injury,
and
it
discounts
the
effect
of
subjective
characterizations of the employer's contemporaneous
state of mind.
Accord Harris v. Beaulieu Group,
LLC, 394 F. Supp. 2d 1348, 1356 (M.D. Ala. 2005)
('When the employee's injury is covered under the
Act, the Act does not allow the employee to
circumvent its provisions and seek a tort remedy
based on an assertion that the employer's conduct
was willful.').
When it can objectively be
ascertained that an injury 'aris[es] out of and in
the course of ... employment' (§ 25–5–50[, Ala. Code
1975]) and that the injury is not expected or
intended on the employee's part, pleading or proof
of an intent on the part of the employer to injure
will not remove the case from the scope of the Act
and its exclusivity provisions.
As Judge Moore
correctly surmised in his treatise on workers'
compensation law, after Progress Rail, 'it should be
assumed
that
Alabama
law
no
longer
allows
intentional fraud actions against employers,' at
least when such a fraud claim is 'premised on a
covered injury caused by the willful or intentional
conduct of the employer.' 2 Terry A. Moore, Alabama
Workers' Compensation § 20:18 (West 2010 Supp.).
"In this case, at bottom, the workers have
alleged that their injuries stem from conduct,
statements, or silence of the corporate defendants
as to workplace conditions. Such conduct, even if
proved, would fall within the employer's role under
the Act: to 'employ[] another to perform a service'
in exchange for wages. Ala. Code 1975, § 25–5–1(4).
The workers in this case allege that they have
suffered bodily injuries by virtue of exposure to
hazardous conditions in the workplace, not that they
have been injured by means of coercion occurring
outside the scope of employment (as was alleged to
have occurred in Lowman, in which the gravamen of
the fraud claim stemmed from postinjury coercive
practices).
...
Properly understood, the gloss
placed upon Lowman and its progeny by cases that
14
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broadly state that intentional-tort claims against
employers fall outside the scope of the Act are best
viewed through the lens that Progress Rail provides,
and we do not hesitate to conclude that the workers'
claims against the corporate defendants in this case
fall within the scope of the Act and its exclusivity
provisions."
73 So. 3d at 1273-74.
Based upon the foregoing facts and authorities, we affirm
the trial court's judgment in favor of NABI.
AFFIRMED.
Thompson, P.J., and Thomas, Moore, and Donaldson, JJ.,
concur.
15
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