State News : Alabama

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The Alabama Court of Civil Appeals recently released its opinion in Kirby v Jacks Family Restaurants, LP.In that case, the plaintiff filed claims for workers’ compensation benefits, retaliatory discharge, and the tort of outrage against Jacks, its insurance fund, its third party administrator, and its case management company. All of the defendants filed Motions to Dismiss the outrage claim and the trial court granted them. The trial court further certified the judgment on the dismissal of the outrage claims to be a final judgment for purposes of appeal. However, the Court of Appeals held that even though the Order contained language certifying it as final, such certification was not appropriate in the case because the plaintiff’s workers’ compensation and retaliatory discharge claims were so intertwined with the outrage claims. The Court of Appeals noted that the plaintiff relied on facts and circumstances surrounding her injury and her termination to support her claim for the tort of outrage, and that she would rely on the same set of underlying facts in her remaining claims. The Court of Appeals held that it is improper for the trial court to certify a dismissal as "final" when at least some of the issues presented in the claim still pending in the trial court are the same as the issues presented in the claims addressed in the judgment, and repeated appellate review of the same underlying facts would be a probability in the case. Therefore, the Court of Appeals dismissed the plaintiff’s appeal as having been taken from a non-final judgment.

My Two Cents:

When tort claims accompany a workers’ compensation claim, it is common for the trial court to either sever the claims completely and assign new case numbers or keep the claims together and hold separate trials. When the trial court merely orders separate trials, the claims remain joined in one civil action, and any order disposing of anything less than all of the claims and all of the parties will generally not be considered a final order for purposes of appeal. The trial court may include language in an order certifying the order as final (as in this case), but sometimes, that is still insufficient to render an order final for purposes of appeal. On the other hand, if a tort claim is severed from a related workers’ compensation case (assigned a separate civil action number), an order granting summary judgment would be a final order for purposes of appeal. Therefore, it is often wise to ask the trial court to sever an outrage claim, rather than only asking for separate trials.

About the Author

This article was written by Charley M. Drummond, Esq. of Fish Nelson & Holden, LLC. Fish Nelson & Holden is a law firm located in Birmingham, Alabama dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Drummond 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. If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at or (205) 332-3414.