Gibson v. Staffco L.L.C.:
On October 11, 2010, the Alabama Court of Civil Appeals released an opinion dealing with the survivability of a workers’ compensation retaliatory discharge claim.
The employee filed a workers’ compensation claim along with a retaliatory discharge claim against his employer in October of 2008. In July of 2009, the employee died of an unrelated cause. His wife was joined as a plaintiff to represent the estate of the employee in the case. The lower court granted the defendant’s motion to dismiss both claims. The wife filed an appeal as to the retaliatory discharge claim.
Under the Alabama Workers’ Compensation Act, benefits survive a death which is not related to the compensable injury when the degree of the disability has been agreed upon by both parties or ascertained by the court. In order for a tort claim to survive, it need only be filed prior to the death of the plaintiff. The Alabama Court of Civil Appeals found that a claim for retaliatory discharge stemming from a workers’ compensation action is to be treated as a general tort claim and so reversed the judgment of the trial court and remanded the case for further proceedings on the retaliatory discharge claim.
My Two Cents: Although the RD claim survived the dismissal, it will be difficult if not impossible for the estate to prevail without the testimony of the plaintiff. If the decedent employee was deposed before his death, then the deposition can be used in place of live testimony at trial. If not, then the employer will likely win the case by way of summary judgment.