RECENT CIVIL DECISIONS
WINTER 2003-04

BY DAVID MARSH and TOM POWELL

The Supreme Court of Alabama has issued some decisions in the past few months that were fair-minded and well-reasoned. The better news for injured people has come in decisions that addressed mental health records of civil litigants; uninsured/underinsured motorist coverage for workers; punitive damages. The Court found that the statutory psychotherapist privilege is not waived by filing a suit claiming mental anguish. The Court also held that nothing in the Uninsured Motorist statute or the workers' Compensation Act extends the "exclusive remedy" of the Compensation Act to an insurer that writes coverage for the employer's vehicles. Furthermore, the Court has not been quick to remit punitive damages - in a broad range of cases.

We also discuss some decisions I which a majority of the court has relied upon what it describes as the "narrow language" of Ala. Code §25-5-11.1 (the statute that provides a remedy for retaliatory discharge that occurs after workers' compensation benefits are sought) to fashion heightened evidentiary burdens upon plaintiffs.

The details of these decisions are presented below.

Ex parte Western Mental Health Center, Ms. 1011990 & 1021481 (Ala. Dec. 30, 2003) - Two Jefferson County circuit judges ordered the Western Mental Health Center to produce to civil defendants in two separate cases its records pertaining to civil plaintiffs who had made claims including mental anguish. One of the cases arouses out of an assault and battery at the Bright Star Restaurant in Bessemer and one arose out of a car wreck. The mental health center petitioned for writs of mandamus in both cases.

The Supreme Court's per curiam opinion granted the petition in each case and issued writs directing the judges to vacate their orders. JUSTICES HOUSTON and JOHNSTONE concurred in the opinion; the other members of the Court concurred in the result. The opinion said:

"We hold that by merely alleging mental anguish and emotional distress the plaintiffs in these cases have not waived the psychotherapist-patient privilege conferred by § 34-26-2, Ala. Code 1975."

The opinion noted that there are only five recognized exceptions to psychotherapist-patient privilege: (1) where, in a child custody matter, the mental state of one of the parents is at issue and a necessary consideration; (2) where a criminal defendant raises the defense of insanity; (3) communications relevant in proceedings to hospitalize a patient for mental illness; (4) communications made during a court-ordered mental examination of a party or witness; and (5) communications concerning a breach of duty arising out of the psychotherapist -patient relationship.

COMMENTARY: This is an excellent and well reasoned decision. Hopefully, this ruling will shut the door once and for all on defendants who wish to engage in the worst kinds of fishing expeditions (swinging a gill net through a person's troubled mental history, in hopes of finding some improper basis for avoiding justice.

Watts v. Sentry Insurance, Ms. 1020885 (Ala. Sept. 5, 2003) - Watts was driving a vehicle owned by his employer, Johnson Controls, when a trailer being towed by Rupe, an employee of Dwight's Lawn & Garden Equipment, came loose from the towing vehicle and crossed the highway, striking the vehicle Watts was driving and injuring him. Watts received workers' compensation benefits from Johnson Controls. Watts sued Rupe and Dwight's for causing the collision and he also sued Sentry Insurance, which provided underinsured motorist coverage under a policy issued to Johnson Controls. Watts did not sue Johnson Controls.

Sentry Insurance moved for summary judgment, essentially contending that it enjoyed immunity from the UIM claims due to exclusive- remedy provisions of the Alabama Workers' Compensation Act. The trial court granted the motion and Watts appealed.

In a 5-0 opinion, the Supreme Court reversed. JUSTICE HOUSTON's opinion for the Court found:

"The issue this case presents is whether an employee who is receiving workers' compensation benefits from his employer for injuries he sustained in a motor vehicle accident that occurred while the employee was driving a vehicle belonging to the employer can recover underinsured-motorist benefits from the employer's automobile liability insurer (which is not the employer's workers' compensation insurer), if the employee's injuries were proximately caused by the negligence or wantonness of an underinsured driver, who was not a co-employee?"

The Court answered that question with a "Yes," noting:

"The Alabama Workers' Compensation Act […] specifically provides that an injured employee who is receiving workers' compensation benefits can file an action against a third party […] whose negligence or wantonness proximately caused the injuries for which the employee is receiving workers' compensation benefits. § 25-5-11. Rupe was a third party against whom Watts could bring an action pursuant to § 25-5-11. Sentry was contractually obligated to pay Watts, its own insured, those damages, if any, over and above the damages Rupe's own liability insurance carrier would pay for Rupe's alleged negligence or wantonness in causing Watt's injuries. Until a trier of facts ascertains Watt's damages, if any, whether Rupe was in fact an underinsured motorist is unknown. That, however, does not entitle Sentry to a summary judgment. The mere fact that the trier of fact may find against a plaintiff on the issues of liability or damages in an action does not entitle the defendant to a summary judgment. Sentry is not being sued because of negligence or wantonness on the part of Watt's employer or any entity protected from such action by § 25-5-53. Nothing in the Alabama Code or Alabama case law shelters Sentry from its liability for underinsured-motorist coverage under the facts of this case."

Frazier v. St. Paul Insurance Company. Ms. 1020505 (Ala. Oct 10, 2003) - Frazier was driving a truck owned by his employer, Charter Communications, when Mullins drove his vehicle in front of the vehicle Frazier was driving, causing injuries to Frazier. Frazier qualified for workers' compensation benefits because his injuries occurred within the line and scope of his employment with Charter. Frazier reached a settlement with St. Paul, which provided workers' compensation benefits to Charter. Frazier later sued Mullins for causing the collision and he also sued St. Paul, which provided UM and UIM motorist benefits for Charter's vehicles.

St. Paul moved for summary judgment, contending that the rulings in Auto-Owners Ins. Co. v. Holland, 832 So. 2d 76 (Ala. Civ.App.2002), and State Farm Mut. Auto. Ins. Co. v. Carlton, Ms. 2991014 (Ala. Civ. App. May 11, 2001), precluded Frazier from receiving workers' compensation benefits and UM/UIM benefits for the same injury. St. Paul further contended that such a recovery would be "double recovery" for Frazier. The trial court granted the motion and Frazier appealed.

In a per curiam opinion, seven members of the Supreme Court reversed (JUSTICE SEE concurred in the result). The opinion said: "Frazier appeals, asserting that the cases relied upon by St. Paul were incorrectly decided by the Court of Civil Appeals. We agree with Frazier."

The Supreme Court noted that, in Ex parte Carlton, Ms. 1001781 (Ala. April 11, 2003), "this Court rejected the rationales of both cases now relied upon by St. Paul. Thus, neither Auto-Owners, supra Nor State Farm, supra, supports St. Paul's argument."

In reaching its result, the Court also found:

"[T]he legislative intent behind the exclusive-remedy provision of the Workers' Compensation Act was to provide a measure of protection to both employers and employees by providing complete immunity to employers and limited immunity to certain other entities and individuals so closely affiliated with that employment relationship as to be an essential aspect of the workers' compensation scheme in exchange for a guarantee of compensation to an injured employee. This language makes clear that the exclusivity-of-remedy provision found in the Workers' Compensation Act does not apply to the world at large.

The Court found that, in Carlton, the employee who sued for UM benefits was a passenger in his employer's vehicle that was being driven by a fellow employee, who caused the collision by turning in front of an oncoming vehicle. On those facts, the employee in Carlton was unable to recover UM benefits due to the co-employee immunity provision of the Workers' Compensation Act working in operation with the requirement of the UM statute, that the injured party must be "legally entitled to recover" from the operator of the uninsured vehicle.

Thus, because Carlton could not sue is co-employee for his negligent or wanton act of turning in front of the oncoming vehicle, Carlton would never be "legally entitled to recover" from his co-employee as the operator of the presumptively uninsured vehicle.

The Frazier opinion continued:

"However, Ex parte Carlton did not hold simply that an injured employee who receives workers' compensation benefits is barred, under every circumstance, from recovering any further compensation or benefits. […] The exclusivity of the workers' compensation remedy applies only to the employer, officers, directors, agents servants, or employees of the same employer and to the workers' compensation insurance carrier and compensation service companies of the employer or any officer, director, agent, servant, or employee representative thereof. See §25-5-14, Ala. Code 1975.

"This Court recognized this principle again in the recent case of Watts v. Sentry Insurance […]. In Watts, this Court noted that the Alabama Workers' Compensation Act specifically provides that an injured employee who is receiving workers' compensation benefits can sue a third party (except for certain third parties) whose negligence or wantonness proximately caused the injuries for which the employee is receiving workers compensation benefits. […] [C]learly the exclusivity provision of the Act does not bar recovery from any and all sources other than the employer, as St. Paul argues.

"[…] We note that Frazier has received workers' compensation benefits for the injuries he sustained in the accident. Because this case does not involve a negligent or wanton co-employee, but rather a negligent third party, the co-employee immunity provision of the Workers' Compensation Act does not apply. Additionally, St. Paul, in its role as the automobile insurance carrier for Charter, is not one of those entities or individuals to whom the exclusive-remedy provision of the Workers' Compensation Act was intended to apply."

COMMENTARY: The Watts and Frazier decisions should lay to rest many of the specious arguments that were raised by UM/UIM carriers who read too much into the Holland and Carlton rulings. If the presumptively uninsured or underinsured motorist was not a co-employee (or similar entity) of the injured party, nothing in the Workers' Compensation Act bars recovery against the employer's insurance carrier for the UM/UIM benefits provided by contract. And, as Frazier points out, the employee can recover benefits from his employer's UM/UIM carrier, even if that same company also is the carrier that provides the employer's workers' compensation coverage.

Tyson Foods, Inc. v. McCollum, Ms. 1020829 (Ala. Sept. 12, 2003) - McCollum injured her finger while working on the bagging line at Tyson's chicken processing plant. Tyson paid McCollum's medical bills, plus $3,000 in other workers' compensation benefits related to her injury. McCollum returned to work two months after her injury, but she was placed in the plant's laundry room so that she could undergo physical therapy three times a day. A month later, a Tyson nurse asked McCollum if she was ready to return to regular work, and she replied that she was, so McCollum then was placed in the marinated raw breaded ("MRB") department. Her new job was to check chicken that had been processed into "fingers" and placed on a conveyor belt. This department had a cold work environment, as did the bagging line where McCollum worked at the time of her injury.

After three or four days at her new position McCollum reported to Phillips, who was Tyson's human resource manager, that the fast-moving fingers on the conveyor belt made her dizzy (an apparently common problem for workers in that position). Phillips then told McCollum that Tyson had no other position available for her, and suspended her without pay for three days. McCollum later provided Phillips with a doctor's excuse, stating that she could not work on fast-moving production lines involving small products. Phillips told her that excuse was insufficient and asked McCollum to obtain clarification that she could not work on the line due to "persistent vertigo."

Three days later, Tyson's nurse told McCollum to come back to work and she did, with her doctor's excuse, and she was placed at her own request as a checker on the bag line in the MRB department with 12 other employees. Again, McCollum was in a cold work environment. After working in this new position for a time, McCollum tried a job in the deboning department, but then returned to the MRB line at her own request.

Approximately 18 months after she had returned to work from her injury, McCollum became sick with sneezing and coughing and a fever- an illness that had nothing to do with her finger injury. She went to the plant nurse and then she told her supervisor, Carroll, that she was ill and needed to go home. Carroll told her that he first needed to get Smith, a superintendent, and Carroll moved McCollum to an area where the air did not blow on her. Smith came and stood next to McCollum on the line and, according to McCollum, told her that he would not authorize her leaving and that if she did leave it would be unauthorized. Shortly thereafter, Smith told her that if she left she would lose her job. Just then, the power in the plant failed due to a storm and Smith went to check on the outage. While Smith was gone, McCollum told Carroll that she was leaving, Carroll replied "okay," and McCollum left the plant.

When Smith returned and was told that McCollum had left, he completed a report in which he stated that she had "walked off the job" and that she was "not eligible for rehire." Later, when McCollum returned to the plant to pick up her last paycheck, she was asked to complete an exit interview form and to state on the form that she had quit. McCollum refused to do so, insisting that she had been fired. She was then told by Tyson's human resources manager that Smith had no authority to fire her and firing her was the wrong thing to do. McCollum replied that she did not wish t work any further for Tyson because she was frightened by the harassment she claimed to have experienced.

McCollum later sued Tyson for retaliatory discharge pursuant to Ala. Code § 25-5-11.1. A jury returned a verdict in favor of McCollum and Tyson appealed.

In a 5-3 decision, the Supreme Court reversed and remanded, finding that the trial court erred in denying Tyson's postjudgment motion for judgment as a matter of law. JUSTICE HOUSTON's opinion for the majority, which was joined by JUSTICE SEE, BROWN, HARWOOD and STUART, made a note of the fact that "It is undisputed that Smith was aware that McCollum had previously sustained an injury at work, but he claimed that he was unaware that she had instituted or maintained an action or had even filed a claim for workers' compensation benefits."

The majority emphasized that § 25-5-11.1 requires evidence that the plaintiff was terminated solely because the plaintiff had instituted or maintained an action against the employer to obtain workers' compensation benefits. In this case, the majority said, it was undisputed that McCollum did not file or maintain an "action" for benefits; but that in McClain v. Birmingham Coca-Cola Bottling Co., 578 So. 2d 1299 (Ala. 1991), "we interpreted § 25-5-11.1 as covering even the filing of a claim for workers' compensation benefits."

It is clear, the majority said, that a suit brought under § 25-5-11.1 "cannot be based merely on facts that show the plaintiff was terminated at some point after that plaintiff had filed a claim for or received workers' compensation benefits." (citing Haden v. Bruno's, Inc., 588 So. 2d 874 (Ala. 1991). The majority further explained:

"Instead, "§ 25-5-11.1 demands that there be specific knowledge of the plaintiff's claim for benefits on the part of the one who terminated the plaintiff, and that that knowledge be the sole motivating force behind the termination. There is no room in the statute for a generalized "imputation" of such knowledge throughout a company or other entity; rather, in order to establish a prima facie case, the plaintiff must demonstrate, by substantial evidence, a direct and distinct casual link between one having knowledge of the plaintiff's workers' compensation claim and the termination."

While the majority recognized that many facts in this case were in dispute, some of the facts essential for making out a prima facie case " are undisputed and are fatal to McCollum's cause of action." Chief among these undisputed facts were: (1) Smith had no knowledge that McCollum had a workers' compensation claim; and (2) there was no evidence showing that Smith's termination of McCollum had anything to do with McCollum's having received workers' compensation benefits. The majority noted that, "[w]hile Smith may have had knowledge of McCollum's on-the-job injury, it is neither necessary nor prudent, on that basis alone, and to impute to Smith knowledge of McCollum's filing of a workers' compensation claim."

"Simply put," the majority concluded, "there is no substantial evidence of a direct and distinct casual link between one having knowledge of the plaintiff's workers' compensation claim and the termination."

JUSTICES LYONS, JOHNSTONE and WOODALL dissented. JUSTICE JOHNSTONE's dissenting opinion noted that the evidence showed Smith had terminated McCollum" on the ground that she went home early because she was sick" and that "such a termination violated company policy and that Tyson did not terminate other employees on the same ground." Further, the dissent found: "The claim by Tyson that the plaintiff's employment ended solely because she voluntarily quit is disputed by the plaintiff's substantial evidence to the contrary. Tyson offers no other cause or reason for the termination.

"Tyson admits that, at the time the plaintiff's employment ended, David Smith knew she had suffered the on-the-job injury. Because factory workers who are injured on the job rarely do not claim workers' compensation, Smith's position as processing superintendent with authority to terminate employees, together with his knowledge of the plaintiff's on-the-job injury, support a reasonable inference that Smith knew or deduced that the plaintiff had filed a workers' compensation claim."

Coca-Cola Bottling Co. v. Hollander, Ms. 1020520 (Ala. October 31, 2003) - Hollander worked out of the Florence plant of Coca-Cola Bottling Co. Consolidated ("CCBCC"), delivering vending machines and coolers. He was injured on August 27 when a fully loaded vending machine weighing 700-1000 pounds fell on him while he and a co-worker were moving it into a school in Tennessee. Hollander's legs were pinned under the machine for five to ten minutes until several people were able to lift it off. Hollander and his co-worker continued to deliver and retrieve machines that day. Later, while Hollander was using a forklift to load a machine onto his truck for delivery the next day, the machine fell off the forklift.

Hollander reported the incident to his supervisor, Talley, on the day of the incident, telling him that he had sustained a cut on his leg but he did not require medical treatment. Talley reported the incident to CCBCC's claims administrator, which completed a first report of injury.

On August 30, Hollander made two visits to a Dr. Sockwell, complaining of stress and shortness of breath. He also left Talley's office that day, stating "I can't do this." Dr. Sockwell's notes concerning the two visits mentioned nothing about Hollander's leg injuries of August 27. On August 31, Dr. Sockwell gave Hollander a work-release slip excusing him from work for the period August 31 through September 12.

On September 1, Hollander visited a bone and joint clinic approved by CCBCC for work-related injuries, where Hollander was seen by Dr. Nichols for complaints of ankle and knee pain resulting from the August 27 incident. Dr. Nichol's did not find it necessary to excuse Hollander from work. Although Hollander's single visit to Dr. Nichols was paid for by worker's compensation benefits arising out of the August 27 incident.

On September 7, CCBCC's plant manager, Clayton, learned for the first time that Hollander was seeking workers' compensation benefits for a heart condition and stress, for which Dr. Sockwell had treated him on August 30 and 31. Clayton informed the claims administrator of Hollander's claim and completed a first report of injury concerning the heart condition and stress. The claims administrator later determined that the heart condition and stress were not compensable.

According to Hollander, he returned to see Dr. Sockwell on September 8. Although Dr. Nichol's office notes reflected that he also saw Hollander on September 8, Dr. Nichols later recanted those notes and testified that he only had a telephone conversation with Hollander on that date. However, Dr. Nichols testified that on that date Hollander asked him to "back-date" an excuse from work on account of the August 27 injury because, Hollander told him, CCBCC would not accept an excuse from the non-authorized Dr. Sockwell.

Dr. Nichol's notes made their way from the clinic to the claims administrator and eventually to Clayton at the CCBCC. Clayton made a determination at that time that Hollander's request to Dr. Nichols for the "back-dated" excuse constituted an act of dishonesty. On September 13, Hollander returned to work and on September 14, Talley and Clayton met with Hollander and informed him that he was being terminated for attempting to have Dr. Nichols "back-date" the excuse.

Hollander filed suit pursuant to Ala. Code § 25-5-11.1 and a jury awarded him $150,000 in compensatory damages and $250,000 in punitive damages. The trial court denied CCBCC's post-judgment motions and it appealed.

In a per curiam decision, the Supreme Court reversed and remanded, finding that the trial court erred in denying CCBCC's post-judgment motion for judgment as a matter of law. JUSTICES HOUSTON, SEE AND BROWN concurred in the per curiam opinion and JUSTICES HARWOOD, WOODALL and STUART concurred in the result. The per curiam opinion noted that.

"Clayton testified that the sole reason Hollander's employment was terminated was for dishonesty., based on Dr. Nichols notes indicating that Hollander had attempted to get Dr. Nichols to backdate the work-release slip." Observing that § 25-5-11.1 provides "narrow language" that avoids the employment at will doctrine, the per curiam opinion reiterated that §"25-5-11.1 requires that knowledge of the employee's filing of a workers' compensation claim be the sole motivating force behind the termination of employment."

Reviewing the evidence, the per curiam opinion rationalized: " Hollander's prima facie case is weak. His only evidence is circumstantial. His argument is that because he had received satisfactory work evaluations and because his termination occurred close in time to his filing of a workers' compensation claim. CCBCC must have terminated his employment because he filed a workers' compensation claim. However, mere closeness in time typically is not sufficient evidence of a retaliator discharge. [citations omitted] Close temporal proximity between the claim and the termination must be so coincidental as to raise an inference that the claim caused the termination. [citations omitted] The alleged dishonesty occurred in conjunction with the claims process itself; therefore, it was not coincidental that CCBCC terminated Hollander's employment claim close in time to his filing of a workers' compensation claim.

"As this Court stated in Alabama Power Co. v. Aldridge, supra: '[I]f there is uncontradicted evidence of an independently sufficient basis for the discharge then the defendant is entitled to a judgment as a matter of law.' […] That 'independently sufficient basis' need not be the sole basis. It must simply be a legitimate basis for the termination.

" Even if we were to assume that Hollander had made a prima facie case against CCBCC, Hollander's claim fails. Once Hollander presented a prima facie case that his employment was terminated because he had filed a workers' compensation claim, CCBCC was entitled to present evidence indicating that there was another reason for his termination, which it did by presenting evidence that it terminated Hollander for dishonesty.

"The evidence in the record shows no casual connection between Hollander's filing of a workers' compensation claim and the termination of his employment. Hollander presented no evidence indicating that CCBCC used dishonesty as a pretext for terminating employees who filed workers' compensation claims […] Therefore, CCBCC's stated reason for terminating Hollander's employment precludes a finding that the fact that he filed a workers' compensation claim was the 'sole' cause of his termination."

JUSTICE LYONS wrote a five-page dissent, in which he took the majority to task for essentially substituting its view of the evidence for that of the jury. JUSTICE LYONS observed that the jury in Aldridge "had no basis for disbelieving the reason the employer offered for discharging the employee." Here, he wrote:

"The resolution of this case turns upon whether the evidence submitted by CCBCC concerning its stated grounds from discharging Hollander is weak or equivocal, allowing the jury to disbelieve it.

"[In Tyson Foods v. McCollum], I concluded that the jury in that case was entitled to disbelieve [the employer's stated reason for termination] in light of the undisputed evidence that the employee's injury resulted in the loss of a part of a finger.

"We are presented in this case with the same question - what evidence is necessary to give rise to a jury question when the employer's evidence, if believed, is fatal to the employee's claim. The jury had before it evidence from which it could conclude that CCBCC's documentation of Hollander's injury had been falsified or, at the very least, was inaccurate and incomplete. The jury also had before it evidence that Hollander's superiors at CCBCC had a negative attitude toward him after his injury. The majority accepts CCBCC's right to take at face value a note from Dr. Lee Nichols, a physician at the medical clinic used by CCBCC, stating that Hollander had asked him to backdate, a work-release slip, giving rise to CCBCC's alleged sole basis for discharging Hollander. […]

"The evidence before the jury indicated that the same doctor's note dealing with Hollander's alleged request for a backdated work-release slip also indicated that Dr. Nichols had performed a physical examination of Hollander on that date, which Dr. Nichols subsequently recognized was erroneous in view of the evidence indicating that Hollander's contact with Dr. Nichols on that occasion was by telephone. When coupled with Hollander's testimony in which he denied making a request for a backdated work-release slip, this rather remarkable error in Dr. Nichols's note brings into question the credibility of Dr. Nichols's entire testimony, including his testimony that he was unaware of any relationship between CCBCC and the clinic he was employed by and his lack of knowledge of any of the individuals at CCBCC who were accused of participating in Hollander's discharge. Whether the discrepancy in the note containing observations about a physical examination that never took place was simply an innocent oversight or part of a conspiracy between CCBCC and its medical clinic to create a false medical record was a jury question.

"If the jury rejected Dr. Nichols's testimony and took into account the evidence concerning CCBCC's inaccurate and incomplete handling of Hollander's claim, it possible falsification of records, and the negative attitude Hollander's superiors had toward him after his injury, then the jury was entitled to conclude that CCBCC procured a falsified note and use it as a pretext for firing Hollander, thus establishing that CCBCC knew that Dr. Nichols's allegation that Hollander had asked him to backdate a document was groundless."

JUSTICE JOHNSTONE's dissent first noted that the per curiam opinion had failed to state the evidence in accord with the applicable standard of review, i.e., "in a light most favorable to" Hollander. Further, he said:

"The record in this case contains substantial evidence that the defendant-employer discharged the plaintiff solely because he claimed worker's compensation and that the defendant-employer falsified its records and reports of the plaintiff's injury and claim, first, for the purpose of defeating his claim and, second, as a pretext for discharging him."

Wal-Mart Stores, Inc. v. Hepp, Ms. 1012237 (Ala. Nov. 21, 2003)- Hepp worked as the manager in a Wal-Mart "tire and lube express" service center. Hepp hurt his back and underwent surgery, then filed a workers' compensation action against Wal-Mart which he later settle with a trial court's approval.

On the very same day that Hepp settled his workers' compensation claim, Wal-Mart's district manager, Baggett, received a report that Hepp had dispensed freon into his own car and a vehicle belonging to an acquaintance without charging a fee for the service. Two days later, Hepp was terminated for violating Wal-Mart policies by performing work that was not allowed, failing to write up the service work and performing service work on a personal vehicle.

Following his termination, Hepp applied for unemployment compensation benefits which the Department of Industrial Relations ("DIR") denied. Hepp then appealed that determination, alleging that he had been terminated because he had filed a workers' compensation claim against Wal-Mat that he recently had settled. The appeals referee conducted a hearing and later determined that Hepp had been discharge for "misconduct connected with his work" by violating Wal-Mart's policies. The referee awarded Hepp reduced, rather than full, unemployment benefits and Hepp did not appeal that decision.

Between the time of the hearing and the issuance of the referee's decision, Hepp filed a retaliatory discharge action against Wal-mart in the circuit court pursuant to §25-5-11.1. Wal-Mart moved for summary judgment on the basis that Hepp was barred by the doctrine of collateral estoppel from relitigating the reason underlying his termination, which the DIR referee already had determined was misconduct connected with his work. The trial court denied Wal-Mart's motion and Wal-Mart took an interlocutory appeal.

JUSTICE BROWN's opinion for a 7-0 Supreme Court reversed and remanded, agreeing that the doctrine of collateral estoppel precluded Hepp's making out a prima facie case of retaliatory discharge. The Court found that this case was virtually indistinguishable from Wal-Mart Stores, Inc. v. Smitherman, 743 So. 2d 442 (Ala. 1999), a case in which the Court had found that the DIR's determination that the employee was terminated for misconduct (in that case, making a "profane and derogatory remark about a district manager") collaterally estoppel the employee from proceedings with a retaliatory discharge action pursuant to § 25-5-11.1

In both Smitherman and Hepp's case, the Court said, the employee would be unable to prove that Wal-Mart's proffered reason ("misconduct") for terminating the employee was not the true reason for the termination. Although Hepp argued that the DIR had only determined Wal-Mart's "reason" for terminating him and not Wal-Mart's motivation," the Court found that was "a distinction without a difference. The issue decided by the appeals referee was whether Hepp was terminated either for misconduct or for some other reason […] [T]he referee, in finding that Hepp had been discharged because of misconduct, necessarily rejected Jepp's claim that he was terminated in retaliation for filing the workers' compensation action."

COMMENTARY: The Court's decision in Hepp makes sense and follows the law as it has existed in Alabama for some years. However, we are troubled by the majority decisions in McCollum and Hollander because they appear to evade two long-settled rules in order to reach their results. Those are: (Rule One) the Supreme Court is not at liberty to rewrite statutes [Wal-Mart Stores, Inc. v. Patterson, 816 So. 2d 1, 6 (Ala. 20011); and (Rule Two) it is the function of the jury to weigh conflicting evidence and inferences, and to determine the credibility of the witnesses [Breland v. Ford, 693 So. 2d 393, 397 (Ala. 1996)]. The Court appears to have violated Rule One by implicitly rewriting § 25-5-11.1 to require the plaintiff to prove -by "clear and convincing"evidence - that the employer's asserted reason for termination was a pretense. If the legislature had intended for the "clear and convincing" standard to apply, it presumably would have said so in writing the statute; but it did not do so. Because the Court was not at liberty to superimpose the "clear and convincing" evidentiary standard, the Court's review of the evidence presented by was limited to applying the "preponderance of the evidence" yardstick. The Court appears to have violated Rule Two by overruling the juries' determinations in McCollum and Hollander with respect to the relative weight of the conflicting evidence and inferences, as well as the credability of the witnesses (especially with respect to Dr. Nichols's evidence in the Hollander case).

For present purposes, the better rule for a lawyer handling a § 25-5-11.1 case may be to point out to the court that the plaintiffs' claims in McCollum and Hollander suffered from failure of proof - which they obviously did-and to ferret out a more fact-filled, prima facie case.

If your client's case involves punitive damages or, especially, the issue of whether a remittitur of punitive damages is appropriate, you should closely examine these four recent decisions:

Akins Funeral Home, Inc. v. Miller, Ms. 1020198 & 1020224 (Ala. Sept. 26, 2003) - The jury awarded compensatory damages totaling $650,000 and punitive damages totaling $300,000 in a case where the plaintiffs claimed that the defendant funeral home had cremated the wrong body. The plaintiffs were family members who had not wanted their 19-year-old relative cremated; they first learned that the funeral home had grievously erred when -at the funeral with 400 mourners present - the casket was opened to reveal that it did not contain the remains of their relative. Eight members of the Court concurred in RETIRED JUSTICE MADDOX's opinion that found no good reason to reduce the emotional distress damages or to remit the punitive damages awarded by the jury.

Southern Pine Elect. Coop. V. Burch, Ms. 1020066 (Ala. Oct. 24, 2003) - The jury awarded $20,000 in compensatory damages and $75,000 in punitive damages in a case where the plaintiff claimed that the defendant had wrongfully cut off electrical service to his house trailer. JUSTICE WOODALL's opinion for seven members of the Court (JUSTICE SEE dissented without opinion) declined to reduce the emotional distress damages - consisting of $19,000 - due to the length of the "deprivation" in this case and also refused to remit the punitive damages, due to "the complete absence of a reasonable pre-termination inquiry" by the utility and its post-termination conduct.

Harrelson v. R.J., Ms. 1012233 (Ala. Nov. 7, 2003) -R.J. allowed her 15-year old daughter to spend the night with her 15-year old friend. The friend lived with her mother and stepfather, Harrelson. R.J. later sued the Harrelsons, alleging that Mr. Harrelson assaulted and battered her daughter and intentionally inflicted emotional distress by sexually molesting her. Mr. Harrelson was tried and convicted in the criminal court for sexual abuse in the second degree, a Class A Misdemeanor. The jury in R.J.'s civil action found against Mr. Harrelson and awarded compensatory damages totaling $15,000 and punitive damages totaling $75,000. JUSTICE BROWN's opinion for a 5-0 Court affirmed, finding that Harrelsom had failed to provide any legal basis for his contention that a five-to-one "ratio" in this case was excessive.

Mobile Infirmary Medical Center v. Hodgen, Ms. 1011932 (Ala. Oct. 31, 2003)- Hodgen was in his second day of recovering from open-heart surgery when he was given five times as much digoxin as his doctor had prescribed for him by a Mobile Infirmary "nurse" working in the ICU who had never passed her nursing licensing examination. Hodgen suffered cardiac and respiratory arrest and later was revived, but he sustained severe organ damage that required surgery to remove parts of his intestines and amputation of his right leg. Hodgen filed suit and the jury found against the Mobile Infirmary and awarded him $2,250,000 in punitive damages and compensatory damages. The trial court consulted with both parties and later entered judgment in that amount. Of critical importance, the lawyer for Mobile Infirmary assured that trial court that the verdict was a good verdict, before the jury was discharged. The trial court denied Mobile Infirmary's post-judgment motion for remittitur, on the basis that Hodgen had produced evidence showing that he had incurred $1,600,000 in compensatory damages. Mobile Infirmary appealed.

The Supreme court's 42-page per curiam opinion, in which JUSTICES HOUSTON, SEE, BROWN, and STUART concurred, ultimately affirmed, conditioned upon a remittitur of the punitive-damage award to $1,500,000. In reaching that result, those four members of the Court rejected Mobile Infirmary's argument that the punitive damages awarded could not be sustained in the absence of any compensatory damages being awarded, but announced a "new rule" to cover circumstances where (as here) the jury has been informed that the plaintiff's medical bills have been paid from a collateral source. In this case, the jury was informed that virtually all of Hodgen's past and future medical expenses would be covered by Medicare and Blue Cross.

The new rule carved out in the per curiam opinion said:

" We are here presented with an opportunity in a proper case to apply the holding of [Life Ins. Co. of Georgia v. ] Smith [, 719 So. 2d 797 (Ala. 1998)] addressing compensatory damages that could have been awarded, in the context of the renewed vitality of §6-5-545, which abrogates the collateral-source rule. In such situations, a special interrogatory should be propounded to the jury that gives the jury the opportunity to state the amount of compensatory damages it would have awarded, but did not so award because of the evidence of the availability of compensation to the plaintiff from a collateral source. Armed with such information, the trial court can apply the cap set forth in §6-11-21(d) by determining 'the compensatory damages of the party claiming punitive damages.'

"Requiring an interrogatory that gives the jury the opportunity to state the amount of compensatory damages that it would have awarded, but did not because evidence was presented that the plaintiff had available compensation from a collateral source, avoids the problems presented by a trial court's making such finding in instances, such as here, where causation is in dispute."

The Court also declined Mobile Infirmary's invitation to revive the $400,000 non-economic damage cap in medical malpractice actions, that was overturned in Moore v. Mobile Infirmary Ass'n, 592 So. 2d 156 (Ala. 1991).

JUSTICE LYONS specially concurred, stating that, based on "the state of the law and Mobile Infirmary's vouching for the verdict, " he agreed that the trial court did not err in denying Mobile Infirmary's JML motion based on the jury's failure to award compensatory or nominal damages.

JUSTICE JOHNSTONE concurred in part and dissented in part, stating: "The defendant, by agreeing that the jury could return its punitive damage award in conjunction with its zero compensatory damage award, waived any right to a jury quantification of the plaintiff's compensatory damages."

JUSTICE WOODALL concurred in part and dissented in part, "because I would affirm the judgment of the trial court unconditionally." JUSTICE WOODALL also said that he could not reverse the judgment, given that "Mobile Infirmary never requested any such [special] interrogatory and never argues on appeal that any such should have been propounded. Having actually rejected the arguments made by Mobile Infirmary, this Court should simply affirm the judgment of the trial court."

JUSTICE HARWOOD concurred in part and dissented in part, agreeing with the dissents of JUSTICES JOHNSTONE and WOODALL and further ntoing that Mobile Infirmary never even asked for a new trial in its post-judgment motions, because its lawyers were so certain (on the record) that the case would be reversed on other grounds.

COMMENTARY: These decisions may indicate a more reasonable mindset in the present Supreme Court (as has been the case in the past) on the relative merits of punitive damage awards. The remittitur result in Mobile Infirmary v. Hodgen is troubling, if you consider the notion (implicit in the special writings of the dissenting members of the Court) that the remittitur was not sustained by the record.

This article first appeared in the Alabama Trial Lawyers Journal, Winter 2003, Volume 23, Number 1 issue.