Sever Alabama Tort Claims from Adjoining Workers' Comp Claim for Quick Appeal
Imperial Aluminum-Scottsboro, LLC v. Taylor Released July 24, 2015 The employee filed suit against the employer asserting a workers' compensation claim, retaliatory discharge and the tort of outrage. Upon the case being filed the employer filed a Rule 21 Motion to Sever the workers' compensation claim from the retaliatory discharge claim and outrage claim. This included a request that a new case number be assigned to the discharge and outrage claims. However, the trial court entered an order under Rule 42(b) bifurcating the issues and calling for separate trials only. A new case number was ever issued. The discharge and outrage claims were tried before a jury prior to the workers' compensation case being heard. The outrage case was dismissed but the jury awarded compensatory and punitive damages to the employee based on the discharge claim. The employer appealed the jury verdict awarding the employee compensatory and punitive damages as a result of his retaliatory discharge claim. The Alabama Court of Civil Appeals ruled that the retaliatory discharge verdict was not a final order and could not be appealed because the Court had not ruled on the workers' compensation claim that was still pending under the same case number. My Two Cents Based on this ruling, we must assume that the opposite would apply and a ruling in a workers' compensation case would not be final and appealable while related tort claims are still pending. This creates an issue for employers and employees in cases where the employer or employee wants to appeal an adverse verdict in a workers' compensation case that also had a related tort claim still pending under the same case number. In cases were the employer is ordered to pay benefits, would the employer have to go ahead and pay the worker's compensation benefits ordered despite it's desire to appeal the decision or would the pending tort claim stay the workers' compensation order and prevent the employee from recovering until the tort claim was decided and the deadline to appeal had run. In cases where the employee wanted to appeal and adverse verdict they would not be able to have their appeal on the workers' compensation case heard until the tort claims were decided. In cases where this may present an issue, it may be advisable for the parties to request a Rule 21 Severance with a new case number instead of Rule 42(b) Separate Trial order where the tort and workers' compensation claims remain under the same case number. ------------------------------------------- ABOUT THE AUTHOR The article was written by Joshua G. Holden, Esq. a Member of Fish, Nelson & Holden, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers' compensation and related liability matters. Mr. Holden is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. Holden and his firm are members of The National Workers' Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers' compensation and related employer liability fields.